The Texas Court of Criminal Appeals granted inmate Hank Skinner a stay of execution Monday, saying it needed time to review whether a new state law allows previously untested items from the crime scene to be analyzed for DNA.
“This is the best possible result,” said David Protess, president of the autonomous Chicago Innocence Project and former head of the Medill Innocence Project, which began investigating the case in 2000.
“The first victory is that Hank Skinner got a stay of execution, so he is not going to die tomorrow, and the second victory is that the highest court in Texas has agreed to review Skinner’s case,” he added.
In 1995, a Texas court convicted Skinner, who was scheduled to be executed Wednesday and still maintains his innocence, of murdering his girlfriend, Twila Busby, and her two sons. Earlier this year, the Supreme Court granted Skinner a similar stay of execution, later arguing that federal civil rights laws entitled him to sue District Attorney Lynn Switzer of Gray County, Texas, for greater access to DNA testing. The lawsuit is on hold until the appellate court reaches its decision.
Under the new law, S.B. 122, which was adopted by the Texas legislature in May with nearly unanimous support, an inmate may request that the convicting court test “biological material” for DNA even if the material had not been entered as evidence in the original trial.
“Because the DNA statute has changed, and because some of those changes were because of this case, we find that it would be prudent for this Court to take time to fully review the changes in the statute as they pertain to this case,” read the court order issued Monday.
The court will now review whether untested evidence from the crime scene, including an unidentified piece of hair found in Busby’s hand, is legally admissible as forensic evidence for the defense.
Although the Gray County District Attorney’s office declined to comment on the situation, a brief to the appellate court filed July 28 addressed its opposition to Skinner’s argument.
“Skinner cannot establish a constitutional right to post-conviction DNA testing when he spurned the opportunity to test that evidence during his trial,” the brief read. “Skinner is bound by the reasonable, strategic decision of his lawyers to forego DNA testing at his trial.”
Protess has been an outspoken advocate for Skinner since students in the Medill Innocence Project discovered physical evidence, such as a rape kit and bloody windbreaker, that may have implicated another suspect, Robert Donnell, who died in a car crash in 1997.
Protess also appeared on “Nancy Grace” in June of 2000 with then-district attorney John Mann to challenge prosecutors’ handling of the physical evidence.
After the show, Mann assured Protess in an email that he would test all of the evidence. However, in a Huffington Post article published Tuesday, Protess wrote Mann had failed to do so.
“To me, that is, for lack of a better word, sketchy,” said Gaby Fleischman (Medill ‘10), a former student with the Innocence Project who investigated the Skinner case.
Andrea Reed, the prosecution’s main witness, recanted her testimony in 1997, and students from the Innocence Project interviewed other witnesses close to the case during their investigations. Neighbors reported that Donnell had acted suspiciously in the days following the murders.
“Donnell ripped the carpeting out of his car after the murders, and had repainted his car within a week,” Fleischman said. “Neighbors also said that he had been stalking her the night of the party, and that she had left because he had been making her uncomfortable.”
Regarding the prosecution’s opposition to post-conviction DNA testing, Protess said discovering the truth should always be the top priority.
“I don’t want to generalize about prosecutors. To the extent that I will generalize about them, it is that most prosecutors are honorable men and women,” Protess said. “But there is a culture within some district attorneys’ offices that is premised on winning at all costs, and the definition of winning is determined by the number of convictions you get.”
The current head of the Medill Innocence Project, Prof. Alec Klein, declined to comment on the case.
