An earlier post in this series appeared on Thursday.

Part #2: Crimes and Doubts

"It's too bad this is the test case for post-conviction DNA testing because it's so screwed up." A Texas blogger on Henry Skinner's case

To some people who've met him at the Polunksy Unit in Livingston, Texas, Hank Skinner does not immediately strike them as an innocent man who's been wronged by the system.  "He's got an attitude toward government and law enforcement that I totally understand," explains Texas Innocence Project founder Jeff Blackburn, "but a lot of people wouldn't. Hank defies the conventional thinking about how somebody who's crusading for his own innocence ought to act as he's pretty adamant about it to the point of being abrasive."

Fifteen years in solitary confinement in a nine-by-twelve cell can toughen a person, and Skinner recently wrote: "Since day one I have been proclaiming my innocence. I did not commit these murders. Everybody, everything in this case, they're liars. All they got is excuses and bullshit."

In the past, he was a hard-drinking, loud-mouth former construction worker who did jail time for theft.  During his years on death row, Skinner has not endeared himself to some prison officials.  In 1998, with Jeff Blackburn as his attorney, he successfully sued officials for opening his attorney-client mail. However, the contraband incident in November 2008 didn't come out as he had hoped. During a shakedown of death row, guards found two SIM "“ i.e., memory "“ cards in Skinner's Bible.  Convinced he had a cell phone hidden someplace, they took Skinner to the infirmary, took an X-ray and found it "“ in his rectum.

The Crimes

It was just before midnight on a stormy New Year's Eve in 1993, when the small house that Skinner shared with his girlfriend and her two sons on a peaceful street in Pampa, Texas, turned into a bloodbath. Forty-one-year-old Twila Busby lay motionless in the living room, strangled and then beaten to death with an ax handle.   Her boys didn't escape the horror either; they died from multiple knife stab wounds.

Pampa police had good reason to suspect Skinner initially.   Three hours after arriving at the crime scene, they found him hiding in a neighbor's house a few blocks away, stumbling and disoriented, his pants and shirt covered in blood. He acknowledged then "“ as he does now "“ that he must have been present at the house when the killings occurred.  But he couldn't have had the physical strength to inflict such brutality, he says, because he was passed out unconscious on the couch from a mix of vodka and codeine.

As alibis go, it sounded pretty feeble, but at trial, toxicology reports supported it. His incapacity at the time of the murders was so severe, one scientist testified, that a moderate drinker with that much alcohol and codeine would “almost certainly be comatose, and in some cases be near death or even dead.”

If not Skinner, then who?  Skinner and his lawyers are convinced that Robert Donnell, Twila’s uncle, was the likely killer. He became mean and violent when he drank, which was much of the time. Witnesses later testified he had been "hitting on" his niece at a New Year's Eve party shortly before the slayings. Rebuffing his advances, she left the party frightened, with her uncle following behind, according to the witnesses.

The pivotal moment of the trial, however, occurred when Harold Comer, Skinner's trial attorney, made the decision not to test any of the DNA evidence from the crime scene.  This is when the best opportunity to test all of it was lost, and the fifteen-year battle began.  Before the trial, prosecutor John Mann had selectively tested three out of a dozen DNA items, and the results confirmed that the blood stains on Skinner's clothing belonged to Busby and her two sons.

Behind the scenes, Skinner says he fought with Comer to test the evidence, so much so that "we nearly came to physical blows over this.  I kept telling him I was innocent and that some of the evidence would show Donnell's DNA."

"This is where things first got screwed up," says veteran Austin capital defense attorney Roy Greenwood. "If my client is being charged with capital murder, and he demands that I request DNA testing, for the purposes of entering a not guilty plea, full DNA testing is going to be requested. From what I know about the Skinner case, if he can be believed, any attorney who fails to investigate DNA evidence is clearly ineffective."

Depending on who you talk to, Comer either made the correct strategic decision not to test the DNA evidence, fearing that it would further incriminate Skinner, or he made a huge mistake"“ that some regard as politically motivated "“ and forever waived Skinner's right to test the evidence.

Comer didn't return my calls, but in September, I received a letter from Skinner.  "Harold Comer is a Judas. He sold me out and sold my life to [D.A.] John Mann for $86,000 to pay his way out of an IRS tax lien debt. That's the real reason Comer didn't test the evidence. He's a good "ol boy and when he was D.A., he got busted stealing $10,000 from the drug forfeiture fund and was forced to resign." (For more – See Post 3- Inside Texas)

Doubts

Skinner's fight to prove his innocence got a big boost when investigative journalism students from Chicago's Northwestern University traveled to Pampa, where they uncovered significant evidence missed by police and prosecutors.  Under the direction of Professor David Protess, Medill Innocence Project students had contributed to the exoneration of eleven innocent men and women, five from death row.

The students were industrious during their five-day trips. They visited the trailer park where Andrea Reed, the prosecution's star witness lived. In the original trial, Reed had testified that when Skinner came to her trailer shortly after the murders, he made incriminating statements and demanded that she not call the police. But in 1997, she told the students that law enforcement had intimidated her into making false statements.

They tracked down friends of Busby's who said that the other potential suspect–her uncle Robert Donnell (who died in 1997) had raped her twice and stalked her at a party on the night of the murders.  Donnell's neighbors told the students they had seen him "tearing the carpeting out of his truck the morning after the crime, scrubbing the interior and repainting the vehicle within a week."  More incriminating, perhaps, was the windbreaker found next to Busby's body "“ one similar to the one Donnell wore "“ covered with human hairs and sweat.  Why, the students kept asking themselves, didn't defense attorney Harold Comer test such crucial evidence at the trial?

And what about the strands of hair found in Busby's hand?  This is where things enter the realm of politics.  Texas style.

(Post 3 – Inside Texas – follows.)

Posted in Skinner v. Switzer, Featured, Merits Cases

Recommended Citation: Mary A. Fischer, Special feature: Texas death row DNA case (Part 2), SCOTUSblog (Oct. 11, 2010, 12:02 PM), http://www.scotusblog.com/2010/10/special-feature-texas-death-row-dna-case/