BREAKING: Today's Planned Texecution STAYED

UPDATED: 6:20 pm EDT, 3/24/10: The Innocence Project reports that the US Supreme Court has issued a stay that prevents the execution of Hank Skinner.


Hank Skinner

Texas plans to kill death row prisoner Hank Skinner by lethal injection today. Even though DNA from the crime scene has never been tested, and even though Skinner has insisted for more than sixteen years that he is innocent, Texas plans today to have its inexorable revenge against Skinner for a triple homicide. Stopping the execution now so that DNA testing can be conducted depends on long shots: Texas Governor Rick Perry and last minute appeals to the Supreme Court.

The New York Times reports:

Texas death row inmate Hank Skinner doesn't deny he was in the house where his girlfriend was fatally bludgeoned and her two adult sons stabbed to death in 1993, but he insists that DNA testing could exonerate him.

Skinner, scheduled to die Wednesday in Huntsville for the New Year's Eve triple slaying more than 16 years ago, visited with his French-born wife as he waited for the U.S. Supreme Court or Texas Gov. Rick Perry to decide whether to stop his execution.

He and his attorneys contend his lethal injection should be halted for DNA testing on evidence from the crime scene in the Texas Panhandle town of Pampa. Results of those tests could support his innocence claims, they said.

''It's real scary,'' Skinner, 47, said recently from death row. ''I've had dreams about being injected. I didn't commit this crime and I should be exonerated.''

Prosecutors and the Texas Courts have insisted that Skinner isn't entitled to DNA testing of evidence that was not tested before his 1995 trial. His appointed lawyer inexplicably didn't demand it before trial. The remaining evidence in question will probably reveal whether Skinner or another man committed the murders for which Skinner was convicted.

Testing this evidence is important if Texas wants to be sure that it is not (again) killing an innocent person. The amount of evidence is not large; a DNA testing lab has agreed to conduct the testing for free. If testing does not show that Skinner is innocent, there would be slight reason to disturb his conviction. On the other hand, if the testing exonerates Skinner, he should clearly be spared and released from confinement.

What is the role of this physical evidence in this case? Dave Lindorff explains:

The thing about Skinner’s case is it would be relatively easy to prove whether or not he was really the killer of the three. There are two bloody knives that have never been tested for Skinner’s DNA--or for the DNA of Twila’s uncle, the man who had reportedly made several unwanted sexual advances at her earlier that evening, leading her to leave a party early, and who Skinner claims is the real killer. Nor was semen that was found on Twila Busby, who was raped, or skin found under her fingernails, ever DNA tested to see who they belonged to.

There were, to be sure, plenty of circumstantial reasons at the time of the trial to suspect Skinner. It is undisputed that he had been drunk and passed out on the couch in Busby’s house shortly before the murders, which occurred in the same room he was in. The drunken Skinner also staggered from the home in Pampa, TX, his hands bloodied, following the killings. But Skinner maintains that he had cut his hand, falling off the couch, and that the blood was his own. He says he had woken up to find Busby and her sons already dead.

Incredibly, police investigators at the crime scene never took fingernail clippings from Busby, nor did they take a vaginal swab at the scene, though she had clearly struggled and had apparently been raped.

This physical evidence should be tested. The execution, which has waited for more than sixteen years, can be delayed an additional few months so that testing can be completed. If the physical evidence does not exonerate Skinner, claims that Texas is executing an innocent man should be diminished.

The important questions for Texas today are these: what is the rush? Isn't it more important after all of this time, to know the truth about Hank Skinner?

Please sign this Innocence Project petition to Governor Perry.

Texecutions: "Skewed Justice"

Here's a trick question. Is there anything wrong with a death penalty jury trial in which the prosecutor trying the case is having an affair while the case is going on with the judge who is trying the case? I know. It looks pretty unfair. It looks pretty sleazy. There really should be something the matter with this, right? Shouldn't the judge recuse herself? Shouldn't the case be assigned to a different prosecutor, all for the sake of the appearance of fairness?

But in Texas, ground zero for state killing, there's no answer to these questions. At least not today Why? Because the majority of the Court of Criminal Appeals, Texas's highest court that considers criminal appeals, is wagging its finger at the defendant's lawyers saying that the affair isn't something that the Court will look at because the defense lawyers waited too long to raise the issue. According to the Court, it's OK to execute Charles D. Hood whether there was an affair or not because the defense waited too long to raise the question. You cannot make this stuff up.

The New York Times reports:

The highest criminal court in Texas ruled Wednesday that a man facing the death penalty for murder could not have a new trial despite a love affair between the prosecutor and the judge who tried his case.

In a 6-to-3 decision, the Texas Court of Criminal Appeals said the convicted man, Charles D. Hood, should have raised in earlier appeals the argument that the love affair had tainted his trial.

The affair had been rumored for years in Collin County, just north of Dallas, but was confirmed only a year ago when Mr. Hood’s lawyers compelled the judge, Verla Sue Holland, and the prosecutor, Thomas S. O’Connell Jr., to give depositions under oath. Both officials had since retired.

The case has stirred controversy across the country. Several former judges, prosecutors and experts on legal ethics have said that the affair makes it impossible to know if Mr. Hood received a fair trial and that it should be cause for a new proceeding.

In other words, according to 6 of the judges of the highest criminal appeals court in Texas, the accused should have told an appeals court more than a decade ago, "I can't prove that there was an affair between the judge and the prosecutor during my trial, there's no proof of that yet, but there's a really big rumor that they were having an affair and so this Court should vacate my conviction." That's not a likely sentence in any brief I've ever seen. Prudent counsel just don't write unsubstantiated allegations to appeals courts accusing judges and prosecutors of having affairs.

Wednesday’s decision overturned the findings of a district court judge who had found that Mr. Hood should be allowed a hearing on a new trial. The decision did not discuss whether the affair had prejudiced his first trial; instead, the court rejected Mr. Hood’s claim on the ground that he should have raised it when he first appealed his 1990 conviction.

Mr. Hood’s lawyers responded to that finding by saying they had long tried to substantiate rumors of the affair. They also accused the majority of ignoring confirmation of it in the testimony of Ms. Holland and Mr. O’Connell.

But there's more to the story than just the questionable outcome of this appeal. The stench of unfairness permeates more than the just the trial. It taints the appeal as well. The Times puts it this way:

[The trial judge in the case] went on to serve on the Court of Criminal Appeals with all but one of the current members. “This decision by a court where eight of the nine judges once shared the bench with Judge Holland will only add to the perception that justice is skewed in Texas,” said Andrea Keilen, executive director of the Texas Defender Service, which represents Mr. Hood.

To recap, the judge has an affair with the prosecutor, but that's a secret, leading only to numerous rumors. The judge is then promoted to the top appeals court. And she and the prosecutor then retire. When the appeal about the alleged affair finally reaches the appeals court, the appeals judges, all of whom were on the bench with the former trial judge, decide 6-3 that the defense waited too long to raise the issue even though it couldn't be raised sooner.

According to the Times, the defendant in the case, Charles D. Hood was convicted of the 1989 murder and robbery of a couple with whom he had been living in Plano, a Dallas suburb. Though he maintained his innocence, his bloody fingerprints were found at the scene, and he was arrested the next day in Indiana driving the murdered man’s car. It goes without saying that Hood has been on death row in Texas for 20 years and that the unfavorable decision will in all likelihood not be the last in his case.

Meanwhile, the DA's office has this comment on the case: “We look at it as a significant procedural victory.”

As long as state killing is permitted, and as long as the legislatures and courts try to truncate the appeals process, we're going to see decisions like this one. In fact, this kind of procedural decision is by now typical. It's what one should expect. There was virtually nothing the defense in this case could do to raise the issue before the affair was admitted by the judge and the prosecutor. But that doesn't matter to these appellate judges. They are just cutting off Hood's appeals, they are moving him one step closer to the injection gurney.