Friday, November 4, 2011

Judge denies request to test evidence in death row case

That clock keeps a-ticking. That clock that's counting down the days, hours, minutes that Hank Skinner has remaining. Mr. Skinner has another date with the executioner next Wednesday. The State of Texas has another chance to murder Mr. Skinner. Of course it's probably too late for the latest state-sponsored killing to help Rick Perry's sinking presidential campaign.

Mr. Skinner was tried and convicted of the murders of his girlfriend and her two sons in 1993. The state introduced evidence that Mr. Skinner's blood was at the scene. An ex-girlfriend testified that he confessed to her; but, then, she recanted.

There was a great deal of biological evidence that was never tested because Mr. Skinner's attorney was afraid it would (further) incriminate his client. It was a valid fear and one that we have to deal with from time to time. Heads you win, tails you get the needle in your arm.

Among the items that were never tested were a rape kit, biological material found under the victim's fingernails, sweat from a jacket, a bloody towel and knives. To this day no one knows whose DNA will be found. And, thanks to Gray County District Judge Steven Emmert, we're not likely to know.

Judge Emmert, you see, denied Mr. Skinner's petition to have the items tested before his schedule execution. But why?

Why is the state so resistant to testing the items? Is it because someone's worried about what the results might be? Why didn't prosecutors test the items in the first place? If Mr. Skinner's DNA wasn't present, that would constitute Brady material.

The State of Texas is seeking to murder a man. Aren't we entitled to know whether the state is strapping the right man down on the gurney? We're not talking about a wrongful conviction in which an innocent man spends 10 or 20 years in prison (with no hope of ever getting that time back), we're talking about taking a man's life.

From the Texas Tribune 

For a decade, Skinner has sought DNA testing on the additional items, but the state has refused, citing restrictions in Texas' 2001 post-conviction DNA testing law. Last year, less than an hour before he was to be executed, the U.S. Supreme Court granted a stay. The high court sent the case back to the federal district court to decide whether Skinner's civil rights were being violated by the state's application of the 2001 DNA law.
State lawmakers, though, made significant changes to that DNA testing law this year, expanding access and eliminating many of the restrictions the state had previously cited in denying Skinner's requests. In the letter, the group of officials said that change was designed with cases like Skinner’s in mind to eliminate procedural barriers to DNA testing that have “gotten in the way of the search for the truth.”
“That legislation passed with overwhelming bipartisan support, not least because polls show that eighty-five percent of Texans agree that prisoners should have broad access to DNA testing,” they wrote.

The slavish adherence to artificial deadlines allows a judge to avoid making a real decision. Judge Emmert had the opportunity to do the right thing. He had the opportunity to say that if the State of Texas is going to mete out the ultimate punishment then the state needs to be damn sure they're killing the right person. Judge Emmert could have done that. But, instead, he passed the buck. All because a deadline was missed.

For all the talk of the need for finality, no one seems to appreciate that death is final. Once the drugs are pumped into Mr. Skinner's veins it's too late to make certain the state murdered the right person. Once the drugs start flowing, there is no exoneration.

See also:

"Next verse, same as the first," Gamso for the Defense (Oct. 6, 2011)

"To test or not to test," The Defense Rests (Mar. 24, 2010)

"Nope, no balm in Gilead. Sorry," Defending People (Mar. 23, 2010)

"Questions arise over DNA in death row case," Texas Tribune (Jan. 28, 2010)

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