Wednesday, 9 December 2009

Death-Row Inmate Sues Prosecutor, Seeks DNA Test

December 07, 2009

By Mary Alice Robbins Texas Lawyer

A Texas death-row inmate facing execution next year has sued a Panhandle
prosecutor, alleging she is denying him access to DNA evidence that has never
been tested and could prove he is innocent of murdering three people in 1993.

Henry Watkins Skinner alleges in his original complaint in Skinner v. Switzer
that the refusal by Lynn Switzer, district attorney for the 31st and 223rd
Judicial Districts, to release the biological evidence for testing violates
Skinner's 14th Amendment right to due process and his Eighth Amendment right
to be free from cruel and unusual punishment. Skinner sued Switzer on Nov. 27
in the U.S. District Court for the Northern District of Texas in Amarillo.

In the complaint, Skinner asks the court to declare that continued withholding
of the DNA evidence violates his constitutional rights. He seeks an injunction
requiring Switzer to release certain biological evidence to him - including
vaginal swabs and fingernail clippings from the female victim, any biological
material on two knives found at the murder scene, and blood and hairs on a
jacket found next to the female victim's body - so Skinner can test it at his
own expense.

University of Texas School of Law clinical professor Rob Owen, Skinner's lead
counsel, says Skinner needs to have the evidence tested to file a meaningful
application for clemency.

"I think if the testing is allowed, it will give rise to a new habeas claim in
the state courts," says Owen, co-director of the UT law school's capital
punishment clinic.

As an example, Owen points out that testing of the vaginal swabs from the
female victim's rape kit might show that another person besides Skinner had
sexual contact with her.

Switzer, DA since February 2005, did not return two telephone calls seeking
comment before presstime Dec. 3.
Request Denied

As alleged in the complaint, the following is the procedural background in
Skinner's case: A 31st District Court jury convicted Skinner of capital murder
in 1995 in connection with the deaths of his girlfriend Twila Busby and her
two sons, Elwin Caler and Randy Busby. In 1997 the Texas Court of Criminal
Appeals upheld the conviction and death sentence in Skinner v. State. Skinner
initiated state habeas corpus proceedings in 1998, but his efforts to obtain
post-conviction relief were ultimately dismissed on procedural grounds.

In 1999, Skinner filed a petition for writ of habeas corpus with the U.S.
District Court in Amarillo. The federal court denied the petition in Skinner
v. Quarterman in 2007. In 2008, the 5th U.S. Circuit Court of Appeals granted
Skinner a certificate of appealability on two issues relating to his claim
that he was denied effective assistance of counsel in the guilt phase of his
trial but, after receiving additional briefing, the 5th Circuit affirmed the
U.S. District Court's denial of the writ on July 14.

The 31st District Court entered an order on Oct. 20 setting Skinner's
execution date for Feb. 24, 2010.

On Nov. 25, Skinner filed a petition for writ of certiorari with the U.S.
Supreme Court. A ruling on that petition is pending.

Skinner alleges in his complaint that evidence presented at his 1995 trial
showed Twila Busby was strangled and beaten with an ax handle found at the
scene, her sons received multiple stab wounds and Skinner suffered a cut to
his hand around the time of the murders. While police found blood stains and
other biological evidence throughout the house where the murders occurred, the
state sought DNA testing on only four items prior to the trial. Skinner
alleges in the complaint that no evidence presented at trial proved
conclusively that he committed the murders and that his conviction was based
primarily on the fact that he was in the house at the time of the murders, had
two victims' blood on his clothes and supposedly told a neighbor that he might
have "kicked" Twila Busby to death.

In his complaint, Skinner alleges the following regarding his efforts to
obtain DNA testing: In 2000, John Mann, then-DA for the 31st and 223rd
Judicial Districts, had a private laboratory in Dallas test certain items
found at the crime scene but declined a request by Skinner's counsel to
participate in the testing on a joint basis. Richard Roach, Mann's successor,
also declined Skinner's request to participate in voluntary testing of the

The lab submitted four reports to the district attorney on its results between
Aug. 24, 2000, and Feb. 6, 2001 - the fourth after Mann left office.

In 2001, the Texas Legislature amended Article 64 of the Texas Code of
Criminal Procedure to provide inmates a way to obtain post-conviction DNA
testing. Shortly after the statute took effect in October 2001, Skinner filed
a motion with the 31st District Court to request such testing, but the court
denied his motion. In December 2003's Skinner v. State , the CCA affirmed the
district court on the ground that Skinner failed to satisfy Code of Criminal
Procedure Article 64.03(a)(2)(A)'s requirement that a convict establish by a
preponderance of the evidence the reasonable probability that he would not
have been prosecuted or convicted if the DNA evidence had been tested. Skinner
also sought to obtain DNA testing in connection with his federal habeas corpus
writ petition, which the federal court denied in February 2007. In July 2007,
Skinner filed a second motion for DNA testing with the 31st District Court,
which again denied the motion.

On Sept. 23, according to the CCA's opinion that day, the CCA affirmed the
district court on the ground that Skinner failed to meet Code of Criminal
Procedure Article 64.01(b)(1)(B)'s requirement that a convicted person who
requests testing that was available at the time of trial show it was not his
fault the testing was not done. State and federal district courts have found
that "defense counsel had a reasonable trial strategy for not requesting
testing of the untested items," wrote CCA Presiding Judge Sharon Keller for
the majority. The CCA concluded that "in the unusual case, the interests of
justice do not require testing when defense counsel has already declined to
request testing as a matter of reasonable trial strategy."

Skinner alleges in his complaint that as a result of the CCA's decisions,
Switzer continues to refuse to make the DNA evidence available to him for
testing, "thereby preventing him from gaining access to exculpatory evidence
that could demonstrate he is not guilty of capital murder."

But First Assistant State Prosecuting Attorney Lisa McMinn, who is not
involved in Skinner v. Switzer ,says it is difficult for an inmate to say he
has a right to have DNA evidence tested if he cannot show it would be helpful
to him. If a court ruled that an inmate has such a right without showing the
evidence would help him, "it would be opening the floodgates to every inmate
who requests testing," McMinn says.

Williamson County District Attorney John Bradley, who also is not involved in
Skinner v. Switzer , says the issue is whether a convicted person's request to
test DNA fits within the requirements that the Legislature set for allowing
such testing. Among other things, the statute requires a convicted person to
show he did not already make a decision to bypass testing.

Bradley says an individual cannot decide against testing prior to trial and
later request testing because he believes he might get lucky. "For obvious
reasons, we don't go back and redo things," he says.

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