Friday, 7 May 2010
By Gaby Fleischman and Emily Glazer
May 2, 2010
LIVINGSTON, TEXAS – For the past five weeks, Henry “Hank” Skinner wakes up hoping to hear that the Supreme Court has taken his case, and given him a chance to leave Texas Death Row a free man.
On Monday, the Supreme Court is expected to make its decision. Since granting Skinner a stay of execution on March 24, there have been three delays.
“Every Monday morning I come out on pins and needles, about to have a stroke,” he said. “In a way you're relieved, but then I’ve gotta live the rest of this week wondering what’s gonna happen now.”
Skinner, who was convicted of a triple homicide in 1995, has been on Death Row for 15 years. Less than an hour before his scheduled execution, he was told the high court had spared his life – at least for the time being.
If the Supreme Court takes the case, it could lead to DNA testing of all the crime scene evidence. Much of the physical evidence in Skinner’s case has yet to be tested and could conclusively prove his guilt or innocence.
“I was trying to get the DNA tested because I really feel that’s my last chance to prove my innocence,” Skinner said in an interview Wednesday afternoon.
Skinner has always maintained his innocence. He was sentenced to death for the brutal murders of his live-in girlfriend, Twila Busby, and her two sons, Randy Busby and Elwin Caler. Skinner does not deny being present at the time of the murders, but says he was passed out from a combination of codeine, alcohol and anti-anxiety medication. According to toxicology reports, Skinner would have been in a near-comatose state. He was found several hours later at a neighbor's house, his clothing stained with blood from two of the victims. All of his appeals have been denied, leading him to ask the Supreme Court to review his case.
After the Court granted the stay of execution, Skinner and his legal team said they thought they would hear an update the following Monday, March 29. But Monday came and went without word from the nine justices.
Waiting for the Supreme Court decision has not been easy for Skinner. He compared the experience to a game of Russian Roulette.
“The first 20 or 30 times it would scare you, but after 20 years when someone does that to you…you’d just become so unaffected by it,” he said.
Doug Robinson, one of Skinner’s appellate lawyers, has also anxiously awaited the decision.
“The last two Mondays I sat at my computer just hitting the refresh button on the Supreme Court website waiting for that order list to come up,” he said.
Robinson said he does not think the decision will be a “plain old ordinary” denial of a writ of certiorari, the most common way the Court is asked to hear a case. (Last term, the justices denied 98% of all such writs.)
There are many possibilities, but Robinson said it’s probable there could be a denial of certiorari with a dissent, which means the Supreme Court would not take the case over the written objection of one or more of the justices.
Another possibility is a summary judgment where the Court orders a hearing on the DNA evidence in the federal district court. Down the road, this could turn into a suit based on federal civil rights law, Robinson hopes.
“If we’re successful, it would provide a means by which a lot of other prisoners in Hank’s situation could get DNA testing,” he said.
Skinner’s legal team has been unsuccessfully pushing for complete DNA testing for the last decade.
The current Gray County District Attorney, Lynn Switzer, has repeatedly refused to release the biological evidence for DNA testing.
“It's already been handled,” Gray County District Attorney Lynn Switzer told the Texas Tribune on March 30. Switzer is the third district attorney in Pampa involved with the Skinner case, but she is the one being sued to release the DNA evidence.
“He doesn't need to keep trying it over and over and over again. It's already been handled.”
In legal documents opposing the DNA testing, lawyers for Switzer have contended there was sufficient evidence to convict Skinner without additional DNA testing and that Skinner waived his rights to new tests when he didn't request them before his trial.
Harold Comer, Skinner’s attorney at the time, did not respond to repeated interview requests.
Some evidence that was tested did not match Skinner, including a head hair found in Twila’s hand and blood found on the sidewalk in front of the home. The majority of the evidence found at the crime scene, including the murder weapons, the rape kit, skin cells under Twila’s fingernails, and a windbreaker found next to her body, have still not been tested. The blood-stained windbreaker was similar to one worn by an alternative suspect in the case -- a man who witnesses saw stalking Twila shortly before the murders.
Skinner said the untested evidence could prove his innocence and unveil the imperfections of the justice system.
“Citizens think in terms of us and them. If you’re one of us, you’re one of the good guys and if you’re one of them, you’re one of bad guys,” Skinner said. “So this evidence…proves that I’m not one of them, I’m still one of us. And if it could happen to me, it could happen to you, your sister, your brother, your son, your daddy.”
Skinner’s two daughters, Kristen Keaton and Natalie Skinner, said they pray the Supreme Court will make the “right” decision. Kristen and Natalie were re-united with their father the day before his scheduled execution.
“I wanted the glass out of the way," Natalie said. "I wanted to be home across the kitchen table or anywhere but where we were…the setting was not proper for the feelings."
Despite the circumstances, just seeing his daughters was life changing for Skinner.
“When my daughters came back into my life, I had a renewed reason to live because of them,” he said.
But for now, like Skinner, his daughters can only wait.
“I’m scared for him,” Kristen said. “I’m scared for him more if he doesn’t get justice, if he doesn’t get a fair shake at this.”
Robinson, Skinner's attorney, said when you’re dealing with a person’s life all the evidence should be tested.
“It should not be the law in this country that it’s possible to execute someone when there is troubling evidence as to their guilt or innocence, and there’s still some uncertainty about it,” he said.
But for now, Skinner’s fate is out of his hands and with the Supreme Court’s decision on Monday.
“I gotta deal with whatever happens and I don’t know what’s gonna happen,” he said. “You just have to try and pull yourself together with every fiber you got and hold on to your sanity.”
Rachel Cicurel and Alexandra Johnson contributed to this article.
Editor's note: The Supreme Court on Monday, May 3 once again failed to announce a decision in the Skinner case. No reason was given for the delay, the fourth time the justices have met to consider the case without issuing a ruling. The next date the justices will conference is Thursday, May 13, with announcements of their decisions expected on Monday, May 17.