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update Hank Skinner
Tue Oct 25, 2011 10:27pm

This e-mail contains a statement from:

Hank Skinner's Attorney

News articles from:

AP - Death row inmate asks court to keep lawsuit alive

Texas Tribune - Skinner Lawyer: DNA Decision Likely Up to State Court

Amarillo Globe-News - Wrangling continues in Skinner DNA case

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October 24, 2011

The following is a statement from Rob Owen, counsel for Hank Skinner, in response to today's hearing in federal district court regarding Mr. Skinner's request for DNA testing:

"Based on the magistrate judge's comments during the hearing today in federal district court, the focus of this controversy regarding DNA testing will now likely shift to the state courts. It will now be up to the state courts to decide if Mr. Skinner gets access to the DNA testing that we have been pursuing for more than 10 years in his case. The Texas legislature changed the law this year to eliminate disputes over assigning fault for why DNA testing was not previously performed. The State conceded in federal court today that the legislature intended that change in the law to reach Mr. Skinner. The State should stop wasting taxpayer money fighting the DNA testing in Mr. Skinner's case. At a minimum they should drop their insistence on executing Mr. Skinner on November 9 so that the courts have adequate time to settle this issue."

Rob Owen, Attorney for Hank Skinner and visiting professor of law at Northwestern University in Chicago.

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Monday, Oct. 24, 2011 | via Fort Worth Star-Telegram

Death row inmate asks court to keep lawsuit alive

By BETSY BLANEY | Associated Press

AMARILLO, Texas — A Texas death row inmate just weeks from execution asked a federal court Monday to keep his civil rights lawsuit alive while his attorneys try to get knives and other evidence turned over for new DNA tests they claim will show he didn't kill his girlfriend and her sons nearly two decades ago.

But prosecutors who say Henry Watkins Skinner is just trying to delay his death with a merit-less request asked the court to rule in their favor and dismiss the lawsuit.

Skinner, 49, came within an hour of lethal injection last year before the U.S. Supreme Court stepped in and now has a Nov. 9 execution date. His lawsuit claims the state violated his civil rights by withholding access to the evidence he wants tested. Monday's hearing came after the U.S. Supreme Court ruled in March that Skinner could ask for the untested evidence, but left unresolved whether the district attorney had to surrender those items. A state court will make that decision.

Skinner's attorneys asked U.S. Magistrate Judge Clinton E. Averitte to recommend the civil rights suit not be dismissed until the state court acts. A final ruling on the lawsuit will be issued by U.S. District Judge Mary Lou Robinson in Amarillo.

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.

Rob Owen, one of Skinner's attorneys, said in an emailed statement that lawmakers intended the new law "to reach" Skinner.

"The state should stop wasting taxpayer money fighting the DNA testing in Mr. Skinner's case," Owen wrote. "At a minimum they should drop their insistence on executing Mr. Skinner on November 9 so that the courts have adequate time to settle this issue."

Prosecutors maintain the new law doesn't apply to Skinner, his claims about the evidence aren't new and other courts have already decided the issue. Skinner "still has not demonstrated" how additional DNA testing will prove his innocence, attorney general's spokeswoman Lauren Bean said in an email. She accused him of "resorting to gamesmanship."

"Because Skinner has not met the standards required by law and does not seek to test newly discovered evidence, the Court should deny his claims and prevent Skinner from further delaying justice for the victims' families," Bean wrote.

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 three 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 of 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 murderer because he was passed out on a couch from a mix of vodka and codeine. In a hand-written Aug. 31 affidavit, Skinner told the court: "I am actually, factually and totally, legally and any other definition, innocent of this crime."

However, documents the attorney general's office filed in court Monday said Skinner offered to plead guilty to first-degree murder before his 1995 trial in exchange for a life sentence. Plea negotiations often are kept confidential, but Skinner's federal appeal on ineffective counsel claims waived that privilege, the new document said.

The evidence now being sought was not tested at the time of Skinner's trial because his lawyer feared the results would hurt his case. But his attorneys now argue 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, fingernail clippings, a knife found on the porch of Busby's house, a second knife found in a plastic bag in the house, a towel with the second knife and a jacket next to Busby's body.

Skinner contends that Caler, who had several stab wounds, likely bled on him while trying to roust him from his stupor. Skinner has said the woman's blood likely got on his clothes because they were nearby as she was being bludgeoned with a pickax handle. He and his attorneys point to the woman's now-deceased uncle, Robert Donnell, as the possible killer.

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Skinner Lawyer: DNA Decision Likely Up to State Court

by Brandi Grissom

Following a hearing today in federal court in Amarillo, a lawyer for death row inmate Hank Skinner said it will likely be up to the state courts to decide a decade-long fight over DNA testing in his case. Skinner is scheduled to be executed Nov. 9.

Skinner was convicted in 1995 of killing his live-in girlfriend and her two sons in Pampa. He has maintained his innocence from the start, arguing that he was too inebriated from a mixture of vodka and codeine to overpower the three victims. He argues the DNA testing he seeks could show that another man was the killer.

Based on the federal judge's comments today, Skinner's lawyer, Rob Owen, director of the University of Texas School of Law's Capital Punishment Clinic, said the focus of the controversy will now likely shift to the state courts to apply a newly adopted post-conviction DNA testing law.

DNA evidence presented at Skinner's original trial showed his blood was at the scene, and an ex-girlfriend — who later recanted her testimony — told jurors that he confessed to her. But not all the available DNA evidence was tested. Among the untested items were a rape kit, biological material from the victim's fingernails, sweat from a man’s jacket resembling one that another potential suspect often wore, a bloody towel and knives. Skinner's original trial lawyers worried the results might be incriminating.

For years, Skinner has sought DNA testing on the additional items, but the state has refused, citing restrictions in Texas' 2001 post-conviction DNA testing law. Last year, less than an hour before he was to be executed, the U.S. Supreme Court granted a stay. After a subsequent hearing, the high court sent the case back to the federal district court to decide whether Skinner's civil rights were being violated by the state's application of the 2001 DNA law in restricting the DNA testing Skinner requested.

That was the question before the federal court in Amarillo today. State lawyers argued that Skinner had his chance at trial to have all the DNA testing done, but he forfeited that opportunity and is now trying to game the legal system to stall his demise. "If Skinner is allowed to test this DNA evidence, then every guilty criminal defendant will want to forgo DNA testing at trial and then use the untested DNA evidence as a post-conviction litigation tool to endlessly delay or hinder implementation of the sentence," state lawyers wrote in a brief to the court.

But the primary question the federal court had to answer about whether Texas' DNA testing law violated Skinner's civil rights faced a major change during the legislative session this year.

Lawmakers passed a measure that expanded access to DNA testing and eliminated the limits that prosecutors have cited in their objections to Skinner's requests. State Sen. Rodney Ellis, D-Houston, who helped write the bill, has said that Skinner's case is one the law was designed to affect.

Last month, Skinner's lawyers filed a request in Gray County District Court for DNA testing under the new law. They are now awaiting a decision on that request.

"The State conceded in federal court today that the legislature intended that change in the law to reach Mr. Skinner," Owen said in an emailed statement. "The State should stop wasting taxpayer money fighting the DNA testing in Mr. Skinner's case. At a minimum they should drop their insistence on executing Mr. Skinner on November 9 so that the courts have adequate time to settle this issue."

The Texas Attorney General's office, which is representing the state, today filed its objection to Skinner's request in state court for DNA testing. The state's lawyers argued that the Texas Court of Criminal Appeals has already twice denied Skinner's pleas for additional testing and that even if additional testing were done it would not prove Skinner's innocence. And they take Skinner to task for not claiming in court proceedings that he is "actually innocent." "If Skinner is indeed actually innocent of the murders, then he has a responsibility to say so in these court proceedings," they wrote.

In an affidavit he signed on Aug. 31, Skinner declared that he is "actually, factually and totally, legally and any other definition, innocent of this crime!"

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October 24, 2011 - 11:17pm

Wrangling continues in Skinner DNA case


Death row inmate Hank Skinner’s third try for additional DNA testing should be rejected because he’s failed to provide evidence that the tests would prove his innocence, state prosecutors argued in court documents filed Monday.

Lawyers for both sides appeared in the federal courthouse in Amarillo as part of the latest legal maneuvering in a case with wide-ranging implications.

The state’s attorney, Arthur D’Andrea, said he wanted the lawsuit dismissed to allow the state courts to rule and consider any appeals before Skinner’s Nov. 9 execution date in the killings of his live-in girlfriend and her two sons.

Skinner’s attorneys urged U.S. Magistrate Judge Clinton Averitte not to dismiss the federal civil rights lawsuit until the state court rules on Skinner’s third motion for DNA testing, which remains pending in Gray County.

In 1995, a Tarrant County jury convicted Skinner in the December 1993 murders of Twila Busby and her two sons at their Pampa home. The trial was moved to the Fort Worth area because of pretrial publicity.

The federal case Monday stemmed from a U.S. Supreme Court ruling in March that allowed Skinner to use a federal civil lawsuit to advance his motion for DNA testing. The suit states that 31st District Attorney Lynn Switzer violated Skinner’s civil rights by not turning over crime scene evidence he long has said would exonerate him and possibly implicate Busby’s late uncle as the real killer.

Skinner has identified seven items that were never tested: a blood-splattered windbreaker often worn by Busby’s uncle, hair found next to her body, two knives, a rape kit, her fingernail clippings and a bloody dish towel.

Monday’s hearing centered largely around how two appeals cases might affect Skinner’s latest motion, filed Sept. 6 and still pending in 31st District Judge Steven Emmert’s court.

Courts rejected Skinner’s earlier motions for DNA testing, in 2003 on the grounds he failed to prove the untested evidence would have kept him from being convicted and in 2009 because he failed to request the DNA tests before trial.

Lawmakers this spring stripped the no-fault provision ­— which required defendants prove the failure to test was through no fault of their own — citing Skinner’s case.

That change still doesn’t address the grounds for the rejected motion in 2003, D’Andrea said.

“(They held) Skinner could not show a reasonable probability that further testing would exonerate him,” the state’s brief says. “Skinner’s third application for DNA testing will surely meet the same fate.”

DNA evidence Gray County prosecutors tested in 1994 showed Skinner had the victims’ blood on his clothes.

Skinner never denied being at the scene, but he has said a vodka and codeine cocktail left him too incapacitated to commit the crime.

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    • DNA at center of Texas execution caseBritta, Tue Oct 25 10:31pm
      DNA at center of Texas execution case Published: Oct. 25, 2011 at 10:46 AM AMARILLO, Texas, Oct. 25 (UPI) -- A Texas death row inmate's request for DNA testing should be rejected because he's failed... more
      • Is Texas About to Kill an Innocent Man?Britta, Wed Oct 26 12:24pm
        Among the many gripes about journalism -- and the one that's certainly justified -- is that reporters are horrible at following up the stories they cover. The public learns about interesting events... more
        • Hank Skinner wins stay based on DNA evidenceBritta, Wed Nov 16 9:50am
          Hank Skinner wins stay based on DNA evidence By Gloria Rubac Published Nov 12, 2011 11:24 AM Bulletin: As this paper goes to press, on Nov. 7, the Texas Court of Criminal Appeals stayed the execution ... more
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