Hank Skinner’s last fight
The U.S. Supreme Court could decide the fate of the man whose conviction the Medill Innocence Project has investigated for a decade.
North by Northwestern
Tuesday, October 12, 2010
Hank Skinner sat in a Texas prison and relished his final meal — a chicken thigh, a salad, French fries, catfish, a double bacon cheeseburger and a milkshake. He was set to die by lethal injection in less than an hour for the murder of his girlfriend and her two sons.
Then the telephone rang. It was his attorney. There was news: the U.S. Supreme Court had stayed his execution. The court needed longer to review his attorneys’ appeal.
He felt “ecstatic,” says Medill professor David Protess, who heads the Medill Innocence Project and has been investigating Skinner’s case for 10 years. Protess and Skinner’s attorneys have called for Texas District Attorney Lynn Switzer to order tests on DNA evidence that may exonerate him. For years, the DA’s office has refused.
In May, two months after issuing the stay, the court accepted the case. The decision to take the case carries a sprite of luck for Skinner. In 2007, the court took about 80 cases out of approximately 110,000 filed. The court will hear oral arguments on Wednesday to determine whether Skinner is entitled under federal civil rights law to requests that the evidence be tested.
The case relies not just on Skinner’s attorneys’ arguments, but also on the work of Protess’s student journalists, who have investigated it for more than a decade.
On New Year’s Eve of 1993 in Pampa, Texas, Henry Watkins Skinner’s girlfriend, Twila Busby, was bludgeoned to death. Her two adult sons, Elwin Caler and Randy Busby, died after being stabbed. Skinner was arrested for the murders, convicted in 1994 and sentenced to death in 1995. But for years, Skinner has openly denied his guilt, and the Innocence Project has gathered evidence that call his conviction into question.
CNN investigative producer Emily Probst (Medill ’00), a former Innocence Project student who worked on the case, says all Skinner wants is a test on the evidence. “When the DNA is sitting there when you have the opportunity to test it, you have to question whether you are going after the truth.”
Toxicology reports show Skinner’s blood alcohol level at the time of the murders was 0.21 percent — almost three times the drunk driving limit in Texas — and his blood codeine level was 0.4mg/l — two and a half times the normal therapeutic dose. With levels that high, a man could fall comatose and lack the physical and mental capacity to function correctly. Neighbor Andrea Reed told the Innocence Project that Skinner was “staggering” when she entered the home after the murder.
Donnell, who was killed in a car accident while driving under the influence in 1997, dismantled and cleaned the inside of his truck within a day or two of the murders, according to a testimony by his neighbor Debra Ellis.Evidence presented by the Innocence Project suggests a new suspect in the case could be Robert Donnell, Twila Busby’s late uncle. At the time of the murder, an intoxicated Donnell attended the New Year’s Eve party and reportedly “hit on” Busby. A close friend later told the Innocence Project that Busby had said that Donnell had raped her in the past.
The medical examiner who inspected Busby’s body found evidence of sexual activity, and collected DNA samples. Those samples are among the DNA evidence Skinner’s attorneys asked to be tested, which includes fingernail clippings, two knives and a bloody windbreaker that was found next to Busby’s body.
“Everything we have done in this case over the last 10 years until now has been designed to create pressure on the subsequent DAs in command, one of whom is in prison, to conduct the DNA tests,” Protess says.
In February 2000, Protess received a phone call from Associated Press reporter and Medill alumnus C. Bryson Hull. Hull had covered the Skinner case, but had some doubts about his guilt. He thought it would be an interesting project for Protess’s students following their successful coverage of the exoneration of Illinois death row inmate Anthony Porter.
Porter had also come within an hours of his execution before the Illinois Supreme Court issued a stay. He was later exonerated and freed from prison. He was the group’s third death row exoneration in four years. Illinois Gov. George Ryan “declared a moratorium on execution and credited us for the decision,” Protess says.
It was an early victory for Protess’s project, which he established in 1999 with a grant from the Alphawood Foundation, a Chicago non-profit. Since then, the project has aided in the exoneration of five death row inmates.
“We had a class of students working on other reporting projects so this literally was a project for extra credit,” Protess jokes, “An unusual extra credit project going to Texas to get a claim of innocence from a death row inmate, but the students jumped all over it.”Why not go national? Protess thought after Hull’s call. He started to investigate Skinner’s case, the first death row case the project took outside of Illinois. In early 2000, he asked his students if anyone wanted to travel to Texas to investigate.
Eight of his students took three trips. Two went to the crime scene in Pampa. One interviewed Skinner in person. Before any further investigation could take place, the students needed to get an official innocence statement from Skinner and permission to follow-up, Protess says.
Over the past ten years, Protess says the project has made major advances in the investigation including an interview with Andrea Reed, who originally testified against Skinner. Reed told a private investigator that she had been intimidated by the authorities into concocting a false story. “She felt she could be implicated,” Probst says.
In July 2000, Hull broke the story on the students’ findings. NBC invited Protess to the TodayShow the morning after, gaining the project significant national exposure.
“I said, ‘To say Texas is too cheap to conduct DNA evidence for a man’s death, then the Medill Innocence Project would pay for the test,’” he says. “At that point, Nancy Grace switched sides and asked, ’Well, why won’t you pay for the tests?’”Shortly after the Today Show appearance, a producer of theNancy Grace Show invited Protess to debate then-Gray County district attorney John Mann on the air. During what Protess calls an “unworldly experience,” he challenged the district attorney to test the DNA evidence.
The following day, after speaking with Protess, Mann agreed to do the testing. He tested a fraction of the evidence — a piece of hair found over Busby’s hand, blood found on the front sidewalk and blood on a cassette recorder. None of those samples implicated Skinner.
At that point, Protess says, Mann stopped the testing. “That led to the 10 year campaign that is before the Supreme Court today: to order tests on the untested evidence,” Protess says
Skinner fought his way through the Texas court system. According to the writ of certiorari, Skinner twice requested access to DNA evidence that might exonerate him under Chapter 64 of the Texas Code of Criminal Procedure, which allows prisoners to seek post-conviction DNA testing.
“Skinner is on his game,” says former Innocence Project student Gaby Fleischman (Medill ‘10), who spoke with him her senior year. “He gave us advice on where to look next, what to do next, who we should talk to. He knows his stuff.”
After Skinner’s first motion, in 2000, the DA allowed limited testing — the hair and blood samples that did not belong to Skinner. The second motion was denied, raising the questions that became central to his Supreme Court case — whether Texas’s statute should be read to foreclose DNA testing for prisoners who could have asked for testing prior to trial but did not.
“Our case raises the question, if a prisoner needs to make such a claim in federal court (i.e., that the State authorities have applied their own law to him in a way that is unconstitutionally arbitrary or unfair), what type of lawsuit should he file?” Owen writes.Skinner’s attorneys — University of Texas Law Professor Robert Owen and his co-counsels, Douglas Robinson and Maria Cruz Melendez — said in an email interview that at issue is not whether the attorneys are “withholding” evidence. Instead, they’re asking the court whether they should resolve the conflict in lower federal courts by filing a lawsuit under the federal civil rights statute or under the writ of habeas corpus.
Lurking in the shadow is the District Attorney v. Osborne case, in which the Supreme Court ruled there is no free-standing constitutional right to request DNA testing post-conviction.
In that case, Owen writes, the court acknowledged that if a state applied its own DNA testing law to a particular defendant, there might be an avenue for that defendant to seek relief in federal court. But such instances are rare.
In Tennard v. Dretke, death row inmate Robert Tennard released evidence showing his IQ was 67. The court did not take the evidence into account when making their decision against Tennard. Therefore, the attorneys argued it violated the Eighth Amendment, affirming his mental retardation was constitutionally relevant to the case.Owen is no stranger to arguing before the Supreme Court. He’s argued — and won — two death penalty cases in the Supreme Court: Tennard v. Dretke in 2004 and Abdul-Kabir & Brewer v. Quarterman in 2007. Neither case is directly related to Owen’s argument, but each dealt with notions very similar to those in the Skinner case.
Similarly, in Abdul-Kabir & Brewer v. Quarterman, death row inmate Jalil Abdul-Kabir presented mitigating evidence of his destructive family past and neurological defects. He and his attorneys argued the jury did not take into account its relevance to the case and therefore, violated the Eighth Amendment.
If the court rules in Skinner’s favor, Owen writes, the case will return to the U.S. District Court in Amarillo, Texas, where the lawsuit against Switzer for the DNA evidence will proceed. If the Supreme Court rules against Skinner, he could be executed within 30 days.
In June, Innocence Project alumnae reported in Politics Daily that a number of the jurors who had convicted Skinner are now reconsidering.
“Most of them [jurors] were like, ‘If we had known all of these holes in the case at the time of the trial, there would have been reasonable doubt. We really don’t know if we would’ve sentenced this man to death,’” says Fleischman, who co-reported the story.
According to Fleischman and Emily Glazer (Medill ’10), a co-reporter who now works for theWall Street Journal, some jurors were taken aback by the uncovered evidence and lack of DNA testing when reintroduced to the case years later. Some had followed the case; others forgot completely. But changing its mind after the trial is an unusual reaction, they write in the article.
Despite dedicating 10 years to searching for new evidence in the Skinner case, Protess says he has never taken a stance on whether Skinner is innocent or not. He says the case requires the project to be “agnostic.”
“Our goal is not to exonerate somebody or to claim somebody is innocent when all the evidence isn’t there,” he says, “Our goal is to find the truth.”