Today's Houston Chronicle carries an OpEd, "DNA testing works, but not if we fail to utilize it," written by Sam Millsap, the former Bexar County District Attorney. Here's an extended excerpt from this must-read:
Last week, Gov. Rick Perry granted the state's first posthumous pardon to a man who was innocent of a crime for which he had spent 13 years in prison. DNA testing cleared Tim Cole of a rape he did not commit, but unfortunately it came too late — nine years after he had died in prison. The state must do everything it can to prevent this kind of tragedy from happening again.
On March 24, Texas plans to execute Henry Watkins Skinner even though untested DNA evidence could show we've got the wrong man. DNA testing could resolve doubts about Skinner's guilt in the 1993 Pampa slayings of his girlfriend and her two sons, but the state inexplicably has blocked that testing for more than a decade.
I'm not an advocate for Hank Skinner. I'm an advocate for the truth. If DNA tests could remove the uncertainty about Skinner's guilt — one way or the other — there's not a good reason in the world not to do it.
Some taxpayers may grumble at spending the public's money on DNA tests for individuals on death row. That argument doesn't hold water in Skinner's case. In 2000, the investigative journalists at the Medill Innocence Project offered to pay for the DNA tests. Ten years later, that offer still stands. There may be other objections to testing the evidence, but they don't outweigh the potential horror of executing an innocent man.
It is cases like Skinner's that ended my lifelong support for the death penalty. Any system driven by the decisions of human beings will produce mistakes. This is true even when everyone — judges, prosecutors and defense attorneys — is acting in good faith and working as hard as he or she can to get it right.
Tim Cole is only a recent example of the frailties in our criminal justice system. Several years ago, this newspaper argued persuasively that Ruben Cantu, a defendant I prosecuted who was put to death in 1993, may well have been innocent. Twenty years after Cantu's trial, my star witness recanted his trial testimony. Many people consider his recantation credible because he had nothing to gain by reversing his position except a whole lot of trouble.
That case brought home to me, in a way that nothing else could have, that the system we trust to determine who may live and who must die simply doesn't work in all cases. Other investigative stories have revealed that Texans Carlos DeLuna, who was executed in 1989, and Cameron Todd Willingham, executed in 2004, were almost certainly innocent.
Since 1973, 139 people in 26 states have been released from death row based on evidence of their innocence. Eleven of them were in Texas. Many of these people were freed because of DNA evidence. But DNA testing works only if we use it.
Skinner's execution date is just a few days away, but key pieces of evidence have never been tested, including two knives, one of which might be the murder weapon; a man's windbreaker, which had blood, sweat and hair on it and was found next to the victim's body; the victim's fingernails, which may have DNA evidence under them; and samples from a rape kit.
Skinner has steadfastly maintained his innocence, but his trial counsel did not seek DNA testing. His attorney also failed fully to investigate the potential involvement of another suspect. That man, a relative of Skinner's girlfriend, had a violent criminal history and an incestuous relationship with the victim. He had been seen stalking her at a party on the night of the murder and left the party shortly after she did. His whereabouts for the rest of the night remain a mystery.
And:
Attorneys for Skinner have filed an appeal with the U.S. Supreme Court asking the court to stop Skinner's execution in order to decide whether prisoners can use the Civil Rights Act to compel post-conviction DNA testing. That's Skinner's last chance, and I hope the court intervenes. But frankly, I'd rather see Texas clean up its own house on this one. Before we send a man to his death, shouldn't we do everything in our power to be certain of his guilt?
Jordan Smith has written, "Death Row Case Evidence May Never Be Tested," for the Austin Chronicle. The March 12 edition has already been web-posted.
Unless the U.S. Supreme Court intervenes, it is likely that 47-year-old death row inmate Hank Skinner will be executed on March 24 without key pieces of physical evidence in his case ever having been tested. "We continue to hope that the court will intervene to ensure that Mr. Skinner is not executed before the troubling doubts about his guilt can be resolved through scientific evidence," Skinner's attorney, Rob Owen – who is also director of the Capital Punishment Clinic at the University of Texas' law school – told the Associated Press earlier this month.
And:
Gray County District Attorney Lynn Switzer has objected to any testing of this evidence, saying that Skinner had a chance to do so before his 1995 trial but didn't take it – whether that evidence would reveal that she and her predecessors were wrong about Skinner's guilt – allowing a killer to remain on the loose for more than a decade – is apparently none of her concern.
It would seem that the Court of Criminal Appeals, which has so far denied Skinner's appeals to conduct the DNA testing that could either clear his name or definitively prove his guilt, is of the same opinion. In 2001 state lawmakers penned a post-conviction DNA testing law that would allow inmates to have biological evidence tested for cases in which there had previously been no access to testing, advancements in testing might produce more probative results, or, "through no fault of the convicted person," the evidence had not been previously tested, but "the interests of justice require DNA testing." While the third standard would seem to apply to Skinner's case, the courts so far have not agreed: Apparently it is Skinner's "fault" that his lawyer had not previously had the evidence tested. The ruling is troubling to Owens; for starters, it doesn't make sense that Skinner could have waived his right to testing years before the law even existed. But more disturbing, perhaps, is the court's apparent interpretation of the term "fault." In "most places where the law uses the concept of fault it implies ... a lack of diligence" or other culpable state, he said. The CCA's ruling here is a "jarring" redefinition of fault that suggests that if a lawyer advises his client not to conduct testing, for whatever reason, and the client agrees, that could be considered a complete waiver of the right to ever have the evidence tested. "It seems to me they're exalting technicalities over the substance" of the law.
Whether Skinner will ever get a chance to have that evidence tested remains entirely unclear – indeed, he has been seeking access to the evidence since 2000. In November 2009, Owen filed a federal civil suit against Switzer, seeking access to the evidence, arguing that Skinner's right to due process has been violated. The district court and U.S. 5th Circuit Court of Appeals have to date ruled that he is not entitled to that evidence under the federal statute. An appeal of that decision is currently pending before the high court. If the court accepts the case and rules in Skinner's favor, the case will go back to district court, where Skinner will have a chance to argue, once more, that he should be allowed access to the as-yet-untested evidence.
Earlier coverage of the Skinner case begins with this post.
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