Part #1: The Arguments

"Why don't they just test the damned evidence?"

The day of death had arrived. Wednesday, March 24. A light rain began to fall as the prison van transported Henry Skinner to Huntsville.

Skinner writes:  Damn, what a bunch of guns. You ain't never seen so many high tech weapons in your life. Red necks flaunting their toys.  All down the gauntlet were all kinds of officers, civilian personnel, all lined up to see me off. It was easy to tell who was supportive, who was sad to see what was happening and who had the hater attitude ("Die, Skinner, die!"). I just kept my head high and laughed.

Unfortunately this execution was to occur on Lt Raymond Duff's card and no sooner had I come out of the visit booth than he started in with his Robocop routine, trying to show off for the warden and some of the assembled Huntsville brass, jerking around on me, clamping the shackles and cuffs on overly officiously. We had a few tense moments when he tried to twist me around in the visit cage while my legs were stuck between the bench and the wall, nearly broke my ankles.

Back through the gauntlet of gawkers. Most of them looked like a pack of buzzards on a power line just waiting on som' to die. Sad but true.

My lawyers kept telling me I had some chance in the Supreme Court; but you know, all the courts to consider my case so far have turned it down on spurious grounds. The Fed Magistrate's "Findings" in 2006 were a joke. The CCA's Chapter 64 rulings on DNA were worse. The 5th circuit's ruling in July last year was so against the weight of their own prior precedents, I guarantee you Judge Jerry Smith could not look me in the eye with a straight face and justify their idiotic ruling. The Parole Board's denial of a recommendation for commutation or reprieve was laughable. So I fully expected to die. I did not expect zip out of the Supreme Court or Governor Perry.

The urgent call came at 5:15 p.m., forty-five minutes before Henry Skinner was scheduled to die for the brutal 1993 murders in Pampa, Texas of his live-in girlfriend Twila Busby and her two sons.

"Hello, Hank," attorney Doug Robinson yelled excitedly into the phone outside Huntsville's death chamber. "You have the most uncanny sense of timing of anyone I know.  We just got word the Supreme Court granted you a stay!"

Forty-seven-year-old Hank Skinner would have been the fifth person executed in Texas this year, and the near-death experience rattled him for weeks.  "Once you really prepare yourself for death and are convinced of it happening, it seems difficult to come back to life. I still feel death's bony digits clutching at my shoulders, trying to pull me down and over into the abyss."

Now he is hopeful again.  On October 13, a new battle over post-conviction DNA testing begins as the Supreme Court hears arguments in Skinner v. Switzer. Alaska prosecutors won the last round in 2009, when the Justices "“ by a vote of five to four "“ruled that convicted rapist William Osborne had no constitutional right to obtain access to the state's evidence for DNA testing.

Skinner's pro bono lawyers "“ Doug Robinson and Rob Owen "“ are not discouraged by the Osborne ruling, which they believe left a door open to challenge what they claim were "inadequate and unfairly administered state procedures."

"We look forward to the opportunity to persuade the court that if a state official arbitrarily denies a prisoner access to evidence for DNA testing," Owen told the Texas Tribune in May, "the prisoner should be allowed to challenge that decision in a federal civil rights lawsuit."

Texas prosecutors argue that Skinner did not meet a key requirement "“ sufficient evidence to establish his innocence "“  to be eligible for additional testing under the state's 2001 post-conviction DNA law. What's more, they say, he already had his chance to have the evidence tested at his original trial, but chose not to. The time to contest his conviction is over, they insist. (See Post  2 – Crimes and Doubts)

There is plenty of biological evidence left to test from the grisly crime scene:  vaginal swabs, fingernail scrapings, two bloody knives, and hairs found clutched in Busby's fingers. So it is tempting to state what seems obvious: when a man's life or death depends on it, and the evidence still exists, why not just test it?

I wanted to ask Gray County District Attorney Lynn Switzer, who controls access to the evidence that question. Her predecessor, D.A. John Mann (now deceased) prosecuted Skinner at his original trial in 1995.  Skinner himself pleaded with Switzer. "All I'm asking you, Madam, is to do the right thing and test this evidence," he wrote in a five-page letter. "All three of your predecessors in the district attorney's office have said that the evidence in my cases needs to be tested. I'm an innocent man. Don't let me die for something I didn't do, please."

Switzer wouldn't talk to me, citing the ongoing litigation, but her short answer would likely be procedure. Her attorneys "“ Mark D. White and Gregory Coleman, both of whom are in private practice in Texas "“ are convinced that Osborne weighs in their favor, telling the Court in their brief that it had "endorsed giving States wide latitude to devise their own statutory solutions" in problems presented by post-conviction access to DNA testing.

I spoke to Kenneth Rosenstein, the Alaska assistant attorney general who successfully argued Osborne, and he has strong advice for Skinner's lawyers.  "What they should do is follow the law. The answer lies in procedure. There are mechanisms already in place for defendants to get DNA testing and they just want to make an ad hoc argument that I believe is in some sense more emotional than legal.   That's not the way things work in this country."

In May, Switzer made her only public statement on the question, explaining in a letter to a local Texas television station that "there have been so many questions, speculations, allegations and outright misrepresentation in this case that it has been difficult to stand silent. . . .  Skinner had a full and fair trial before a Gray County jury.  He was convicted. The fact that the Supreme Court has granted Skinner's request for a final review of this matter provides an excellent opportunity for the Court to affirm that once a convicted state prisoner has had an adequate opportunity to make a due process challenge to his conviction through a habeas corpus proceeding, other post-conviction proceeds are better left to the states to handle.

"I made the decision to defend against this suit with an eye not only on Mr. Skinner's case but on past and future cases as well. I knew that there were ramifications for District Attorneys all across the state. I felt it was important to stand firm, something that is not always easy to do. If defendants are allowed to "game the system' then we will never be able to rely on the finality of the judgment entered in their cases."

In the country's ongoing wars over capital punishment, finality is a longstanding argument.  To Lynn Switzer, Henry Skinner is just another guilty defendant who is gaming the system and draining it of hundreds of thousands of dollars to postpone his execution.

The emergence of DNA testing, however, "turned that old notion of finality on its head," says Nina Morrison, staff attorney for New York's Innocence Project who worked on Skinner's court briefs.  "When staggering numbers of people were proven conclusively innocent of crimes they didn't commit, a lot of people said, wait a minute, what kind of finality are we talking about if we're talking about executing people who might be innocent.  That may not be the finality we were bargaining for. And maybe we do need to rethink this notion of limiting access to courts or new evidence based on arbitrary time limits."

Many inside Texas believe there's much more at issue in Henry Skinner's case than just procedural questions.  "You've got to know Texas to understand this case," Jeff Blackburn, founder of the Texas Innocence Project told me. "We have a deeply institutionalized culture and the most backward courts in the country that protect the government from criticism or fault at all cost." (For more see Post 3 – Inside Texas)

Then there's Henry Skinner himself.

(Post 2 – Crimes and Doubts–follows.)

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