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)

Skinner execution stayed despite Perry's best efforts

changeJustice: Execution set for 6pm CST tomorrow, Hank Skinner needs us now...Tell TX Governor to grant stay!http://cot.ag/bsEfCP

PrisonReformMvt: Call to action! Demand a stay for#HankSkinner Gov Perry 512-463-1782 Fax: 512-463-1849 Main number: 512-463-2000

thetrialwarrior: SPEAK OUT AGAINST INJUSTICE: Call Texas Gov. Perry 512-463-1782 and urge him to stay #HankSkinner's execution to allow a DNA test.

Messages bounced everywhere across the Twitterverse yesterday regarding the pending execution of Hank Skinner. Scarely an hour before the State of Texas was set to pump poison through Mr. Skinner's veins, the United States Supreme Court granted a stay of execution.

For an excellent analysis of the procedural history of Mr. Skinner's case, please see Houston criminal defense attorney Mark Bennett's blog post.

Back in Twitterville, tweeple were congratulating each other for their efforts in sparing Mr. Skinner's life (at least for now). However, social media had nothing to do with the Supremes' decision late yesterday afternoon. Moreover, the blow-dried one, Governor Rick Perry, ignored the deluge of phone calls, faxes, e-mails, and tweets. You see, there's nothing to be gained for Gov. Perry in delaying the execution. The votes of death penalty abolitionists and criminal defense attorneys aren't enough to make the governor think twice about allowing the murder of a man to go forward.

Perry has sabotaged (successfully to date) the work of the state forensic science commission in looking at the Cameron Willingham case. Perry's supporters don't care about due process and claims of actual innocence -- they want blood. And that blood is what will keep Perry on the public dole for another four years.

To test or not to test...

So the revolving door in the death house keeps a-spinning as one Hank Skinner is scheduled to be the next guest of honor at the Executioner's Ball tonight. Now I'm not going to try to lay out an eloquent argument that Mr. Skinner should not be murdered tonight because that has already been done by my colleague, Houston criminal defense attorney, Mark Bennett, Texas journalist Brandi Grissom and Canadian attorney Antonin Pribetic.

One of the criticisms of Mr. Skinner's trial attorney, Harold Comer (who ironically prosecuted Mr. Skinner for assault and theft) was that he never had DNA testing performed on biological material collected at the scene but never tested by the state. As Mark Bennett points out, it was probably because Mr. Comer was afraid of what the tests might reveal. However, by not having the material tested it becomes a flag you can wave at the jury.

"Why didn't the prosecutor test the material? If he had we would know for certain who committed this crime. Was it because he was afraid it would show someone else did it? Was it because he was lazy? If the existence of this untested material makes you think twice about whether Mr. Skinner committed this crime, that's called reasonable doubt -- and that means that Mr. Skinner is not guilty."

Is that what Mr. Comer did? No, it's not. He probably just assumed it would make things worse for Mr. Skinner (how it would make things worse, I'm not certain). My point is, though, that there are sound reasons for not testing, or retesting, evidence in certain cases.

In a DWI case, for instance, if a blood draw was conducted and the results of the blood test show your client had an alcohol concentration of over .08, do you really want to test the other sample? If you do and you don't put your expert on the stand to testify as to the result, the prosecutor will know why -- and, so will the jury. In most cases you're better off attacking the lab procedures, the chain of custody or the actual physical draw itself.

If the drunk driving case is based on a breath test I always ask the state's expert about the Toxitrap -- a device made by the manufacturer of the Intoxilyzer that can preserve a breath sample for retesting. The last thing I want is for the state to start using the Toxitrap. I don't want the breath sample preserved. I don't want to retest it on a gas chromatograph. I want to use the fact that the State of Texas won't spend $2 to preserve evidence in a criminal case. I want the jury to feel that it isn't fair that the state's breath test machine destroys the only evidence.

But back to Mr. Skinner for a minute, why is the state opposed to testing the biological material pursuant to Chapter 64 of the Texas Code of Criminal Procedure? The duty of a prosecutor is to see that justice is done -- when a man's life is at stake, shouldn't we be certain we're killing the right person?