Politics Daily
Thursday, June 10, 2010

This story was reported by Rachel Cicurel, Gaby Fleischman, Emily Glazer, and Alexandra Johnson.

In March 1995, a jury left a Fort Worth, Texas, courthouse having unanimously decided that DNA testing and compelling testimony led to an inescapable verdict: Henry “Hank” Skinner deserved to die for the murders of his live-in girlfriend, Twila Busby, and her two adult sons in their home on New Year’s Eve 1993.

Twila was bludgeoned to death; her sons were stabbed. The jury primarily based its decision on evidence that showed the victims’ blood on Skinner’s clothes and the testimony of a neighbor. They deliberated for less than two hours, and Skinner has been on Texas’ death row ever since.

But the jurors were never presented with complete DNA results of the physical evidence, nor could they have imagined that the prosecution’s star witness would recant her testimony and that subsequent developments would strengthen the case that another man may have been responsible for the murders.

Last month, the U.S. Supreme Court announced it would take Skinner’s case and determine whether he can bring a civil rights action to seek DNA testing of the remaining evidence found at the scene. The untested evidence includes vaginal swabs, bloodied knives, fingernail clippings, hair clutched in the female victim’s hand, and a blood-stained windbreaker strikingly similar to one worn by the alternative suspect.

In April of our senior year, the four of us — 22-year-old journalism students from Northwestern University’s Medill Innocence Project — arrived in Texas in search of the jurors. (The trial had been moved to the Fort Worth area from rural Gray County in the Panhandle because of massive pre-trial publicity.) The Medill Innocence Project investigates possible wrongful convictions in homicide cases. In the five days allotted for our reporting trip, we hoped to get in touch with at least one juror. We were pleasantly surprised, however, when more than half the jury opened their doors and memories.

In light of new developments that have surfaced in the 15 years since Skinner’s trial, several of the original jurors are no longer sure of his guilt. Five say they might have had reasonable doubt at the time of the trial if they had known then what they know now. Seven are calling for DNA testing of all the evidence so they can be certain they convicted the right man. An eighth juror we contacted declined to comment.

Some jurors had followed developments in the case, searching the Internet and Texas newspapers for Skinner’s name; others avoided it, hoping never to revisit this traumatic experience. In kitchens, livings rooms, garages, and eateries across Fort Worth and suburban Arlington, the jurors recalled the experience of being sequestered — how detached they felt watching “Forrest Gump” rather than the news of the day.

But plugged back in 15 years later, they considered statements by two of Twila’s friends that the alternative suspect — Twila’s uncle, Robert Donnell, who died in 1997 — allegedly raped her on two occasions and stalked her at a party the night of the murders, as well as those by neighbors who said they had seen him tearing the carpeting out of his truck the morning after the crime and repainting the vehicle within a week.

They also took into account a new medical report indicating the likelihood that Skinner was barely conscious from drinking a mixture of alcohol and codeine at the time of the crime, and sworn statements by the prosecution’s star witness, Andrea Reed, who repudiated her testimony. In the original trial, Reed, Skinner’s ex-girlfriend who lived nearby, had testified that when Skinner came to her trailer shortly after the murders, he made incriminating statements and demanded that she not call the police. But in 1997, she recanted her testimony to a private investigator, claiming that law enforcement had intimidated her into falsely testifying. In 2000, she repeated that claim to another group of Medill Innocence Project students.

“I had no idea that she recanted her story, her testimony; that brings new light,” said Tiffany Daniel, the youngest member of the jury. “That puts a lot of questions in my mind.”

Sitting at her kitchen table, Daniel slowly reintroduced herself to an experience she had closed well over a decade ago. “We were responsible for sentencing,” she said. “If we weren’t presented with all the evidence that could potentially free a man or convict a man…if [he’s put to death] and if this man didn’t do that, that would be something I have to live with.”

Many of the jurors interviewed were taken aback by the amount of untested evidence, stunned that even the blood on two of the murder weapons had not been analyzed. The seven jurors agreed that all the evidence should undergo DNA analysis. “That’s the only way you can come to the right conclusion of if he’s innocent or guilty,” said Danny Stewart, the jury’s foreman. “I would hate personally to put a man to death if he’s innocent.”

Lynn Switzer, the current district attorney of Gray County who is being sued by Skinner in the case before the Supreme Court, has refused to test all the remaining evidence. “If defendants are allowed to ‘game the system’ then we will never be able to rely on the finality of the judgments entered in their cases,” Switzer said in a statement following the court’s decision to take Skinner’s case. “Mr. Skinner has been given plenty of opportunity to show that additional testing could prove his innocence, but he could not show that.”

Texas courts have repeatedly denied Skinner’s requests for DNA tests, ruling that he should have had the testing done at the time of the trial, a position Switzer supports.

Switzer was appointed district attorney by Texas Gov. Rick Perry after District Attorney Richard Roach was convicted of stealing and abusing methamphetamines. In January 2005, the FBI arrested Roach in the Gray County courthouse — a place where he had both injected meth in front of an employee and made a career of prosecuting constituents for using the same drug. Roach had ousted the late John Mann, who served Gray County during Skinner’s trial in 1995.

At his trial, Skinner was represented by Harold Comer, another former district attorney of Gray County. In that role, Comer had earlier prosecuted Skinner on charges of theft and assault. Although Comer resigned from office in 1992 before pleading guilty to criminal charges of embezzling cash confiscated in drug cases, he was later appointed by the judge to represent Skinner at his capital murder trial. To many jurors’ current dismay, however, Comer didn’t request DNA tests prior to trial, saying he did this to protect his client from potentially damaging results.

“All of it should have been tested,” juror Stewart said. “All the DNA evidence should be tested. Period.”

Some additional tests were done following Skinner’s conviction. After being confronted on CourtTV in 2000, Mann had a change of heart. He ordered additional tests on head hairs clutched in Twila’s hand, bloody gauze on the front sidewalk of her home, a cassette tape in the bedroom, and other items.

While some results put Skinner in the home — where he indisputably was at the time of the crime — the tests on one of the head hairs, the blood on the sidewalk, the cassette tape, and an unmatched fingerprint found on a plastic bag containing a bloodied knife all excluded Skinner. At that point, the district attorney’s office — led by Richard Roach when he took over from Mann — halted further testing and returned the evidence to a storage locker, where it sits today.

It was this most recent round of DNA tests that prompted five jurors to say they could have reached a different verdict if they had known at the time of the trial what they know today. The two others said they really didn’t know if the tests would have changed their minds.

“It would have been reasonable doubt,” Daniel said, wiping away tears. “Especially if we had all that evidence, and another person’s fingerprints was on it, or if someone else’s skin was underneath Twila Busby’s fingernails. That’s reasonable doubt that it could be somebody else.”

Douglas Keene, a jury expert and president of Keene Trial Consulting in Austin, said it is “not at all common” for jurors to question their original verdict. “Over time, they become more cemented into that original view because they can’t even tolerate the view that they might have made a mistake on something so serious,” he said.

Keene emphasized that jurors might feel anxiety that they may have come to the wrong conclusion, regardless of whether it was their fault. “Even if they didn’t have an opportunity to know the exculpating evidence, jurors could become distraught that a man’s life might have been taken in error.”

But in Skinner’s case, information suppressed during the trial and developed over the last 15 years has caused five jurors to contemplate their guilty vote in light of the high stakes Keene described. With someone’s life on the line, Keene said, jurors take the burden of their responsibility very seriously.

In worn-in jeans and a T-shirt, juror Jerry Williams perched on a stool in his garage. He wonders now if DNA results could put the case to rest.

“What’s right is right and what’s wrong is wrong,” Williams said. “It should have been tested before. … Somebody’s life is at stake.”

Meanwhile, Hank Skinner remains on Texas’ death row, within 47 minutes of execution on March 24 until the Supreme Court issued a stay. He has maintained his innocence since the night in 1993 that Twila Busby and her sons were murdered, and hopes the high court will give him the right to prove it.

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.

By: Edwin Rios
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. Dretkedeath 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.”