Following yesterday's hearing Rob Owen, counsel for Hank Skinner, ssued the following statement:
"Based on the magistrate judge's comments during the hearing today in federal district court, the focus of this controversy regarding DNA testing will now likely shift to the state courts. It will now be up to the state courts to decide if Mr. Skinner gets access to the DNA testing that we have been pursuing for more than 10 years in his case. The Texas legislature changed the law this year to eliminate disputes over assigning fault for why DNA testing was not previously performed. The State conceded in federal court today that the legislature intended that change in the law to reach Mr. Skinner. The State should stop wasting taxpayer money fighting the DNA testing in Mr. Skinner's case. At a minimum they should drop their insistence on executing Mr. Skinner on November 9 so that the courts have adequate time to settle this issue."
Owen is Co-Director of the Capital Punishment Center at the University of Texas School of Law.
AP coverage of the hearing is by Betsy Blaney, "Death row inmate asks court to keep lawsuit alive." It's via the Lubbock Avalanche-Journal.
Skinner, 49, came within an hour of lethal injection last year before the U.S. Supreme Court stepped in and now has a Nov. 9 execution date. His lawsuit claims the state violated his civil rights by withholding access to the evidence he wants tested. Monday’s hearing came after the U.S. Supreme Court ruled in March that Skinner could ask for the untested evidence, but left unresolved whether the district attorney had to surrender those items. A state court will make that decision.
Skinner’s attorneys asked U.S. Magistrate Judge Clinton E. Averitte to recommend the civil rights suit not be dismissed until the state court acts. A final ruling on the lawsuit will be issued by U.S. District Judge Mary Lou Robinson in Amarillo.
The request for DNA testing is the third from Skinner, but the first since a state law about evidence testing took effect Sept. 1. The new law allows DNA testing of evidence even if the offender chose not to seek testing before trial.
"Skinner Lawyer: DNA Decision Likely Up to State Court," is the title of Brandi Grissom's Texas Tribune post.
For years, 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. After a subsequent hearing, 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 in restricting the DNA testing Skinner requested.
That was the question before the federal court in Amarillo today. State lawyers argued that Skinner had his chance at trial to have all the DNA testing done, but he forfeited that opportunity and is now trying to game the legal system to stall his demise. "If Skinner is allowed to test this DNA evidence, then every guilty criminal defendant will want to forgo DNA testing at trial and then use the untested DNA evidence as a post-conviction litigation tool to endlessly delay or hinder implementation of the sentence," state lawyers wrote in a brief to the court.
But the primary question the federal court had to answer about whether Texas' DNA testing law violated Skinner's civil rights faced a major change during the legislative session this year.
Lawmakers passed a measure that expanded access to DNA testing and eliminated the limits that prosecutors have cited in their objections to Skinner's requests. State Sen. Rodney Ellis, D-Houston, who helped write the bill, has said that Skinner's case is one the law was designed to affect.
Last month, Skinner's lawyers filed a request in Gray County District Court for DNA testing under the new law. They are now awaiting a decision on that request.
"The State conceded in federal court today that the legislature intended that change in the law to reach Mr. Skinner," Owen said in an emailed statement. "The State should stop wasting taxpayer money fighting the DNA testing in Mr. Skinner's case. At a minimum they should drop their insistence on executing Mr. Skinner on November 9 so that the courts have adequate time to settle this issue."
The Amarillo Globe-News report is, "Wrangling continues in Skinner DNA case," by Bobby Cervantes.
The federal case Monday stemmed from a U.S. Supreme Court ruling in March that allowed Skinner to use a federal civil lawsuit to advance his motion for DNA testing. The suit states that 31st District Attorney Lynn Switzer violated Skinner’s civil rights by not turning over crime scene evidence he long has said would exonerate him and possibly implicate Busby’s late uncle as the real killer.
Skinner has identified seven items that were never tested: a blood-splattered windbreaker often worn by Busby’s uncle, hair found next to her body, two knives, a rape kit, her fingernail clippings and a bloody dish towel.
Monday’s hearing centered largely around how two appeals cases might affect Skinner’s latest motion, filed Sept. 6 and still pending in 31st District Judge Steven Emmert’s court.
Earlier coverage of Hank Skinner's case and his struggle for DNA testing begins at the link.
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