Nov. 3
TEXAS----impending execution
Hank Skinner, Texas Death Row Inmate, One Week From Execution Despite Untested
Evidence
A week from yesterday, Texas death row inmate Henry "Hank" Skinner is scheduled
to be executed for the 1995 murders of Twila Busby and her 2 adult sons.
If that happens, it may be the biggest travesty of justice in the modern death
penalty area. That isn't necessarily because Skinner is innocent. He may be
guilty. I don't know. The problem is that the state of Texas also doesn't know.
There is DNA from the crime scene that could exonerate Skinner -- or could
affirm his guilt -- that has never been tested. That includes blood from the
murder weapon, blood from a jacket left in Busby's home, a rape kit taken from
Busby, scrapings from under Busby's fingernails and hairs she was clutching at
the time of her death -- hairs that likely came from her killer. For more than
a decade, Hank Skinner's legal team has tried to get that evidence tested, at
no cost to the state of Texas. And for more than a decade, the Texas 31st
District Attorney's Office has refused.
Skinner isn't exactly a poster boy for wrongful conviction. He had previously
been convicted of assault, and by his own admission he was at the scene of the
crime the night of the murders. Skinner's neighbor and ex-girlfriend told
police that Skinner came to her home after the crime and implicated himself,
then rattled off a number of contradictory stories.
But Skinner has maintained from the night he was arrested that he was passed
out from a mixture of alcohol and codeine when the murders were committed. His
defense team has produced testimony from toxicology experts who say Skinner had
far too high a concentration of the drugs in his system for him -- a slight man
at the time -- to have killed an adult woman and her two adult sons. At best he
was groggy. He was likely unconscious. The state did conduct DNA testing on
blood smears on Skinner's shirt, which matched two of the victims. But that
could be consistent with Skinner's story, which is that he woke to find the
bodies and tried to jostle the victims to see if they were still alive.
In 1999, journalism students at Northwestern University's Medill Innocence
Project began investigating Skinner's case. Andrea Reed, Skinner's neighbor and
ex-girlfriend, told them police had pressured her into giving false statements
about Skinner, and that she no longer stood by the statements she gave on the
night of the crime. The students also identified another potential suspect.
Friends and acquaintances of Busby say she had recently been stalked by an
uncle named Robert Donnell. Busby told friends that Donnell had recently raped
her. The students also discovered that Donnell had approached Busby at a party
on the night of her death, and that neighbors had seen him cleaning and
repainting his truck a few days after the murders. Donnell had also been seen
wearing a windbreaker similar to the one left at the crime scene.
Donnell died in a car accident in 1997, two years before the Medill class took
up the case. He was never considered a suspect by the police or the district
attorney.
It's possible that a reasonable person might review the Medill students' work
and still not find it convincing enough to overturn Skinner's conviction.
Perhaps Reed's recantation years later isn't as credible as her statements to
police on the night of the murders. Maybe it isn't plausible that Skinner could
have slept through three violent murders, even while under the influence of
booze and codeine. What's simply unfathomable -- especially if you believe the
criminal justice system is in any way a quest for truth -- is that there is
evidence that could confirm or disprove Skinner's story, and that he could be
executed before it gets tested.
On a 2000 episode of the Nancy Grace show, Skinner advocate and Medill
Professor David Protess challenged the then-D.A. to test the hairs Busby held
at the time of her death. The prosecutor agreed. But when preliminary
mitochondrial testing suggested a good chance that the hairs didn't belong to
Skinner, the prosecutor halted any further testing on the hairs or on any of
the remaining untested evidence.
"They only tested the material they thought would implicate Skinner," Protess
told me in an interview last year. "They fixated on their suspect, and once
they thought they had enough for a conviction, they stopped."
The D.A.'s office has since been dogged in its determination to proceed with
the execution of Hank Skinner before there's any more testing. Texas law does
give inmates the right to post-conviction DNA testing if they can show such
testing would establish their innocence, but prosecutors in the case have
argued for the last 10 years that the law does not grant testing to inmates who
could have requested such testing at trial but did not.
The courts have agreed. The justification for the exception is that a guilty
man could game the system by refusing or even fighting testing at trial, then
fight for testing after conviction to buy himself some time before sentencing
is carried out.
It isn't a very convincing argument, given that DNA testing would take at most
a few months. If Skinner is indeed guilty, and if prosecutors had allowed for
the testing back when Skinner's attorneys first requested, Skinner would have
been executed years ago.
The other problem is that Skinner did ask for testing at the time of trial. His
court-appointed attorney made a strategic decision to disregard his client's
wishes, believing the testing would implicate him. That attorney, Harold Lee
Comer, was a disgraced former prosecutor who lost his job after he was caught
stealing money seized in a drug case. Skinner's trial judge, a friend of
Comer's, assigned the attorney to represent Skinner and ordered him to be paid
roughly the amount Comer owed the state for his own misconduct. In fact, Comer
had actually prosecuted Skinner on an assault charge years earlier. So even if
Texas law did allow prosecutors to refuse post-conviction DNA testing in cases
where a defendant declined to pursue the testing at trial, it's not clear why
that should apply in Skinner's case.
Last year, with Skinner less than an hour from execution, the U.S. Supreme
Court granted a stay to consider whether federal civil rights law may allow
Skinner to challenge the way Texas courts have interpreted the state law that
allows inmates to get DNA testing post-conviction. In March the Court ruled 6-3
that it did. The Court didn't order the DNA testing. Rather, the decision only
granted Skinner the ability to argue in federal court that Texas state courts
had erred in how they applied the state's DNA testing law.
The Texas legislature has since rendered that question moot. Last June, both
houses overwhelmingly passed a revision to the DNA testing law to clarify that
inmates should be able to request testing even if their counsel did not request
any at trial. Lawmakers even cited Skinner's case in passing the legislation.
Hank Skinner, it seemed, would finally get his DNA tests.
And here's where D.A. Lynn Switzer began to appear determined to carry out the
execution of Hank Skinner. The new law took effect on Sept. 1, 2011. Skinner's
attorneys immediately filed for testing under the new law. Switzer's office
responded by requesting an execution date. They got it: Nov. 9.
What happens from here isn't clear. A Texas state court is currently
considering Skinner's petition for testing under the new state law. It seems
likely that will be granted. At the same time, a federal court has kept
Skinner's federal claim open in the unlikely event that the state court rules
against him. But here's the strange thing: Skinner could still be executed
before any of that is settled. In fact, that's exactly what many think
Skinner's prosecutors are trying to have happen.
"Their position is that the evidence against Skinner is so overwhelming, no DNA
test results could establish his innocence. We obviously think that isn't
true," said Robert Owen, Skinner's attorney and co-director of the Capital
Punishment Clinic at the University of Texas. "If the rape kit, the hair, the
blood from the murder weapon and blood found elsewhere at the crime scene that
didn't belong to the victims all fit the profile of a single person, and that
person isn't Skinner, then I think it becomes clear that Skinner is innocent."
If Skinner is executed, it's unlikely we'll ever know about his guilt for
certain. "It's something I'd rather not think about right now, but as far as I
know, once he's been executed, there's nothing to prevent the prosecutors from
destroying the DNA evidence," Owen says.
Several authorities could still prevent Skinner's execution. The federal court
could issue a stay until the legal issues are sorted out, as could the state
court. Skinner's trial judge could also postpone the execution date. Texas Gov.
Rick Perry could issue a 30-day stay to allow for the DNA testing. Former Texas
Gov. George W. Bush did just that in 2000, granting a stay to Rickey Nolen
McGinn. Those DNA test results affirmed McGinn's guilt, and McGinn was
executed. McGinn may have lied his way into another month of life, but the
state of Texas got confirmation it was executing a guilty man. That hardly
seems like a bad deal for Texas.
Of course, none of those other authorities should need to act. If District
Attorney Lynn Switzer is able to put together a legal argument that allows her
to execute Hank Skinner without first testing critical DNA evidence, even in
spite of the new Texas law, it would represent a massive failing of the Texas
and federal criminal justice systems. It would be an even greater failing if
Skinner is executed before these questions are even settled.
But all of this ignores the fact that Switzer isn't required to make any of
these arguments in the first place. It's one thing for a prosecutor to argue
she has reviewed all the evidence in a case, and is still convinced of the
defendant's guilt. The prosecutor, the courts and the public should not remain
ignorant about critical evidence that has the potential to exonerate a man who
is about to be executed.
The Hank Skinner saga touches on a number of lingering and important questions
about the criminal justice system. But if Lynn Switzer is so convinced of Hank
Skinner's guilt, she could agree today to turn over the DNA evidence for
testing. Why she won't -- and why she and too many prosecutors like her get
elected and reelected -- may be the darkest and most troubling questions of
them all.
There are a number of sensible, easy-to-implement reforms that could improve
the criminal justice system. But the biggest and most important challenge may
be figuring out how to fill prosecutors' offices with people more interested in
achieving justice than winning and preserving convictions.
UPDATE: The trial judge in Hank Skinner's case again denied DNA testing
Thursday afternoon, in spite of the new Texas law.
In an emailed statement, Skinner attorney Robert C. Owen told The Huffington
Post, "We are deeply disappointed that the trial court has denied Mr. Skinner's
request for DNA testing. Unfortunately, the trial court's order offers no
explanation for its conclusion that DNA testing is not called for in this case.
It will now be up to the Court of Criminal Appeals to give Mr. Skinner's case
the deliberate consideration that is necessary to ensure a correct result. We
are confident that upon such careful review, the Court will conclude that DNA
testing is necessary in this case to ensure the reliability of the verdict. But
for now, the Court of Criminal Appeals must stop the scheduled November 9
execution rather than allow itself to be rushed to a hasty and ill-considered
decision. The stakes in this case are too high to allow Mr. Skinner to be
executed before he has a fair chance to make his case that the trial court made
a grave mistake..."
(source: Radley Balko.Senior Writer and Investigative Reporter, The Huffington
Post)
****************************
Judge denies DNA tests before Texas execution
A judge has denied a Texas death row inmate's request for testing of DNA
evidence his attorneys say could prove his innocence, less than a week before
the man is set to be executed.
Hank Skinner, 49, is scheduled to be executed Wednesday for the 1993 deaths of
his girlfriend and her 2 sons. Skinner's attorneys had asked for testing of DNA
evidence that was not tested before his 1995 trial.
But Judge Steven R. Emmert denied Skinner's request in a brief order issued
Wednesday and made public Thursday. The order did not explain the judge's
decision.
Skinner's attorneys said they are "deeply disappointed" and plan to appeal
Emmert's ruling with the Texas Court of Criminal Appeals.
"The stakes in this case are too high to allow Mr. Skinner to be executed
before he has a fair chance to make his case that the trial court made a grave
mistake in denying his request for DNA testing," said Robert Owen, an attorney
for Skinner.
A spokesman for the Texas Attorney General's Office, which is handling appeals
in the case for prosecutors in Gray County, said his office was reviewing
whether it would have any comment on the judge's ruling.
Prosecutors have called the DNA testing request merely an attempt by Skinner to
delay his execution again. Last year, Skinner came within an hour of lethal
injection before the U.S. Supreme Court stepped in.
Skinner also has filed a federal lawsuit claiming Texas violated his civil
rights by withholding access to the evidence. That lawsuit has been put on hold
until Skinner's appeals run through the state courts.
Skinner was sentenced to death for the 1993 deaths of his girlfriend,
40-year-old Twila Busby, and her sons Elwin "Scooter" Caler, 22, and Randy
Busby, 20. The victims were strangled, beaten or stabbed on New Year's Eve at
their home in Pampa in the Texas Panhandle.
About 3 hours after their bodies were discovered, police found Skinner hiding
in a closet in the home of a woman he knew. Tests showed that blood from at
least two victims was on him, and authorities said a trail of blood led police
from the bodies to his hiding place a few blocks away.
Skinner has acknowledged being inside the house where the killings took place
but has insisted he couldn't be the killer because he was passed out on a couch
from a mix of vodka and codeine.
The evidence Skinner sought was not tested at the time of Skinner's trial
because his lawyer feared the results would hurt his case. But his attorneys
recently argued that forensic DNA testing "has a strong likelihood of
confirming Mr. Skinner's claim."
The untested evidence includes vaginal swabs taken from Busby during an autopsy
and 2 knives found in or around Busby's home.
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.
Prosecutors maintain Skinner's claims about the evidence aren't new and other
courts already have decided the issue.
Last month, a group of current and former prosecutors and lawmakers sent a
letter asking Texas Gov. Rick Perry and other state officials to delay
Skinner's execution so the DNA evidence could be tested. Perry's office said it
was "a matter pending before the courts."
(source: Houston Chronicle)
**************** ----female death sentence overturned
Appeals court overturns death penalty for Mansfield woman
After a 4-year legal fight, the state's highest criminal court has overturned
the death penalty for Chelsea Lee Richardson for her capital murder conviction
in the death of her boyfriend's parents in Mansfield.
The Texas Court of Criminal Appeals issued an opinion today, agreeing with the
trial judge that there was misconduct by then-prosecutor Mike Parrish when he
withheld key evidence from the defense during the punishment phase of
Richardson's trial.
Her attorney, Robert Ford, said a deal has been reached with the Tarrant County
District Attorney's office for Richardson, now 27, to receive a life sentence.
Because she will be subject to the penal code that was in place in 2005, when
she was convicted, she would be eligible for parole after serving 40 years.
Richardson and her boyfriend, Andrew Wamsley, were each convicted of capital
murder in the death of Rick and Suzanna Wamsley of Mansfield. Wamsley got a
life sentence.
A friend, Susana Toledano, struck a deal with prosecutors and testified against
the others in exchange for a life sentence.
Parrish, who left the district attorney's office in 2008 before current
District Attorney Joe Shannon took office, testified that he received a private
reprimand from the State Bar of Texas, Ford said.
Shannon has said he would not participate in inflicting the death penalty in a
case "when there is even an appearance of impropriety on the part of a
prosecutor who formerly worked in this office."
(source: Fort Worth Star-Telegram)
**********************
Texas Execution of a Man Believed to Be Innocent Continues to Draw Attention
The Texas Forensic Science Commission on Friday found that unreliable fire
science methods, which led to the wrongful conviction of Cameron Todd
Willingham, are still in use.
Mr. Willingham was convicted of setting the fire that killed his three young
daughters in 1991. Shortly before he was executed in 2004, an internationally
known arson scientist reviewed the evidence in his case and concluded it was
flawed. Governor Rick Perry declined to stay the execution.
The Commission's examination of the forensic evidence that led to Mr.
Willingham's conviction was restricted this summer when Texas Attorney General
Greg Abbott issued an opinion barring the Commission from considering evidence
gathered or tested before 2005.
Despite the limitations on its jurisdiction, the Commission acknowledged in its
October 28, 2011, amended report that unreliable fire science played a role in
Mr. Willingham's conviction. It identified faulty assumptions and methods in
the Willingham case that continue to be used today, and issued 17
recommendations for improving arson investigations in Texas.
The Commission also recommended that Texas arson investigators adopt national
standards and establish a timeline for all to receive advanced training. Its
recommendations also include new certification criteria for expert witnesses,
and additional rules and regulations aimed at preventing the use of outdated
science and improving the quality of testimony and analysis.
The Commission's findings, and the limitations placed on its investigation,
raise troubling questions about the reliability of the death penalty.
(source: Equal Justice Initiative)
NEW YORK:
Herzog’s ‘Into the Abyss’ to Open DOC NYC Festival Tonight
Werner Herzog’s new documentary on the death penalty, Into the Abyss, opens the
DOC NYC festival tonight at the IFC Center. If anyone can handle such a
polarizing topic without oversimplifying to the point of condescending
didacticism it is Herzog, perhaps the greatest filmmaker alive today.
Indeed, early accounts point to film being remarkably even-handed. While
Herzog’s stance is staunchly against the death penalty, he is not the type of
lazy filmmaker to assume all watching share his views or must be bludgeoned
with them (see Michael Moore). As Roger Ebert put it (in a rare moment of
coherence and relevance), “In this film, Herzog simply looks. He always knows
where to look.”
The film centers around Michael Perry, a 28-year-old on death row for the
murder of Sandra Stotler during a burglary in October 2001. This has
unsurprisingly led to comparisons with Truman Capote’s classic In Cold Blood,
with some critics citing Herzog’s latest film as a cinematic equivalent to that
watershed work of non-fiction. In the film Herzog interviews Perry just eight
days before his scheduled execution, as well as his accomplice Jason Burkett
(who is serving a long prison-term). But he doesn’t stop with such a reductive
view: he also interviews the friends, family and neighbors of the men involved
as well as those close to the victims, in an attempt to arrive at a larger
picture.
Herzog’s last film was the breathtaking Cave of Forgotten Dreams, which
premiered at last year’s DOC NYC Festival, a landmark in the use of 3-D
technology in film and a mesmerizing and historically important work regardless
of how it was filmed. Other recent Herzog documentaries include Enounters at
the End of the World, and the unintentional dark-comedy Grizzly Man.
Into the Abyss opens in theaters November 11th.
(source: The Faster Times)
CALIFORNIA:
Cal's death penalty ban likely to extend into 2013
The moratorium on California's death penalty will likely extend into 2013.
Government lawyers on Wednesday agreed to resume their court battle with inmate
lawyers no earlier than September, which will push back any scheduled
executions into 2013 because of the time it takes a judge to rule and the
expected appeals by the losers.
A federal judge halted executions nearly six years ago after finding flaws in
California's executions process. Prison officials have since revised their
procedures, which death row inmates allege are still flawed and exposing them
to cruel and unusual punishment.
Another judge in Marin County is scheduled to hear arguments Friday over
whether prison officials followed proper procedures in revising the lethal
injection process. There are 720 inmates on California's death row.
(source: Associated Press)
SOUTH CAROLINA:
Death of 5-year-old has lawmakers looking to pass new billM
In the wake of 5-year-old Allison Griffor's death, Rep. Chip Limehouse and Rep.
Wendell G. Gilliard are working on a new bill that would strengthen penalties
for those who discharge firearms into or at homes.
"In essence, treat homes as if they were people because when you shoot into a
home and you murder anyone, that is a very, very heinous crime. We need to have
our state laws reflect that," said Limehouse.
Allison Griffor died at MUSC on October 28 from injuries she received when
someone fired a gun through the door of her home. The incident has been the
topic of much discussion, as investigators with multiple law enforcement
agencies continue to look for leads that may lead to the person or persons
responsible for her death.
"The entire community is hurting over Allison's death," said Limehouse. "The
death of a child is the worst thing that can happen to a family."
According to Limehouse, a spokesperson for the Griffor family suggested the
newly proposed law be named in honor of Allison.
"We want the strictest penalties we can apply. If there is a death of a person,
then certainly the death penalty ought to be implied."
Limehouse said on Wednesday the new bill has already been filed and is a
combination and revision of drive-by shooting and home invasion bills
previously introduced by Rep. Gilliard.
"I don't believe the penalties for firing into a house are the same as murder
in the first degree. You can't say it was an accident. It was not an accident.
That's what we're working through right now."
The 2 lawmakers hope the bill would make it so that anyone found guilty of
shooting into a home could be held to the same group of charges as anyone who
has shot at a person.
State lawmakers will take up Allison's Law in January.
(source: WCIV News)
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