death penalty news—-TEXAS

Dec. 10


Death Row Inmate Sues Prosecutor, Seeks DNA Test

A Texas death row inmate facing execution next year has sued a Panhandle
prosecutor, alleging she is denying him access to DNA evidence that has
never been tested and could prove he is innocent of murdering 3 people in

Henry Watkins Skinner alleges in his original complaint in Skinner v.
Switzer that the refusal by Lynn Switzer, district attorney for the 31st
and 223rd Judicial Districts, to release the biological evidence for
testing violates Skinner's 14th Amendment right to due process and his
Eighth Amendment right to be free from cruel and unusual punishment.
Skinner sued Switzer on Nov. 27 in the U.S. District Court for the
Northern District of Texas in Amarillo.

In the complaint, Skinner asks the court to declare that continued
withholding of the DNA evidence violates his constitutional rights. He
seeks an injunction requiring Switzer to release certain biological
evidence to him — including vaginal swabs and fingernail clippings from
the female victim, any biological material on 2 knives found at the murder
scene, and blood and hairs on a jacket found next to the female victim's
body — so Skinner can test it at his own expense.

University of Texas School of Law clinical professor Rob Owen, Skinner's
lead counsel, says Skinner needs to have the evidence tested to file a
meaningful application for clemency.

"I think if the testing is allowed, it will give rise to a new habeas
claim in the state courts," says Owen, co-director of the UT law school's
capital punishment clinic.

As an example, Owen points out that testing of the vaginal swabs from the
female victim's rape kit might show that another person besides Skinner
had sexual contact with her.

Switzer, DA since February 2005, did not return 2 telephone calls seeking
comment before press time Dec. 3.


As alleged in the complaint, the following is the procedural background in
Skinner's case: A 31st District Court jury convicted Skinner of capital
murder in 1995 in connection with the deaths of his girlfriend Twila Busby
and her 2 sons, Elwin Caler and Randy Busby. In 1997 the Texas Court of
Criminal Appeals upheld the conviction and death sentence in Skinner v.
State. Skinner initiated state habeas corpus proceedings in 1998, but his
efforts to obtain post-conviction relief were ultimately dismissed on
procedural grounds.

In 1999, Skinner filed a petition for writ of habeas corpus with the U.S.
District Court in Amarillo. The federal court denied the petition in
Skinner v. Quarterman in 2007. In 2008, the 5th U.S. Circuit Court of
Appeals granted Skinner a certificate of appealability on 2 issues
relating to his claim that he was denied effective assistance of counsel
in the guilt phase of his trial but, after receiving additional briefing,
the 5th Circuit affirmed the U.S. District Court's denial of the writ on
July 14.

The 31st District Court entered an order on Oct. 20 setting Skinner's
execution date for Feb. 24, 2010.

On Nov. 25, Skinner filed a petition for writ of certiorari with the U.S.
Supreme Court. A ruling on that petition is pending.

Skinner alleges in his complaint that evidence presented at his 1995 trial
showed Twila Busby was strangled and beaten with an ax handle found at the
scene, her sons received multiple stab wounds and Skinner suffered a cut
to his hand around the time of the murders. While police found blood
stains and other biological evidence throughout the house where the
murders occurred, the state sought DNA testing on only 4 items prior to
the trial. Skinner alleges in the complaint that no evidence presented at
trial proved conclusively that he committed the murders and that his
conviction was based primarily on the fact that he was in the house at the
time of the murders, had two victims' blood on his clothes and supposedly
told a neighbor that he might have "kicked" Twila Busby to death.

In his complaint, Skinner alleges the following regarding his efforts to
obtain DNA testing: In 2000, John Mann, then-DA for the 31st and 223rd
Judicial Districts, had a private laboratory in Dallas test certain items
found at the crime scene but declined a request by Skinner's counsel to
participate in the testing on a joint basis. Richard Roach, Mann's
successor, also declined Skinner's request to participate in voluntary
testing of the evidence.

The lab submitted 4 reports to the district attorney on its results
between Aug. 24, 2000, and Feb. 6, 2001 — the 4th after Mann left office.

In 2001, the Texas Legislature amended Article 64 of the Texas Code of
Criminal Procedure to provide inmates a way to obtain post-conviction DNA
testing. Shortly after the statute took effect in October 2001, Skinner
filed a motion with the 31st District Court to request such testing, but
the court denied his motion. In December 2003's Skinner v. State, the CCA
affirmed the district court on the ground that Skinner failed to satisfy
Code of Criminal Procedure Article 64.03(a)(2)(A)'s requirement that a
convict establish by a preponderance of the evidence the reasonable
probability that he would not have been prosecuted or convicted if the DNA
evidence had been tested. Skinner also sought to obtain DNA testing in
connection with his federal habeas corpus writ petition, which the federal
court denied in February 2007. In July 2007, Skinner filed a 2nd motion
for DNA testing with the 31st District Court, which again denied the

On Sept. 23, according to the CCA's opinion that day, the CCA affirmed the
district court on the ground that Skinner failed to meet Code of Criminal
Procedure Article 64.01(b)(1)(B)'s requirement that a convicted person who
requests testing that was available at the time of trial show it was not
his fault the testing was not done. State and federal district courts have
found that "defense counsel had a reasonable trial strategy for not
requesting testing of the untested items," wrote CCA Presiding Judge
Sharon Keller for the majority. The CCA concluded that "in the unusual
case, the interests of justice do not require testing when defense counsel
has already declined to request testing as a matter of reasonable trial

Skinner alleges in his complaint that as a result of the CCA's decisions,
Switzer continues to refuse to make the DNA evidence available to him for
testing, "thereby preventing him from gaining access to exculpatory
evidence that could demonstrate he is not guilty of capital murder."

But First Assistant State Prosecuting Attorney Lisa McMinn, who is not
involved in Skinner v. Switzer, says it is difficult for an inmate to say
he has a right to have DNA evidence tested if he cannot show it would be
helpful to him. If a court ruled that an inmate has such a right without
showing the evidence would help him, "it would be opening the floodgates
to every inmate who requests testing," McMinn says.

Williamson County District Attorney John Bradley, who also is not involved
in Skinner v. Switzer, says the issue is whether a convicted person's
request to test DNA fits within the requirements that the Legislature set
for allowing such testing. Among other things, the statute requires a
convicted person to show he did not already make a decision to bypass

Bradley says an individual cannot decide against testing prior to trial
and later request testing because he believes he might get lucky. "For
obvious reasons, we don't go back and redo things," he says.

(source: Texas Lawyer)