HANK SKINNER: RACE AGAINST TIME; DAVID PROTESS ASKS IF TEXAS IS ABOUT TO EXECUTE A FIFTH INNOCENT MAN? - WITHOUT FULL DNA TESTS;

"NOW THE CLOCK IS TICKING ON ANOTHER TEXAS DEATH ROW INMATE WHO HAS STEADFASTLY MAINTAINED HIS INNOCENCE – WITH CREDIBLE EVIDENCE TO SUPPORT HIS CLAIM. THE CONDEMNED MAN IS HENRY WATKINS “HANK” SKINNER, AND MUCH OF THAT EVIDENCE WAS UNEARTHED BY THE MEDILL INNOCENCE PROJECT AND REPORTED IN THE JANUARY 28 AND 29 EDITIONS OF THE TEXAS TRIBUNE, "CASE OPEN" AND "CASE OPEN: THE INVESTIGATION". YET, SKINNER FACES DEATH BY LETHAL INJECTION ON FEBRUARY 24, LESS THAN A MONTH FROM NOW.

TEXAS CONTINUES TO LEAD THE NATION IN EXECUTIONS. BUT WILL THE STATE EARN THE DUBIOUS DISTINCTION OF EXECUTING FIVE INNOCENTS IN TWO DECADES? HANK SKINNER’S FATE LIES IN THE HANDS OF THE TEXAS BOARD OF PARDONS AND PAROLES AND GOV. PERRY."

DAVID PROTESS: MEDILL INNOCENCE PROJECT;

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BACKGROUND: The editor of the Texas Tribune says in a note that "Hank Skinner is set to be executed for a 1993 murder he's always maintained he didn't commit. He wants the state to test whether his DNA matches evidence found at the crime scene, but prosecutors say the time to contest his conviction has come and gone. Now he has less than a month to change their minds. We told the story of the murders and his conviction and sentencing in the first part of this story." Reporter Brandi Grissom, author of the Tribune series on Hank Skinner, writes: "I interviewed Henry "Hank" Watkins Skinner, 47, at the Polunsky Unit of the Texas Department of Criminal Justice — death row — on January 20, 2010. Skinner was convicted in 1995 of murdering his girlfriends and her two sons; the state has scheduled his execution for February 24. Skinner has always maintained that he's innocent and for 15 years has asked the state to release DNA evidence that he says will prove he was not the killer."

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PUBLISHER'S NOTE: ACCORDING TO ITS WEB SITE, "The Medill Innocence Project engages undergraduate journalism students at Northwestern University in investigative reporting of possible miscarriages of justice, with priority given to murder cases that resulted in sentences of death or life without parole. We often collaborate with journalists, private investigators and volunteer lawyers. Our goal is to expose and remedy wrongdoing by the criminal justice system. We were founded in 1999 by Medill professor and free-lance investigative reporter David Protess, who continues to head the Project. Other staff members include private detective Sergio Serritella and attorney Rebekah Wanger.

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"Texas Gov. Rick Perry is under fire for allegedly obstructing an investigation into the wrongful execution of Cameron Todd Willingham, who was put to death in 2004 -- despite forensic tests proving he did not murder his three young children," David Protess notes in a commentary on the Medill Innocence Project site which ran on January 29, 2010, under the heading "Will Texas Soon Execute Another Innocent Man? Our Reporting Challenges Verdict As Clock Ticks."

"Four years earlier, Gary Graham was carried to Texas’ death chamber defiantly proclaiming his innocence in the face of new evidence that even the murder victim’s widow called “reasonable doubt," Protess continues.”

"Investigative stories have revealed that Ruben Cantu in 1989 and Carlos DeLuna in 1993 likely suffered the same unjust fate at the hands of Texas executioners.

Now the clock is ticking on another Texas death row inmate who has steadfastly maintained his innocence – with credible evidence to support his claim. The condemned man is Henry Watkins “Hank” Skinner, and much of that evidence was unearthed by the Medill Innocence Project and reported in the January 28 and 29 editions of the Texas Tribune, "Case Open" and "Case Open: The Investigation". Yet, Skinner faces death by lethal injection on February 24, less than a month from now.

Texas continues to lead the nation in executions. But will the state earn the dubious distinction of executing five innocents in two decades? Hank Skinner’s fate lies in the hands of the Texas Board of Pardons and Paroles and Gov. Perry.

Here is a synopsis of the case, spotlighting the evidence developed by Medill student-journalists who traveled to Texas’ death row and to the crime scene in search of the truth. This account will be followed on February 4 by my testimony to the Board of Pardons and Paroles. I will continue to report on the Skinner case on this site until it reaches finality.

Hank Skinner, age 47, was convicted of bludgeoning to death his live-in girlfriend, Twila Busby, and fatally stabbing her two adult sons in their Pampa, Texas home on New Year's Eve of 1993. Skinner was convicted of the crimes in 1994 and sentenced to death in 1995. He is scheduled to be executed on February 24 – twenty-six days from now.

The state's case against Skinner was entirely circumstantial. He has consistently professed his innocence, there was no physical evidence linking him to the murder weapons and no eyewitness or apparent motive for the crime. Skinner indisputably was in the home at the time of the murders, but claims he had passed out from mixing large quantities of alcohol and drugs. When he awoke, he stumbled to a neighbor’s residence to report the murders, according to Skinner.

But the neighbor, Andrea Reed, testified that Skinner made incriminating statements about the crime and ordered her not to call the police. That was enough for the jury to find him guilty, and, although Skinner had no history of violence that would remotely explain the horrific murders (his worst offense was a conviction for assault), he was sentenced to death.

Our investigation

The Medill Innocence Project first became involved in the case in the fall of 1999 when a reporter at the Associated Press in Houston raised questions about Skinner’s guilt. Eight investigative reporting students made two trips to the Panhandle town in 1999-2000 to interview sources and plow through documents. They returned with grave reservations about whether justice had been done.

For one thing, Andrea Reed, the state’s star witness, recanted her trial testimony in an audio-taped interview. Reed told the student-journalists that she had been intimidated by the authorities into concocting a false story against Skinner. “I did not then and do not now feel like he was physically capable of hurting anybody,” Reed said.

For another, toxicology tests on Skinner's blood and statements by experts revealed he would have been nearly comatose on the night of the crimes, certainly lacking the strength, balance and agility to commit the triple homicide. This finding is consistent with Reed’s observation of Skinner when he entered her home after the crime: “He was falling into the walls and stuff. He was staggering, falling into stuff,” she said in the taped interview.

Other residents of Pampa told the student-journalists in videotaped interviews that the more likely perpetrator was Robert Donnell, Twila's uncle. Donnell had been “hitting on” his niece at a New Year’s Eve party shortly before the slayings. Rebuffing his advances, she left the party frightened, her uncle following behind, according to the witnesses. (A close friend of Twila’s said she confided to being raped by her uncle in the past.)

The day after the crime, another witness claimed to have seen Donnell scrubbing the interior of his pick-up truck, removing the rubber floorboards and replacing the carpeting. Perhaps most telling, a windbreaker just like the one the uncle often wore was found at the scene – directly next to his niece’s body. The jacket was covered with human hairs and sweat.

Yet evidence from the windbreaker has never been scientifically tested. Moreover, prosecutors have steadfastly opposed DNA tests on two blood-stained knives, skin cells found underneath Twila’s fingernails and hairs removed from her hand – even though forensic tests on one of the hairs proved it did not come from Skinner. (The physical evidence remains sealed, but the courts have acceded to prosecutors’ demands not to conduct the tests.) In a death row interview with the student-journalists, Skinner said he was innocent and welcomed new tests on the old evidence.

"They have no right to kill me because I'm innocent, innocent, innocent."
Hank Skinner to the Texas Tribune, January 28, 2010.

Another troubling aspect of the case is the background of Skinner's trial lawyer, Harold Lee Comer. Formerly the District Attorney of Gray County, Comer had prosecuted Skinner for two offenses, theft and assault. After resigning from office and pleading guilty in a drug scandal, Comer was appointed at taxpayer's expense to represent Skinner at his capital murder trial -- without the required hearing to determine whether he had a conflict-of-interest.

The trial judge, a personal friend of Comer's, paid him roughly the same amount to represent Skinner as the former DA owed to the IRS. Comer failed to request DNA testing, or present evidence about the alternative suspect. And, at the sentencing hearing, he failed to object to using Skinner's prior convictions -- which he had prosecuted -- to justify the death penalty.

When the U.S. Supreme Court rejected the claim that Skinner had been ineffectively represented by Comer, a Texas court set his execution date. In light of the cases of Cameron Todd Willingham, Gary Graham, Ruben Cantu and Carlos DeLuna, the specter of wrongful executions now hangs over Texas' system of capital punishment.

Will Texas next put to death a man who has steadfastly professed his innocence and whose lawyer was his legal adversary -- without even conducting DNA tests to be sure the right man will be punished for the crime?

Not much time will tell."

The commentary can be found at:

http://www.medillinnocenceproject.org/skinner

Harold Levy...hlevy15@gmail.com;

UPDATE: SECRET JURY VETTING BY CROWN AND POLICE; PROSECUTORS ACCUSED OF USING INFORMATION ON POTENTIAL JURORS TO INFLUENCE OUTCOME OF CASE:

"THE PROSECUTION WAS CONTROLLING THE INVESTIGATION OF POTENTIAL JURORS, USING A POWERFUL INFORMATION MACHINE IN THE HANDS OF THE POLICE. THE PLAYING FIELD WAS NOT LEVEL," SAID LAFONTAINE. THERE ARE AT LEAST A DOZEN OTHER OUTSTANDING APPEALS IN ONTARIO WHERE JURY VETTING TOOK PLACE, INCLUDING THE CASE OF A YOUNG MAN CONVICTED OF KILLING A POLICE OFFICER, ALL AWAITING THE OUTCOME OF THE YUMNU CASE.

REPORTER SHANNON KARI: CANWEST NEWS SERVICE;

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BACKGROUND: In a previous post I asked: "Why didn't Ontario prosecutors examine Dr. Charles Smith's qualifications a bit more closely over the years, pay more attention to court decisions suggesting he was biased towards the Crown and that that his opinions were seriously flawed - or at least share the existence of these decisions with the defence?"

My answer was that some prosecutors cared more about winning the case than the possibility that an innocent person might be convicted;

I buttressed my response with the story recently broken by the National Post that prosecutors in several parts of Ontario have been asking police to do secret background checks on jurors.

This controversy has lead to numerous requests for mistrials and could result in a bids to open numerous cases where accused persons have been convicted in the shadow of the illegal practice which taints a criminal jury trial from the outset.

The Charles Smith Blog is very much concerned with the question as to how far prosecutors will go to win the case and is therefore monitoring developments on a regular basis;

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"A panel of three Ontario Court of Appeal judges was urged on Monday to order a new trial in a double murder case because of secret vetting of potential jurors by the Crown and police," reporter Shannon Kari's story, published earlier today over the Canwest News Service, begins, under the heading "Retrial urged for jury vetting: Background checks decried."

""This is a case about the Crown cheating. This is a case about the Crown breaking the law," said defence lawyer Greg Lafontaine during the appeal court hearing Monday," the story continues.

"Lafontaine was arguing on behalf of Ibrahim Yumnu, who was convicted along with two other people of first-degree murder in 2005 by a jury in Barrie, Ont., in the slaying of two people suspected of taking money from a marijuana grow operation.

Local police services in the Barrie area searched confidential databases to uncover information about hundreds of potential jurors, which was passed on to the Crown in the Yumnu prosecution and dozens of other cases.

The information was kept from the defence.

The broad background checks of potential jurors, which was contrary to the provisions of the Juries Act, was first reported by the National Post last spring. An investigation by the Ontario Privacy Commission revealed that one-in-three Crown offices engaged in improper jury vetting since 2006.

The issue of jury vetting first came to light in Windsor in the case of Richard Zoldi and Shane Huard, who were charged with first-degree murder in the August 2006 shooting death of drug dealer Troy Hutchinson.

Lafontaine stressed Monday that the state is not permitted under Canadian law to use police databases to try to gain an advantage during jury selection.

"The prosecution was controlling the investigation of potential jurors, using a powerful information machine in the hands of the police. The playing field was not level," said Lafontaine.

There are at least a dozen other outstanding appeals in Ontario where jury vetting took place, including the case of a young man convicted of killing a police officer, all awaiting the outcome of the Yumnu case.

But "the Crown was executing its responsibilities to ensure juror qualifications," writes Michal Fairburn, a senior lawyer in the Ministry of the Attorney-General.

"Jurors with criminal records are not simply an abstract concern," she adds."

The story can be found at:

http://www2.canada.com/windsorstar/news/story.html?id=74aba749-064b-4c8c-bf90-12c073e2a77a

Harold Levy...hlevy15@gmail.com;

HANK SKINNER CASE: ANOTHER TEXAN WHO MAY BE INNOCENT ON DEATH ROW; DNA TESTING DENIED; EXECUTION SET FOR FEBRUARY 24; TEXAS TRIBUNAL; PART 2

"MANN, WHO HAS SINCE DIED, SENT BLOOD FROM A NOTEBOOK AT THE CRIME SCENE, HAIR FROM BUSBY’S HANDS, BLOODSTAINED GAUZE AND OTHER ITEMS TO PRIVATE TESTING COMPANY GENE SCREEN INC., IN DALLAS. THE KNIVES, BUSBY’S FINGERNAIL CLIPPINGS AND RAPE KIT, THE WINDBREAKER AND BLOODY DISHTOWEL WERE NOT TESTED. WHEN SKINNER’S APPELLATE LAWYERS REQUESTED ADDITIONAL TESTING, ACCORDING TO A 2000 ASSOCIATED PRESS STORY, MANN SAID, “BE CAREFUL WHAT YOU ASK FOR, BECAUSE YOU MIGHT GET IT.” BUT THEY NEVER DID GET IT, AND THE REPORT FROM GENE SCREEN’S TESTS PROVIDED LITTLE NEW INFORMATION ABOUT SKINNER OR ANY OTHER POTENTIAL SUSPECTS."

REPORTER RANDI GRISSOM: THE TEXAS TRIBUNE;

(WIKIPEDIA NOTES THAT THE TEXAS TRIBUNE IS A NON-PROFIT NEWS ORGANIZATION IN AUSTIN, TEXAS, DEVOTED TO STATE GOVERNMENT AND PUBLIC POLICY. IT AIMS TO PROMOTE CIVIC ENGAGEMENT THROUGH ORIGINAL, EXPLANATORY JOURNALISM AND PUBLIC EVENTS.)

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BACKGROUND: The editor of the Texas Tribune says in a note that "Hank Skinner is set to be executed for a 1993 murder he's always maintained he didn't commit. He wants the state to test whether his DNA matches evidence found at the crime scene, but prosecutors say the time to contest his conviction has come and gone. Now he has less than a month to change their minds. We told the story of the murders and his conviction and sentencing in the first part of this story." Reporter Brandi Grissom, author of the Tribune series on Hank Skinner, writes: "I interviewed Henry "Hank" Watkins Skinner, 47, at the Polunsky Unit of the Texas Department of Criminal Justice — death row — on January 20, 2010. Skinner was convicted in 1995 of murdering his girlfriends and her two sons; the state has scheduled his execution for February 24. Skinner has always maintained that he's innocent and for 15 years has asked the state to release DNA evidence that he says will prove he was not the killer."

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"It makes sense to Greg Jonsson that police in Pampa set their sights on Hank Skinner when they found Skinner's girlfriend and her two sons violently murdered on New Year’s Eve in 1993," the story begins.

"Skinner was a hard-drinking, hard-partying guy who had seen the inside of a jail cell more than a few times," the story continues.

"He was in the house at the time of the killings, he had blood all over his clothes, and police found him hiding out in an ex-girlfriend’s house. “If I was a police officer, I would have looked at Hank Skinner, too,” says Jonsson, one of eight Northwestern University students who traveled from Illinois to Texas to investigate the case in 2000.

A decade later, Jonsson worries the authorities decided too quickly that Skinner was their man. “I didn’t come away knowing he’s innocent, but I didn’t come away knowing he’s guilty,” Jonsson says. “You’d hope that was the case with someone about to be put to death.”

Skinner is scheduled to be executed on February 24 for the murders of Twila Busby and her two mentally disabled adult sons. Skinner and his lawyers insist he was too intoxicated from liquor and pills that New Year’s Eve to have killed three people, and they contend his defense lawyer — a former district attorney who had previously prosecuted Skinner for theft and assault — did a shoddy job representing him at trial. They’ve been pleading with the state for 15 years to release DNA evidence they believe could exonerate Skinner and keep Texas from killing an innocent man.

Prosecutors in Gray County and lawyers for the Texas Attorney General’s Office argue that Skinner had his chance in 1995 to have the DNA tested at his original trial. “There were 12 people that sat in the jury and they listened to the evidence and they found him guilty beyond a reasonable doubt,” said Gray County District Attorney Lynn Switzer, the third Pampa DA to deal with the case.

Protess’s Probe

Northwestern University professor David Protess got acquainted with Hank Skinner in 2000 as then-Texas Gov. George W. Bush was running for president. Protess teaches a journalism class in which students investigate inmates’ innocence claims. The work of his students led to the exoneration of 11 Illinois inmates, including five who were on death row, between 1996 and 2000. The Republian governor of Illinois during that period, George Ryan, cited their work when, in January 2000, he declared a moratorium on the death penalty in Illinois.

Amid rising national questions about the death penalty that were largely raised by the students’ investigations, Bush was defending Texas’ death chamber, the busiest in the nation. He insisted that Texas had not and would not kill an innocent person under his watch.

To test that proposition, Protess sent a crew of eight journalism students to Texas to investigate Skinner’s case. They spent time in Pampa, interviewed residents about the heinous murders and visited Skinner on death row. Today, they say they came away with more questions than answers about what happened to Busby and her sons. And they have grave lingering concerns about the state's plans to execute Skinner.

Jonsson, now a reporter for the St. Louis Post-Dispatch, was a senior at Northwestern’s Medill School of Journalism when he visited Pampa. “It’s just small, like a rough-around-the-edges town,” Jonsson says, nursing a cup of coffee at a St. Louis coffee house and recalling his first and only time in Texas. He and his classmates interviewed Andrea Reed, the state’s star witness, who at trial testified that Skinner admitted to killing Busby. They talked to the widow of Robert Donnell, Busby's uncle, who had an incestuous relationship with her and stalked her at a party the night of the murders. They visited friends and neighbors of Skinner and the victims. They dug through case files, reviewed evidence and tried to reconstruct the case to see whether their investigation led to the same conclusion as the jury. “We didn’t come in thinking he’s innocent,” Jonsson says. “We did come in thinking it’s possible mistakes were made.”

The students came away with three big questions. First, why didn't law enforcement more fully investigate Donnell as a suspect? Second, why didn't Skinner’s lawyers test what they saw as crucial DNA evidence from the crime scene: Busby's fingernail clippings, a rape kit, two knives, a bloodstained dish towel and a man’s windbreaker with hair and sweat on it. “There was a pile of it here that hadn’t been tested,” Jonsson says. “That was sort of disconcerting.” Third, what about the potential conflict of interest with the lawyer appointed to represent Skinner at trial? Harold Comer was a former Gray County District Attorney who had previously prosecuted Skinner for car theft and assault.

Donnell was already dead by the time the Northwestern students got to Pampa: He died of massive head injuries in a wreck on Interstate 40 in Oklahoma in January 1997. But they interviewed his widow, who said he became violent when he drank. Others in the community claimed Donnell had raped Busby. They said he often wore a windbreaker similar to the one found at the crime scene. Neighbors also reported seeing Donnell cleaning his truck with a hose and stripping the carpet from it within a week of the murders.

During the trial, though, jurors heard little about Donnell’s violent past. They heard nothing about his sudden desire to have a tidy vehicle. And neither prosecutors nor Skinner’s attorney tested DNA on the fingernail clippings or the windbreaker or the rape kit or the knives found at the scene, which could have revealed whether Donnell, or another person, could be implicated in the crime.

The students also interviewed Reed, Skinner’s ex-girlfriend. Skinner spent about three hours at her house before police arrested him the night of the murders. When they interviewed her, Jonsson says, she explained that she felt intimidated by police and worried that she could somehow be implicated in the crime if she didn’t testify against Skinner. In 1997, she recanted her incriminating testimony, writing in an affidavit that she had lied at trial, and that Skinner’s admission that he kicked Busby to death was one of several fantastic stories he made up in his drunken stupor the night of the murders. “She’d basically been given guidelines for what she was going to say” at trial, Jonsson says. “To us, she seemed sincere.”

Comer, Skinner’s court-appointed attorney, failed to find and fight for evidence that could have vindicated Skinner at the trial, says professor Protess. “My students found on one trip to Pampa … more information than the former prosecutor did,” he says. And no wonder, he says, when the very lawyer who had worked to convict Skinner twice before was now expected to defend his innocence. Comer was the DA in Pampa from 1988 until 1992, when he resigned. That same year, the State Bar of Texas suspended Comer for mishandling public money from a seized drug fund. “He basically didn’t put up a defense,” Protess says.

Emily Probst, another of Protess’s students, interviewed Skinner on death row and spent time investigating the case in Pampa. She came away not convinced that Skinner was innocent but persuaded that too many questions remained unanswered to condemn the man to death. “I still feel like the full truth in this story is untold,” says Probst, who is now a producer for CNN’s investigative and documentary unit.

The students’ investigation and Associated Press reporting on the case drew national attention in 2000 to Pampa and Gray County District Attorney John Mann, who succeeded Comer and prosecuted Skinner. Facing national scrutiny, Mann agreed to test more of the DNA collected from the crime scene.

Mann, who has since died, sent blood from a notebook at the crime scene, hair from Busby’s hands, bloodstained gauze and other items to private testing company Gene Screen Inc., in Dallas. The knives, Busby’s fingernail clippings and rape kit, the windbreaker and bloody dishtowel were not tested. When Skinner’s appellate lawyers requested additional testing, according to a 2000 Associated Press story, Mann said, “Be careful what you ask for, because you might get it.” But they never did get it, and the report from Gene Screen’s tests provided little new information about Skinner or any other potential suspects.

Court fight

Since 1998, Skinner has filed appeal after appeal seeking to prove that his defense was inadequate and begging the courts to force testing of the additional DNA. Each time, the courts have ruled against him.

In a July 2009 opinion, justices on the 5th U.S. Circuit Court of Appeals in New Orleans said that Comer provided constitutionally adequate representation for Skinner. The court said Comer did present Donnell as a potential suspect to jurors, and although he did not dig up all the evidence Protess’s students found, the attorney performed within legal standards. Skinner has appealed that decision to the U.S. Supreme Court.

Contacted at his home recently, Comer, who is still a practicing lawyer in Pampa, says he was proud of the case he built for Skinner and disappointed that jurors sentenced him to death. “My opinion as a lawyer was the evidence was insufficient to convict him. I still feel that way,” Comer says. His defense of Skinner in 1995 was based on convincing jurors that the state did not have enough evidence to prove he was the killer. What little DNA testing the prosecutor had done was incriminating, showing that Skinner was at the scene the night of the murders. Comer didn’t want to take the risk of poking holes in his own case by testing more evidence that might come back with Skinner’s DNA. “I’m not new at this. I’ve tried four or five capital cases. I’ve been at it 50 years, so I have an instinct, or a feeling, for what’s good for my client,” Comer says. “I don’t second-guess that decision at all.” He says he respects the decision of Skinner’s new attorneys, Rob Owen co-director of the University of Texas at Austin’s Capital Punishment Clinic and Doug Robinson of Washington, D.C., to go after the DNA. But he doesn’t agree with it. “I guess the proof’s in the pudding. If the courts allow the testing, and it does come out exculpatory, we got egg on our face,” Comer says, “but I still would have made the same decision.

So far, though, the courts have not allowed additional DNA testing. When legislators in 2001 passed a law allowing for post-conviction DNA testing in cases where such evidence existed but had never been examined, Skinner hoped the measure would finally force the state to turn everything over. The law allows for testing in cases where technology wasn’t available at the time of the trial or where untested evidence has the potential to exonerate. State and federal courts so far have ruled that Skinner’s case doesn’t meet those guidelines.

Skinner’s first motion for post-conviction DNA testing was denied, and on appeal the Texas Court of Criminal Appeals ruled that new testing was unlikely to show anything different from previous DNA tests that put Skinner at the scene of the crime. Skinner filed a second request for DNA testing in 2007, citing new legal developments and evidence that Gene Screen’s DNA tests in 2000 were flawed. Again, the Court of Criminal Appeals denied the motion. The court said Skinner was at fault for not having requested testing of the DNA at his original trial in 1995. Skinner then sued current Gray County D.A. Switzer, hoping a federal court would force her to turn over the DNA. “The fact of the matter is he had very good trial attorneys, and they made decisions and strategies at the time that the courts have upheld and said, ‘Yes, that is good trial strategy,’” Switzer says. “There are steps in place that he could have employed and some of which he did employ, and they’ve been handled.” A federal judge dismissed the case against Switzer this month, and Skinner attorney Rob Owen says he plans to appeal.

When legislators adopted the 2001 post-conviction DNA law, they worried the measure would start a flood of requests for testing. State Sen. Robert Duncan, R-Lubbock, who wrote the bill, says guidelines were implemented to ensure fairness and prevent abuse in the system. John Bradley, chairman of the Texas Forensic Science Commission and the Williamson County District Attorney, says Skinner’s case is a perfect example of why those criteria are necessary. “There’s 155,000 people in prison,” he says. “If you change the rules so you can having testing any time, you’re going to get 155,000 applications tomorrow, because what have they got to lose?”

Owen says he is hopeful the U.S. Supreme Court will intervene in Skinner’s case. “It’s about a one-in-100 shot,” he says. The decision not to test the DNA back in 1995 was one ex-prosecutor Comer made, Owen says, and Skinner shouldn’t be executed for a wrong that could be righted now. “There was good reason to doubt Hank’s guilt even then, and the concerns have only grown,” he says. Besides, he wonders, what has Texas got to lose? If the DNA tests don’t exonerate Skinner, the execution can go forward as planned. If the evidence proves he didn’t do it, then Texas avoids killing an innocent man. “The idea that we’re going to not find out, that’s … irresponsible,” he says.

As the February 24 execution date draws near, Skinner says he’s beginning to tire of this 15-year fight to prove his innocence. He’s tried to accept the possibility that needles filled with a lethal chemical concoction will take him to his end. But, he says he can’t. “Every time I try to think about them trying to kill me, I just think next, well, I didn’t do it.”

The story can be found at:

http://www.texastribune.org/stories/2010/jan/29/case-open/

Harold Levy...hlevy15@gmail.com;

UPDATE: MITCHELL DELASHMITT CASE; TRIAL POSTPONED ONCE AGAIN; BELEAGUERED MEDICAL EXAMINER DECLINED TO TESTIFY; CHATANOOGA FREE PRESS REPORTS;

"STATE PROSECUTORS ASKED FOR THE CONTINUANCE THIS MORNING, SAYING THEIR KEY WITNESS — THE MEDICAL EXAMINER WHO DID THE AUTOPSY ON THE LITTLE GIRL — WASN’T GOING TO TESTIFY BECAUSE HE IS FACING CHARGES OF HIS OWN IN HAMILTON COUNTY. DR. RONALD TOOLSIE WAS INDICTED IN OCTOBER 2008 ON ONE COUNT OF UNLAWFUL DISTRIBUTION OF A CONTROLLED SUBSTANCE, ONE COUNT OF FAILURE TO KEEP REQUIRED RECORDS OF CONTROLLED SUBSTANCES AND ONE COUNT OF OBTAINING A CONTROLLED SUBSTANCE BY FRAUD, ACCORDING TO THE TBI. DR. TOOLSIE’S ATTORNEY ADVISED HIM NOT TO TESTIFY IN THE DELASHMITT CASE, STATE PROSECUTORS SAID TODAY.".............

"DR. RONALD TOOLSIE WAS INDICTED IN OCTOBER 2008 ON ONE COUNT OF UNLAWFUL DISTRIBUTION OF A CONTROLLED SUBSTANCE, ONE COUNT OF FAILURE TO KEEP REQUIRED RECORDS OF CONTROLLED SUBSTANCES AND ONE COUNT OF OBTAINING A CONTROLLED SUBSTANCE BY FRAUD, ACCORDING TO THE TBI."

CHATANOOGA FREE PRESS;

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BACKGROUND: This Blog is following several cases involving former Tennessee Medical Examiner Ronald Toolsie - including Mitchell Delashmitt and Gussie Vann. Forensic experts also accuse Toolsie of botching the autopsy of 14-month-old Angel Delashmitt, who was found dead in a McMinn County pond in 2003. Angel's father is charged with raping and killing the infant and is awaiting trial. Death row inmate Vann was granted a new trial after a judge ruled his defense attorneys did not provide an adequate challenge to claims that he raped and murdered his 8-year-old daughter in 1992. Vann was granted a new hearing after forensic experts testified there were flaws in the state's handling of evidence following Vann’s daughter’s death, which was originally reported as an accidental hanging. The experts said there were no signs of sexual abuse as originally reported in the autopsy prepared by former medical examiner Toolsie.

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"ATHENS, Tenn. — The trial of a man accused of raping and killing his 15-month-old daughter has been postponed until May," the Chatanooga Free Press story published earlier today under the heading "Trial postponed for man accused of raping, killing daughter" begins.

"This is the third time the trial for Mitchell Delashmitt has been postponed. His new trial date is May 10," the story continues.

"State prosecutors asked for the continuance this morning, saying their key witness — the medical examiner who did the autopsy on the little girl — wasn’t going to testify because he is facing charges of his own in Hamilton County.

Dr. Ronald Toolsie was indicted in October 2008 on one count of unlawful distribution of a controlled substance, one count of failure to keep required records of controlled substances and one count of obtaining a controlled substance by fraud, according to the TBI.

Dr. Toolsie’s attorney advised him not to testify in the Delashmitt case, state prosecutors said today.

Mitchell Delashmitt’s trial on charges of raping and killing his 15-month-old daughter, Angel, in 2003.

Mr. Delashmitt was jailed for more than four years until an appeals court threw out his confession because he was not allowed an attorney during questioning.

His trial originally was set for September, then moved to December, then to February.

The state medical examiner’s office also has questioned the accuracy of the autopsy on Angel Delashmitt.

In February 2009, the state Board of Medical Examiners suspended the license of Dr. Toolsie, citing improper prescribing and poor recordkeeping."

http://www.timesfreepress.com/news/2010/feb/01/trial-postponed-man-accused-raping-killing-daughte/?breakingnews

Harold Levy...hlevy15@gmail.com

ROMEO PHILLION CASE CSI EFFECT CITED IN EFFORTS TO OBTAIN FULL EXONERATION FOR 1967 MURDER CONVICTION; SUPREME COURT OF CANADA HEARING BEGINS MONDAY;

"PHILLION SPENT NEARLY 32 YEARS IN PRISON FOR THE 1967 MURDER OF AN OTTAWA FIREFIGHTER. HE MAINTAINED HIS INNOCENCE BUT, FOR NEARLY THE WHOLE TIME, HAD NO IDEA A CRUCIAL PIECE OF EVIDENCE THAT MIGHT LEAD TO HIS EXONERATION LAY BURIED IN POLICE FILES.

THE EVIDENCE IN QUESTION WAS A REPORT WRITTEN ON APRIL 12, 1968 BY AN INVESTIGATING OFFICER IN THE CASE. DET. JOHN MCCOMBIE SAID HE CONFIRMED PHILLION HAD BEEN AT A TRENTON SERVICE STATION WITH A BROKEN-DOWN CAR LESS THAN TWO HOURS BEFORE OFF-DUTY FIREFIGHTER LEOPOLD ROY WAS STABBED IN A STAIRWELL AND COULD NOT HAVE DRIVEN BACK TO OTTAWA IN TIME TO COMMIT THE MURDER."...............

"IN ONE WAY, THE ADVENT OF DNA TESTING HAS PRESENTED AN UNEXPECTED SETBACK FOR MANY OF THE WRONGLY CONVICTED BECAUSE IT HAS RESULTED IN A DEMAND FOR CONCLUSIVE PROOF OF INNOCENCE BEFORE A WRONGFUL CONVICTION WILL BE ACKNOWLEDGED BY GOVERNMENT, PROSECUTORS, POLICE AND, SOMETIMES, THE COURTS," THE ASSOCIATION IN DEFENCE OF THE WRONGLY CONVICTED SAYS IN COURT DOCUMENTS."

LEGAL AFFAIRS REPORTER TRACEY TYLER: THE TORONTO STAR;

PHOTO BY VINCE TALOTTA: CUTLINE: ROMEO PHILLION FIGHTS MURDER RAP: CROWN HOPING TO SIMPLY CLOSE 1967 CASE, BUT ACCUSED MAN SEEKS FULL ACQUITTAL;

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"Attorney General Chris Bentley came under fire last month when he announced two wrongly convicted men were unworthy of compensation," Legal Affairs Reporter Tracey Tyler's Toronto Star story on Romeo Phillion's up-coming Supreme Court of Canada begins under the heading "Romeo Phillion fights murder rap: Crown hoping to simply close 1967 case, but accused man seeks full acquittal."

But even before going public with his decision on no redress for Robert Baltovich and Anthony Hanemaayer, Bentley was laying the groundwork for an unprecedented legal battle with another victim of a miscarriage of justice – 70-year-old Romeo Phillion. It culminates in an Ottawa courtroom Monday," the story, published earlier today, continues.

"Phillion spent nearly 32 years in prison for the 1967 murder of an Ottawa firefighter. He maintained his innocence but, for nearly the whole time, had no idea a crucial piece of evidence that might lead to his exoneration lay buried in police files.

The evidence in question was a report written on April 12, 1968 by an investigating officer in the case. Det. John McCombie said he confirmed Phillion had been at a Trenton service station with a broken-down car less than two hours before off-duty firefighter Leopold Roy was stabbed in a stairwell and could not have driven back to Ottawa in time to commit the murder.

Last year, in a 2-1 decision, the Ontario Court of Appeal set aside Phillion's conviction, saying the report could have led jurors to arrive at a different verdict back in 1972. The court ordered a new trial.

If Bentley had followed through, Phillion would be walking into the Ottawa courtroom on Monday and entering a plea of not guilty before a Superior Court judge.

Given the passage of time, with key witnesses now deceased and memories faded, and the potential impact of the 1972 McCombie report, prosecutors would have to admit they had no case to present. In fact, the Crown has already conceded a retrial is an impossibility.

Under that scenario, Justice Lynn Ratushny would have no option but to enter an acquittal.

However, Bentley, exercising his discretion, chose another option – he will attempt to withdraw the charge against Phillion Monday.

It's the option Phillion says he has dreaded, since it will leave him in perpetual legal limbo, with a cloud of suspicion over his head.

Instead, he wants to be found not guilty after a fair trial, even if it lasts only a minute or two.

"I'm not a happy camper with the decision they made," he told the Star. "Exoneration. That's what I want. I've still got a cloud over my head and I don't want that. No way."

In documents filed in Superior Court, lawyers for the Association in Defence of the Wrongly Convicted have gone so far as to say Bentley's decision to withdraw the charge may well have been "calculated to convey the impression that the applicant (Phillion) likely killed Mr. Roy."

Phillion's lawyers are arguing that's how the public is likely to interpret the withdrawal of a murder charge.

"How else could it be viewed by anyone who knows that the applicant spent more than three decades in prison for the homicide and close to four decades convicted of the crime?" lawyers James Lockyer, Joanne McLean and Philip Campbell ask in their material.

The lawyers have launched a constitutional challenge to Bentley's decision, arguing that failing to disclose the existence of the McCombie report was a breach of Phillion's right to make full answer and defence to the murder charge.

As a "modest" remedy, they say their client is now simply asking for the right to what he had been denied all along – a fair trial. Denying him that opportunity by withdrawing the charge violates his right to be presumed innocent until convicted after a fair trial, they argue.

But lawyers for the Crown say Phillion's lawyers are attempting to "gut" the discretion historically enjoyed by prosecutors to determine which cases proceed to trial and that, in most cases, no court has the authority to review this power.

For their part, Crown counsel Hilary McCormack and Carl Lem argue that Phillion's push for an acquittal "boils down to an appeal for sympathy" and a purely "symbolic" ending to sweeten in his mind what is already a good result.

Given all the circumstances, it is "inconceivable" that withdrawing the charge could somehow leave him tainted, the lawyers for the Crown contend.

But the Association in Defence of the Wrongly Convicted says that's not what recent history has shown and skeptics need only consider what happened to David Milgaard.

In 1992, the Supreme Court of Canada recommended Saskatchewan's justice minister quash Milgaard's conviction for the 1969 murder of nursing aide Gail Miller and order a new trial.

Instead, the minister "stayed" or suspended the proceedings, and for a long time Milgaard was "mercilessly labelled by many" as the likely murderer.

Saskatchewan Attorney General Bob Mitchell even told a newspaper, "I think he did it."

Five years later, a DNA test led to Milgaard's instant exoneration. With no DNA samples available for testing in his case, however, Phillion can't prove his innocence the same way.

"In one way, the advent of DNA testing has presented an unexpected setback for many of the wrongly convicted because it has resulted in a demand for conclusive proof of innocence before a wrongful conviction will be acknowledged by government, prosecutors, police and, sometimes, the courts," the association says in court documents."

The hearing is expected to continue for several days this week.http://www.thestar.com/news/ontario/article/758502--romeo-phillion-fights-murder-rap

Harold Levy...hlevy15@gmail.com;

JURYGATE: UPDATE; SECRET JURY VETTING BY CROWN AND POLICE; ARGUMENTS TO BE HEARD TODAY IN FIRST DEGREE MURDER CASE;

"THE APPEAL FILED BY IBRAHIM YUMNU AND TWO OTHER MEN IS THE FIRST OPPORTUNITY FOR THE COURT TO DECIDE ON A LEGAL REMEDY FOR THE IMPROPER JURY CHECKS THAT OCCURRED ACROSS ONTARIO FOR SEVERAL YEARS, UNTIL THE PRACTICE WAS EXPOSED LAST SPRING BY THE NATIONAL POST. THERE ARE AT LEAST A DOZEN OTHER OUTSTANDING APPEALS WHERE JURY VETTING TOOK PLACE, INCLUDING THE CASE OF A YOUNG MAN CONVICTED OF KILLING A POLICE OFFICER, ALL AWAITING THE OUTCOME OF THE YUMNU CASE."

REPORTER SHANNON KARI: THE NATIONAL POST.

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BACKGROUND: In a previous post I asked: "Why didn't Ontario prosecutors examine Dr. Charles Smith's qualifications a bit more closely over the years, pay more attention to court decisions suggesting he was biased towards the Crown and that that his opinions were seriously flawed - or at least share the existence of these decisions with the defence?"

My answer was that some prosecutors cared more about winning the case than the possibility that an innocent person might be convicted;

I buttressed my response with the story recently broken by the National Post that prosecutors in several parts of Ontario have been asking police to do secret background checks on jurors.

This controversy has lead to numerous requests for mistrials and could result in a bids to open numerous cases where accused persons have been convicted in the shadow of the illegal practice which taints a criminal jury trial from the outset.

The Charles Smith Blog is very much concerned with the question as to how far prosecutors will go to win the case and is therefore monitoring developments on a regular basis;

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"The Ontario Court of Appeal will hear arguments today in a case that could lead to several convictions being overturned in the province as a result of secret jury vetting by the Crown and police," the National Post story by reporter Shannon Kari, published earlier today under the heading "Convictions may be lost due to secret jury checks: First appeal will decide legal remedy" begins.

"The appeal filed by Ibrahim Yumnu and two other men is the first opportunity for the court to decide on a legal remedy for the improper jury checks that occurred across Ontario for several years, until the practice was exposed last spring by the National Post," the story continues.

"There are at least a dozen other outstanding appeals where jury vetting took place, including the case of a young man convicted of killing a police officer, all awaiting the outcome of the Yumnu case.

Yumnu and two co-defendants were each convicted in 2005 by a jury in Barrie, Ont., of first-degree murder in the slaying of two people suspected of stealing money from a marijuana grow operation.

Local police services in the Barrie area searched confidential databases to uncover information about hundreds of potential jurors, which was passed on to the Crown.
Unlike the United States, only limited information is made available about potential jurors in Canada. The Supreme Court has stressed that the process is aimed at selecting an impartial jury, not one favourable to the Crown or defence.

The secret jury checks in Barrie, which took place in more than 50 cases in just the past three years, have "tarnished the appearance of fairness," writes Yumnu's lawyer Greg Lafontaine in arguments filed with the court.

The inadvertent disclosure in Barrie last spring about the jury vetting "triggered a chain of events that has caused some members of the public to question the very legitimacy of Ontario's criminal justice system," Mr. Lafontaine suggests.

He notes that it resulted in a mistrial in a murder proceeding in Windsor when it came out there were secret jury checks in that case.

As well, that sparked a review by the Ontario Privacy Commissioner who issued a report that revealed improper jury vetting had taken place in about one third of all Crown offices since 2006.

Premier Dalton McGuinty described the practice as "against the law" after it was first reported by the National Post.

The province moved to amend the Juries Act to address privacy concerns and ensure that any checks for eligibility are performed at an independent jury centre that is separate from the Crown and police.

The Crown though, is downplaying the significance of the secret checks, in its written arguments in the Yumnu case.

"The Crown was executing its responsibilities to ensure juror qualifications," states Michal Fairburn, a senior lawyer in the Ministry of the Attorney-General.
"Jurors with criminal records are not simply an abstract concern," she adds.

None of the 800 people investigated by police in the Yumnu trial were found to have a conviction for an indictable offence, which would have made them ineligible to serve as a juror, notes Mr. Lafontaine.

"The ostensible target group (people with criminal records) of the Crown's police database checks was fictional," he states.

"It makes little sense that Canadians who have been adjudged among the least civic minded in the population would be so anxious to perform the most onerous of civic obligations that they would fraudulently attempt to perform jury duty."

Lawyers in the other jury vetting cases are scheduled to meet with a Court of Appeal judge later this month to decide when their arguments will be heard.

One of the appeals is the case of Troy Davey, convicted of first-degree murder in the 2004 death of Cobourg police officer Chris Garrett.

It was recently disclosed that the Crown asked fellow prosecutors and police to examine the jury lists to see if there was any "personal knowledge" they could pass on about individuals, which was kept from the defence.

"There was not a level playing field," said Catriona Verner, who is representing Davey on his appeal. "It seems they were aware of the policy [not to conduct background checks] and were trying to circumvent it," she added."

The story can be found at:

https://mail.google.com/mail/?hl=en&shva=1#inbox/12689868cb06dc50

Harold Levy...hlevy15@gmail.com;

HANK SKINNER CASE: ANOTHER TEXAN WHO MAY BE INNOCENT ON DEATH ROW; DNA TESTING DENIED; EXECUTION SET FOR FEBRUARY 24; TEXAS TRIBUNAL PART ONE;

"SKINNER’S EXECUTION DATE APPROACHES AS TEXAS FACES RENEWED SCRUTINY OF ITS FAMOUSLY BUSY DEATH ROW AND THE SCIENCE USED TO CONVICT THE ACCUSED. SINCE 1973, JUST 11 DEATH ROW INMATES HAVE BEEN EXONERATED, ACCORDING TO THE DEATH PENALTY INFORMATION CENTER, WHILE MORE THAN 440 HAVE BEEN PUT TO DEATH. THE NEW YORKER TOUCHED OFF A NATIONAL DEBATE LAST YEAR ABOUT HOW MANY OF THOSE KILLED MIGHT HAVE BEEN INNOCENT BY POSTHUMOUSLY PROFILING CAMERON TODD WILLINGHAM, WHO WAS EXECUTED IN 2004 AFTER A JURY CONVICTED HIM OF KILLING HIS THREE YOUNG CHILDREN BY ARSON IN 1991. BEFORE WILLINGHAM WAS EXECUTED, ACCORDING TO THE STORY, THE STATE IGNORED EXPERT REPORTS CONTENDING THAT THE FIRE MAY HAVE BEEN ACCIDENTAL AND CALLING THE METHOD USED TO PROVE THAT IT WAS ARSON "JUNK SCIENCE." A TEXAS OBSERVER STORY EARLIER THIS MONTH REVEALED THAT A PSYCHOLOGIST THE STATE HAS RELIED ON TO TEST THE MENTAL CAPACITY OF MORE THAN A DOZEN DEATH ROW INMATES USED FAULTY METHODS TO BOOST IQ SCORES SO THE MEN COULD MEET THE LEGAL STANDARD FOR THE DEATH PENALTY. AND IN DALLAS COUNTY, MAVERICK DISTRICT ATTORNEY CRAIG WATKINS HAS LAUNCHED A CONVICTION INTEGRITY UNIT THAT HAS REVIEWED MORE THAN 400 CASES IN WHICH DNA FROM CRIME SCENES WAS STILL AVAILABLE TO BE TESTED AND HAS DISCOVERED AT LEAST 15 WRONGFUL CONVICTIONS."

REPORTER BRANDI GRISSOM: THE TEXAS TRIBUNE;

(WIKIPEDIA NOTES THAT THE TEXAS TRIBUNE IS A NON-PROFIT NEWS ORGANIZATION IN AUSTIN, TEXAS, DEVOTED TO STATE GOVERNMENT AND PUBLIC POLICY. IT AIMS TO PROMOTE CIVIC ENGAGEMENT THROUGH ORIGINAL, EXPLANATORY JOURNALISM AND PUBLIC EVENTS.)

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BACKGROUND: The editor of the Texas Tribune says in a note that "Hank Skinner is set to be executed for a 1993 murder he's always maintained he didn't commit. He wants the state to test whether his DNA matches evidence found at the crime scene, but prosecutors say the time to contest his conviction has come and gone. Now he has less than a month to change their minds. We (tell) the story of the murders and his conviction and sentencing in the first part of this story." Reporter Brandi Grissom, author of the Tribune series on Hank Skinner, writes: "I interviewed Henry "Hank" Watkins Skinner, 47, at the Polunsky Unit of the Texas Department of Criminal Justice — death row — on January 20, 2010. Skinner was convicted in 1995 of murdering his girlfriends and her two sons; the state has scheduled his execution for February 24. Skinner has always maintained that he's innocent and for 15 years has asked the state to release DNA evidence that he says will prove he was not the killer."

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"Twila Busby was Hank Skinner’s soul mate," the January 28 Texas Tribune story by reporter Brandi Grisson begins, under the heading "Case Open."

"“We just fell together," the story continues.

"We just clicked, man,” he says. The two were hardly apart after they met at an Alcoholics Anonymous meeting. They would kiss in public and cuddled up on the couch to watch thrillers. They were “sick in love,” Skinner says through a telephone receiver behind a Plexiglas window on Texas’ death row unit in Livingston.

A jury found that Skinner was so sick in love that, in a jealous rage, he strangled Busby, bashed in her head and face with an ax handle and then stabbed to death her two mentally disabled adult sons on New Year's Eve 1993. He was sentenced to death for the three murders. His execution is scheduled for Feb. 24.

The 47-year-old doesn’t deny he was in the small house in the tiny West Texas town of Pampa on the night of the murders or that the blood on his clothes that night belonged to 41-year-old Busby and her sons. But Skinner and his lawyers say there’s no way he could have killed anyone; he was so loaded on vodka and pills that he was nearly comatose. They argue that his appointed trial attorney, a former district attorney who had previously prosecuted him for theft and assault, failed to adequately investigate other potential suspects. They insist Texas is about to execute an innocent man — and the state has evidence that could prove it.

The night of the murders, police collected, among other items, clippings from Busby’s broken fingernails, a rape kit, two knives from the crime scene, a bloodstained dish towel and a man’s windbreaker with sweat and hair on it. But most of it has never been DNA-tested. During Skinner’s trial, prosecutors tested some blood and hair from the scene, but not the fingernails, rape kit, knives, towel or windbreaker. Over the last decade, the state has fought Skinner in court to keep it that way. Prosecutors in Gray County and lawyers for the Texas Attorney General’s Office say Skinner had his chance at trial to test the evidence but that he declined, and the jury spoke; now, they say, it's time for him to face the consequences. “It’s already been handled,” says Gray County District Attorney Lynn Switzer. She’s the third district attorney in Pampa to deal with Skinner, who has sued her in federal court, seeking to force release of the DNA. “He doesn’t need to keep trying it over and over and over again. It’s already been handled.”

Skinner’s execution date approaches as Texas faces renewed scrutiny of its famously busy death row and the science used to convict the accused. Since 1973, just 11 death row inmates have been exonerated, according to the Death Penalty Information Center, while more than 440 have been put to death. The New Yorker touched off a national debate last year about how many of those killed might have been innocent by posthumously profiling Cameron Todd Willingham, who was executed in 2004 after a jury convicted him of killing his three young children by arson in 1991. Before Willingham was executed, according to the story, the state ignored expert reports contending that the fire may have been accidental and calling the method used to prove that it was arson "junk science." A Texas Observer story earlier this month revealed that a psychologist the state has relied on to test the mental capacity of more than a dozen death row inmates used faulty methods to boost IQ scores so the men could meet the legal standard for the death penalty. And in Dallas County, maverick District Attorney Craig Watkins has launched a Conviction Integrity Unit that has reviewed more than 400 cases in which DNA from crime scenes was still available to be tested and has discovered at least 15 wrongful convictions.

In Skinner’s case, attorneys argue that prosecutors selectively used DNA testing to put a potentially innocent man on death row, and that the state is manipulating a 2001 law that allows post-conviction DNA testing to keep him on the path to the death chamber. “The case against him is not open and shut; it’s not ironclad,” says attorney Rob Owen, co-director of the University of Texas at Austin’s Capital Punishment Clinic. “And in a reasonable system, we ought to go the extra mile to rule out the possibility that he is an innocent man before going forward with the execution.”

New Year’s Nightmare

Skinner and Busby had plans that New Year’s Eve. They were supposed to go to a friend’s house together, but Skinner got his celebration started early. By the time the friend stopped by the house to get them, Skinner was already passed out on the couch. He was so intoxicated from a codeine and vodka cocktail that even when the friend yanked repeatedly on his arm and hollered at him, Skinner didn’t budge.

So Busby went without him. Friends at the party said Busby’s intoxicated uncle, Robert Donnell, began stalking her there. The two had a predatory incestuous relationship, according to several people who have testified in Skinner's case. A private investigator who looked into Donnell’s past found a long criminal history, including convictions for vehicle theft, embezzlement and burglary. He had served prison time, usually carried a large knife and told stories about having killed a man in a pool hall fight in Oklahoma. Busby’s friends described him as “scary” and said she had called them several times over the years to protect her from his frightening advances.

Agitated by Donnell’s come-ons at the party, Busby left for home — the last time anyone admits to having seen Busby alive. Donnell left the party shortly after, witnesses said, and there has never been a full accounting of his whereabouts that night.

Neighbors called police just before midnight when Busby’s 22-year-old son, Elwin “Scooter” Caler, showed up on their porch in his underwear, bleeding from multiple stab wounds. Police followed a trail of blood back to Busby’s house and walked in on a grisly scene. She was sprawled on the living room floor, her face and head beaten to a pulp; blood was splattered across the room. Her other son, 20-year-old Randy Busby, lay dead in his bunk bed, stabbed three times in the back.

Immediately, Gray County Sheriff Randy Stubblefield identified Skinner as the primary suspect. He sent deputies to look for him in the attic and called in a dog to sniff out a crawl space below the house. They arrested him blocks away hiding at a frightened former girlfriend’s house, blood on his clothes, a deep gash in his hand.

The State’s Case

Andrea Reed, the ex-girlfriend, was the state’s star witness during the 1995 murder trial in Fort Worth (it was moved because of the presumably prejudicial attention the crime received in Pampa). Reed said Skinner was an alcoholic and a drug user. A recovering addict herself, she had sponsored him and Busby in Alcoholics Anonymous but tried to stay away from Skinner, she said, because he had fallen off the wagon.

The night of the murders, she told jurors, Skinner showed up at her trailer house banging on the front door, intoxicated and disoriented, with blood on his clothes and his hand cut. He told her he had been shot in the gut and stabbed in the shoulder, chest and arm. He ordered her to stitch up his hand, she said, and threatened to kill her if she called the police. “I told him the only thing I had was fishing line. And he had to get the fishing line, and I brought the Ambesol to deaden it,” Reed testified. “And he kept heating and bending needles.”

As Reed attempted to stitch his wound, Skinner told her wild stories about how he’d gotten injured. First, he said he had been drinking vodka and smoking crack with Busby when “some Mexicans” came to the front door brandishing knives. At another point in the more than three hours he spent at her house, Skinner told Reed that he had caught Busby in bed with her ex-husband. He started to tell yet another story about a man breaking into the house, Reed said, but he didn’t finish that one. Then, after swearing her to secrecy, Skinner told Reed he thought he had killed Busby. “He said he thought he had kicked her to death,” she told the jury.

John Mann, then the Gray County district attorney, showed jurors DNA testing on blood that covered swaths of Skinner’s clothes, and on blood and hair from Randy Busby’s bedding and body. The DNA put Skinner in the house at the time of the murders. His bloody palm prints were also found at the scene.

Though toxicology tests indicated Skinner had nearly lethal levels of drugs and alcohol in his system, the prosecution argued the habitual user had enough tolerance that he would have been capable of killing Busby and the boys. After all, he had the physical strength to walk several blocks to hide out at Reed’s house and the mental clarity to keep her from calling the police.

The jury condemned Skinner to death in less than two hours.

“Hellfighters”

Skinner grew up in Virginia and moved to Pampa in 1981 after divorcing his first wife. He wanted a clean start and had heard good things about the oil business. “I’d seen ['Hellfighters'] with John Wayne, Boots and Coots, Red Adair and all that, you know. And so, man, I wanted to come out here to Texas,” he says. A jack of all trades, Skinner says he made good money doing everything from welding to installing drywall to working on cars. He also did paralegal work for a local criminal attorney, helping out friends who'd gotten tossed in the clink. That, he says, is how he made enemies in the Pampa law enforcement community.

Of course, his hard drinking and partying ways also caught the attention of local officials. He had a history of committing petty crimes and had been prosecuted for car theft and assault. “I look at everything as an opportunity, and I live life like an adventure," Skinner says. "Somehow or another, man, I irritate people with my lifestyle.” Police turned to him as a suspect in the murders because it was convenient, Skinner says, and “because I was a pain in their ass.”

Skinner contends he was unconscious on the couch, still reeling from the effects of the liquor and the pills, when the murderer attacked his girlfriend and her sons. His blood alcohol content was .24 — three times the legal level of intoxication, .08. Toxicology tests showed Busby was also drunk at the time of the murder and that she struggled mightily, breaking her fingernails as she tried to fend off her attacker. And her boys, though mentally challenged, were physically huge. Caler was more than 6 feet tall and weighed more than 220 pounds; Skinner is only 5 feet 8 inches tall. “This whole case is nothing but a pack of lies from the beginning to the end,” Skinner says.

The way he tells it now, a bleeding and dying Caler managed to rouse him from his chemical-induced lethargy, probably by splashing water in his face. Startled, Skinner says he fell off the couch onto shards of glass from a light fixture the killer broke while wielding the ax handle against Busby. That’s how he got the cut. “It hurt me so bad I jerked my hand back, and when I did I fell the rest of the way,” he says, displaying the scar on the palm of his hand. “And when I was laying flat on the floor, that’s when I saw my girlfriend and what was done to her."

With the ailing Caler propping him up, Skinner says, he left the house to look for help. Caler went to a nearby neighbor’s house, while Skinner headed for the party to get help from the men there. In his stupor, Skinner says he could only walk a few steps before he would fall to the ground. Then he would crawl and try to walk again, only to fall back down and crawl a little farther. He only made it as far as Reed’s house, he says.

Skinner says Reed helped him willingly that night and that he never threatened her. And in a 1997 affidavit, Reed recanted her incriminating trial testimony. She claimed she was intimidated into testifying against Skinner by the police, who told her, she said, that she could face charges if she had helped him. She said Skinner didn’t threaten to kill her and was too intoxicated to carry out such a threat or to have murdered three people. “I believe that his statement about kicking Twila to death was just a drunken fantasy, like the other violent stories that he told me to explain how he was injured,” Reed wrote.

Skinner has always proclaimed his innocence, but state and federal courts have rejected 15 years of his pleadings. Still, as his execution date draws near, Skinner and his advocates continue to wage a legal fight for additional DNA testing. Only then, they say, will Texas know whether Skinner or a third person was the real killer. “They have no right to kill me,” Skinner says, “because I’m innocent, innocent, innocent.”"

The story can be found at:

http://www.texastribune.org/stories/2010/jan/28/dead-man-balking/

Part two: Journalism students to the rescue?

Harold Levy...hlevy15@gmail.com;