Willie Manning deserves DNA testing before May 7 execution

by Barry Scheck and Peter Neufeld

Last week the Mississippi Supreme Court in a 5-4 decision denied Willie Manning the opportunity to do DNA testing that could prove he is innocent of the crime that landed him on death row. Tragically, Manning is scheduled to be executed on Tuesday and may never get the opportunity to do the testing that could prove whether he is innocent as he has always maintained.

We urge Gov. Phil Bryant to issue a stay so the testing can be done. While people can differ on whether the death penalty is an appropriate form of punishment, nearly everyone would agree that it should be used only in those cases where we are certain of guilt. DNA testing could provide that certainty or prove, as Manning insists, that he is innocent. It could also, as the Mississippi Supreme Court judges noted in their dissent, provide the identity of alleged second perpetrator who has never been caught.

Eighteen people who served time on death row have been exonerated by DNA evidence since it became available two decades ago. One of those men, Kennedy Brewer, was convicted in Mississippi. Like Manning, Brewer was convicted based on circumstantial evidence and unvalidated forensic science. In Brewer’s case, the prosecution relied on widely discredited bite mark testimony, and in Manning’s case the prosecution presented hair microscopy, which because of its unreliability will be subject to a recently announced FBI nationwide review. The DNA evidence in Brewer’s case proved his innocence and identified the real perpetrator who confessed to the crime and another murder for which someone had been wrongly convicted and sentenced to life. Fortunately, that man, Levon Brooks, was also exonerated.

We don’t know what the DNA evidence will ultimately prove in Manning’s case, but there is a good chance that it will be highly probative — and much more reliable than the kind of evidence that was used to convict him of the 1992 murders of Pamela Tiffany Miller and Jon Stephan Steckler. The two students were kidnapped after leaving a party at Mississippi State University and were driven to a remote location and both were shot to death. At trial, there was no physical evidence linking Manning to the crime. The prosecution relied on circumstantial evidence. At one point the Mississippi Supreme Court overturned his conviction because Manning’s lawyers weren’t allowed to fully cross-examine the informant, but the court later reconsidered its decision and let the conviction stand.

Since 1994, Manning has been seeking DNA testing of the rape kit, fingernail scrapings that were recovered from both victims and hairs recovered from the scene. Rape kits and fingernail scrapings are routinely tested today because the testing can prove with near certainty who committed the crime. Before DNA evidence, prosecutors would often rely on hair microscopy to place a defendant at the scene even though the practice was never scientifically validated. After DNA evidence exonerated three people who had been wrongly convicted in part based on this type of evidence, the FBI announced this year that it would undertake a massive review of all cases in which one of its analysts testified about this type of evidence. Given that the FBI performed the hair microscopy in this case, it would seem that Manning’s case should be subject to this review — if he isn’t put to death first.

As the dissenters noted, given that it is alleged that two perpetrators committed the crime, it’s puzzling that the district attorney is so resistant to testing.

The Mississippi Supreme Court has said that the DNA testing is unnecessary because there is other overwhelming evidence of guilt. But appeals courts were also wrong in the cases of all 306 DNA exonerations, including the 18 who served time on death row. DNA testing has the potential to tell us once and for all who committed these two tragic murders, and that’s something we all should want.

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Barry Scheck and Peter Neufeld are co-founders and co-directors of the Innocence Project, a national litigation and public policy organization dedicated to exonerating wrongly convicted individuals through DNA testing and reforming the criminal justice system to prevent injustice.

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Mississippi to Execute Man Without DNA Testing Crucial Evidence

In 5-4 decision, Mississippi Supreme Court denies DNA testing for Willie Manning

Willie Manning is on death row in Mississippi, awaiting execution for the abduction and murder of two college students in 1992. He was convicted on circumstantial evidence, including the testimony of a jailhouse informant who had previously given a statement implicating another person. No physical evidence has ever linked Willie to the crime, and he has always maintained his innocence. He has been seeking DNA testing of crime scene evidence for years.

Incredibly, the Mississippi Supreme Court ruled in a 5-4 decision that there is “overwhelming evidence of guilt,” so no DNA testing is needed. His execution has been set for May 7th. Eighteen men have been exonerated by DNA testing after being sentenced to death, including Kennedy Brewer of Mississippi. We are asking the Governor to stay the execution and order the DNA testing that will definitively prove Willie Manning’s guilt or innocence.

Join us in calling on Mississippi Governor Phil Bryant to stay Willie’s execution and order DNA testing!

Click  >>here to take action NOW <<

Where’s Your Evidence?

Advances in forensic science have made physical evidence increasingly crucial in criminal justice – but the practice of preserving and maintaining that evidence is often underfunded, poorly managed, or just plain sloppy

By Jordan Smith

For more than a decade, lawyers for death row inmate Hank Skinner fought prosecutors – in Gray County and the attorney general’s office – for the right to DNA-test certain items of evidence. Skinner was convicted and sentenced to die for the 1993 murder of his girlfriend Twila Busby and her two grown sons in the home they shared in the Panhandle town of Pampa. The crime scene was bloody – Busby was bludgeoned, her sons repeatedly stabbed – and while some DNA tests have been performed, there was plenty of evidence that hadn’t been tested, including a sweat- and blood-stained windbreaker. The jacket is crucial, attorney Rob Owen has argued; found next to Busby’s body, the tan snap-front jacket resembled one regularly worn by Busby’s now-deceased uncle Robert Donnell, who the defense claims was obsessed with Busby and may have been her real killer. In short, testing the jacket might help prove Skin­ner’s innocence – or confirm his guilt.

On June 1, 2012, the state finally dropped its opposition to the testing. Just two weeks later, Owen was again frustrated when the AG’s Office informed him that the windbreaker was missing. “According to the state, every other piece of evidence in this case has been preserved,” he said at the time. “It is difficult to understand how the state has managed to maintain custody of items as small as fingernail clippings, while apparently losing something as large as a man’s windbreaker.”

No one seems to know when or how the jacket went missing. The Pampa Police Depart­ment, which investigated the murders, originally held all of the evidence related to the case. When the time came for Skinner to be tried, the evidence was handed over to Gray County. Some time after Skinner was tried, the jacket simply disappeared – and no one knows where it went, said Gary Noblett, a 41-year veteran of the Pampa PD and custodian of its evidence and property storage. Over the years, he said, a number of law enforcement types have called looking for it – including officials with the AG’s Office. “As far as I know of, no one’s ever been able to find that thing,” he said. Skinner remains on death row as DNA testing on other items of evidence continues.

Skinner’s case is not unusual. Unfor­tun­ately, missing evidence is “way more common than you’d think,” says evidence expert John Vasquez. Vasquez worked in property and evidence management for 25 years, first for the military and then for the Fort Worth and Wichita Falls PDs, before starting his own evidence-control consulting business. More often than not, the evidence hasn’t actually been removed from a law enforcement storage facility – though scandals involving stolen evidence are unnervingly common, as officials with the Houston PD can readily affirm. Instead, says Vasquez, missing evidence is generally misplaced evidence – logged into one area of a storage facility and then moved without anyone noting the new location, or overlooked when a department’s evidence-tracking system is upgraded.

That is, perhaps, the good news – though having something and not knowing where it is, or not being able to find it, is hardly less damaging than discovering that an item has been stolen or destroyed outright.

Indeed, an investigation by the Chronicle into the state of criminal evidence storage and retention in Texas reflects that while state laws firmly mandate the preservation and maintenance of evidence that may contain biological material, there is little consistency in how these laws are actually carried out, including wide disparities in how evidence is packaged and maintained. Legislation enacted in 2011 extended by decades the length of time that items of evidence that may contain DNA must be stored, and directed a group of stakeholders to come up with guidelines and best practices for the handling and storage of that evidence. However, many law enforcement officials see the legislation as merely a good first step, and moreover, an unfunded mandate.

A key piece of evidence that went missing in Hank Skinner’s murder case.

by Gray County Evidence Photo

Property and evidence technicians and managers are often poorly paid and receive very little training, if any, on how to do their jobs, says Vasquez. That’s a combination that can quickly lead to scandal for a police department working within a criminal justice system that increasingly relies on science to make evidence meaningful.

As forensic science evolves and DNA testing becomes more precise, the amount of material being collected has also increased, thrusting the maintenance of evidence – once considered the “red-headed stepchild of law enforcement,” says Vasquez – into the legal spotlight, and expanding the need for skilled inventory management. “We are somewhat overrun by stuff,” says Belton Police Chief Gene Ellis, a representative of the Texas Police Chiefs Association who was among a group of stakeholders involved last year in the creation of best practices for evidence preservation in Texas. DNA testing “has enhanced so that we’re able to process things and come up with DNA evidence where we couldn’t before.”

Without sufficient understanding of the critical role that the proper preservation of evidence now plays – not only in convicting the guilty, but also in freeing the innocent – the system is in serious trouble, officials warn. “Evidence has been one of the biggest issues we’re dealing with in law enforcement,” says Tony Widner, chief of the Graham PD, a small department south of Wichita Falls. “You’re not just talking about the credibility of the department; you’re talking about a victim seeing justice.”

Continue Reading @ Austin Chronicle

 

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How Many Innocent People Have We Sent To Prison?

Liz Webster

Reuters/Joshua Lott

When Beverly Monroe met her new neighbors in the free world after spending seven years in a Virginia prison for a crime she didn’t commit, she spoke candidly about her past. “I said I’d been through a crisis,” she says. “People immediately think a divorce or you lost your husband or something like that, which is all terrible enough.”

Monroe did lose her longtime boyfriend, Roger de la Burde, who was found shot to death with his own handgun in 1992. An overzealous state police agent suspected foul play, even though officials initially believed that de la Burde had shot himself. Monroe’s statements to police, which were deemed to be self-incriminating, coupled with an informant who received a deal from the prosecution in exchange for her testimony, formed the basis for the case against her. At 54, the mother of three was charged and convicted of murdering de la Burde and sentenced to twenty-two years at the Pocahontas Correctional Center. Monroe might have served the whole sentence had her attorneys not discovered a collection of concealed exculpatory documents, including a crucial medical examiner’s report from 1999 that strongly suggested that de la Burde had indeed committed suicide. In 2002 a US District Court judge vacated the conviction.

Now in her 70s, Monroe works as an administrative assistant. The lost income and lack of savings from her years behind bars have made retirement a distant dream. “I’ll have to work until I’m 105,” she says. Virginia has not compensated her for the years lost to prison or for her legal expenses. (Her trial cost nearly $200,000.)

“Being innocent in prison is real torture,” Monroe says. “It’s a lasting kind of trauma…. You’re released, and you realize that it didn’t just happen to you—it’s happened to other people who have had it so much worse.”

How many other people? No one knows. The Bureau of Justice Statistics doesn’t track exonerations, so for years that task has fallen to lawyers, academics and activists relying on news reports and legal filings. While the Innocence Project and the Death Penalty Information Center track exonerations, neither group’s database is complete. No single resource has amassed all of the known exoneration cases.

Until now. On May 21, the University of Michigan Law School, in conjunction with the Center on Wrongful Convictions at the Northwestern University School of Law, released the first-ever National Registry of Exonerations. The searchable online database is the most credible and comprehensive resource on wrongful convictions in the United States. Peter Neufeld, the co-founder and co-director of the Innocence Project, has called it the “Wikipedia of Innocence.” The registry, which can be viewed at exonerationregistry.org, currently counts 891 cases since 1989, the year of the first exoneration achieved using DNA.

The scope is significant: reliable data on false convictions had been limited to DNA exonerations and death row exonerations. Beverly Monroe doesn’t fit either category, and neither would the vast majority of exonerated prisoners: less than 1 percent of the nation’s prison population is on death row, and DNA evidence applies only to a small fraction of all criminal cases—those with biological evidence like semen, blood, hair and saliva.

In addition to examining “a much broader group of exonerations,” according to University of Virginia law professor Brandon Garrett, the registry shows “that there are a lot of exonerations that don’t get a lot of press attention.” It also alters the conventional wisdom about how innocent people get convicted. For his 2011 book, Convicting the Innocent, Garrett scoured the first 250 DNA exonerations and identified eyewitness misidentification as the leading cause of those wrongful convictions (as have others). But the larger pool of cases reflected in the registry reveals other trends. According to University of Michigan law professor Samuel Gross, “perjury or false accusation” is the leading cause of wrongful conviction.

Continue Reading @ The Nation

 

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Statement from Attorney for Hank Skinner in Response to Initial DNA Test Results in Hank Skinner Case

Following the advisory filed by the Attorney General’s office and media reports, Hank’s attorney issued the following press release:

Statement from Attorney for Hank Skinner in Response to Initial DNA Test Results in Hank Skinner Case

“We find it troubling that the Attorney General’s Office has seen fit to release partial results of the DNA testing and submit its ‘advisory’ to the court while the DNA testing is still in progress. The partial results which have been produced by the initial round of DNA testing show that at least one person other than Hank Skinner and the victims may have been present in the house on the night the murders took place, and may have had contact with one of the weapons used in the killings.

We will remain unable to draw any strong conclusions about whether the DNA testing has resolved the stubborn questions about Hank Skinner’s guilt or innocence until additional DNA testing has been completed, and the data underlying that DNA testing has been made available to our experts for a detailed review.

Specifically, DNA testing of a carpet sample from the bedroom occupied by victims Elwin Caler and Randy Busby reveals a mixture of the DNA of Mr. Caler and that of an unknown person who is not Mr. Skinner, Randy Busby, or Twila Busby.

In addition, DNA testing of one stain on a knife that may well have been used in the murders reveals a mixture of DNA from three contributors.  Two of those contributors appear to be Mr. Caler and Mr. Skinner, but the third contributor is someone other than Mr. Caler, Mr. Skinner, Randy Busby or Twila Busby.

The DPS crime laboratory submitted the unknown DNA profile from the carpet sample to the Texas law enforcement DNA database, but that search produced no matches.

We have requested additional DNA testing that could improve the quality of the unknown DNA profile from the carpet sample, to allow authorities to submit it to CODIS, the national law enforcement DNA database, to search for matches there.  We have also requested additional DNA testing of the stains from the knife, likewise hoping to develop further the DNA profile of the third contributor.

All the parties must do everything in their power to make sure Texas does not make an irreversible mistake.”

Rob Owen, attorney for Hank Skinner | Clinical Professor, University of Texas School of Law
Please show Hank your support!

Thank you!

Via @ HankSkinner.org

 

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Savory files another request for DNA testing

By Denise Jackson

Johnnie Savory

PEORIA,IL–Johnnie Lee Savory continues his quest for DNA testing nearly 35 years since he was convicted for the murders of his friend and sister. Attorneys for Savory filed a motion in Peoria County Court Wednesday asking for DNA testing, saying new technology would support his claims of innocence.

Flanked by attorneys, supporters and Northwestern University law school students, Johnnie Lee Savory returned to Peoria Wednesday to file a motion for D-N-A testing in his 1977 murder case.

“The truth is what matters and we want the truth. We don’t want to continue with the same saga, year after year after year. But I’m prepared to fight as long as it takes,” he said.

Savory was convicted twice in the murders of 19-year old Connie Cooper and her brother 14-year old James Robinson. He was retried after the Illinois Appellate Court ruled that police obtained his confession illegally. In the second case the prosecution relied on testimony from three siblings who later recanted their statements about Savory admitting to the murders. Savory’s legal team wants DNA testing on 5 pieces of evidence, they say would support his innocence.

“It’s been a 35 year long struggle. Dr. Martin Luther King said the ark of the moral universe is long but it bends toward justice and it’s time here in Peoria for it to bend towards justice in the case of Johnnie Lee Savory,” said Steven Drizin of Northwestern University’s Center on Wrongful Convictions.

Savory was paroled in December of 2006 and has lived in Chicago. He was surrounded by several other men who say they were exonerated after DNA testing. He says it’s disturbing that his efforts have fallen on deaf ears.

“In all these cases of DNA why wouldn’t you allow the testing be used in my case? Why? That’s the only question that should occupy the networks and the newspaper,” he said.

Savory’s legal team says advances in DNA technology could finally bring clarity, and closure to the controversial case.

Via @ CINewsNow

 

AG Says DNA Tests Implicate Hank Skinner in ’93 Murders

by Brandi Grissom

credit: Caleb Bryant Miller

DNA testing that death row inmate Hank Skinner sought for more than a decade further implicates him in the New Year’s Eve 1993 triple murder for which he was sentenced to die, according to an advisory that the Texas attorney general’s office filed Wednesday in Gray County state district court.

But a lawyer for Skinner, who was convicted in 1995 of the murders of his live-in girlfriend, Twila Busby, and her two adult sons in Pampa, said the DNA testing is incomplete and indicates that another person may have been at the scene of the crimes.

“We find it troubling that the Attorney General’s Office has seen fit to release partial results of the DNA testing and submit its ‘advisory’ to the court while the DNA testing is still in progress,” Rob Owen, co-director of the University of Texas at Austin’s Capital Punishment Clinic, said in an emailed statement.

Skinner has steadfastly maintained his innocence, claiming that he was unconscious on the couch at the time of the killings, intoxicated from a mixture of vodka and codeine. Beginning in 2000, he pleaded for DNA testing that he argued would prove his claims. In 2010, the U.S. Supreme Court stayed his execution less than an hour before he was scheduled to die and agreed to hear arguments in his case. Skinner sought testing on a slew of crime scene evidence that was not analyzed at his original trial, including a rape kit, biological material from Busby’s fingernails, sweat and hair from a man’s jacket, a bloody towel and knives.

Lawyers for Skinner and the state finally agreed in June to testing. In the advisory filed Wednesday, state lawyers said the DNA results further confirmed that Skinner, 50, was responsible for the murders.

“DNA evidence collected at the crime scene consistently indicated Skinner was guilty of strangling and bludgeoning Ms. Busby to death in the living room of her home on New Year’s Eve 1993,” the advisory states. “Crime scene evidence also showed that Skinner was responsible for the stabbing deaths of Randy Busby and Elwin ‘Scooter’ Caler.”

The AG’s office reported that a rape kit did not indicate that Busby was sexually assaulted, and vaginal swabs did not reveal DNA from any other person. Fingernail scrapings and hairs from Busby’s body also did not reveal another person’s DNA, the advisory states.

The DNA results, state lawyers wrote, also show that Skinner’s blood was found in the back bedrooms of the house, where Randy Busby was found stabbed to death in the back. Skinner’s DNA was identified in blood stains from a tape, in two blood stains on a tennis shoe, a blood stain from the bedspread, a blood stain on a cassette holder and on a blood stain near a dresser in the boys’ bedroom.

Skinner’s DNA was also found on the handle of a bloody knife that was recovered from the front porch of the home, along with DNA from Caler and at least one other contributor, who was not identified.

But testing was not done on a man’s jacket found at the scene, because that item had been lost. Owen has said the jacket is a critical piece of evidence that must be tested, because it looks like one that Twila Busby’s uncle Robert Donnell wore.

Continue Reading @ Texas Tribune

Statement from Attorney for Hank Skinner in Response to Initial DNA Test Results in Hank Skinner Case

“We find it troubling that the Attorney General’s Office has seen fit to release partial results of the DNA testing and submit its ‘advisory’ to the court while the DNA testing is still in progress. The partial results which have been produced by the initial round of DNA testing show that at least one person other than Hank Skinner and the victims may have been present in the house on the night the murders took place, and may have had contact with one of the weapons used in the killings.

We will remain unable to draw any strong conclusions about whether the DNA testing has resolved the stubborn questions about Hank Skinner’s guilt or innocence until additional DNA testing has been completed, and the data underlying that DNA testing has been made available to our experts for a detailed review.

Specifically, DNA testing of a carpet sample from the bedroom occupied by victims Elwin Caler and Randy Busby reveals a mixture of the DNA of Mr. Caler and that of an unknown person who is not Mr. Skinner, Randy Busby, or Twila Busby.

In addition, DNA testing of one stain on a knife that may well have been used in the murders reveals a mixture of DNA from three contributors.  Two of those contributors appear to be Mr. Caler and Mr. Skinner, but the third contributor is someone other than Mr. Caler, Mr. Skinner, Randy Busby or Twila Busby.

The DPS crime laboratory submitted the unknown DNA profile from the carpet sample to the Texas law enforcement DNA database, but that search produced no matches.

We have requested additional DNA testing that could improve the quality of the unknown DNA profile from the carpet sample, to allow authorities to submit it to CODIS, the national law enforcement DNA database, to search for matches there.  We have also requested additional DNA testing of the stains from the knife, likewise hoping to develop further the DNA profile of the third contributor.

All the parties must do everything in their power to make sure Texas does not make an irreversible mistake.”

– Rob Owen, attorney for Hank Skinner | Clinical Professor, University of Texas School of Law
November 14, 2012

 

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Damon Thibodeaux is the 300th DNA Exoneree!

Via The Innocence Project:

Damon Thibodeaux, who has been on death row in Louisiana since October 1997, was exonerated of the murder and rape of his 14-year old step-cousin, Crystal Champagne, making him the 300th person to be exonerated by DNA evidence in the United States, and the 18th to have served time on death row.

 

 

Damon Thibodeaux was sentenced to death for the New Orleans-area murder of his half-cousin Crystal Champagne based largely on his recanted confession. Thibodeaux spent 15 years in prison for the crime before his exoneration through DNA testing on September 28, 2012.

The Crime

Fourteen-year-old Crystal Champagne was last seen alive on the late afternoon of July 19, 1996, when she left the family’s Westwego, Louisiana, apartment for a Winn-Dixie at the nearby strip mall. When she did not return home as expected, her family, several friends and law enforcement began a search for her that ended on the following evening with the discovery of her body along the levee in Bridge City. There was a piece of red extension cord around her neck and the right side of her head and face had been beaten. In addition, her shirt was pulled above her breasts and her shorts around her knees and ankles, suggesting a possible sexual assault.

The Confession and Trial

Thibodeaux was among the suspects brought in for questioning by police after the murder. He initially denied any involvement in the crime and agreed to take a polygraph. He was informed that he had failed the polygraph.

After additional hours of interrogation, he gave a recorded statement confessing to consensual and non-consensual sex with the victim and then to beating and murdering her. Only 54 minutes were recorded out of the entire 8 ½ hour interrogation. This confession was inconsistent with the crime in numerous details. After learning from detectives that the victim had been strangled, Thibodeaux confessed to using a white or gray speaker wire from his car. Thibodeaux was fed non-public details about the crime, but here he guessed incorrectly. He couldn’t have known about the red electrical cord, which had been burned off a section of cord found hanging from the tree above her body.

Although forensic examiners could find no evidence of semen in the victim’s body, a detective theorized that a sexual assault still could have occurred and that post-mortem maggot activity had consumed and degraded the evidence.

Additionally, two eyewitnesses testified that they saw someone pacing near where the body was found. They both selected Thibodeaux from a photo array and identified him in court.

Post-Conviction

In 2007, based on evidence of Thibodeaux’s innocence, the Jefferson Parish District Attorney’s Office initiated a joint reinvestigation with the Innocence Project and the rest of Thibodeaux’s legal team. The parties conducted multiple rounds of DNA and forensic evidence testing of the crime scene and other physical evidence and interviewed numerous fact witnesses.

The eyewitnesses who identified Thibodeaux as the man they had seen pacing near the crime scene had already seen Thibodeaux’s photo in the news media before taking part in the identification procedure. Moreover, they revealed that the sighting had occurred the day after the body was found, when Thibodeaux was already in custody.

DNA testing performed by Dr. Edward Blake and other forensic experts concluded that there was no evidence connecting Thibodeaux to the murder and that, contrary to Thibodeaux’s statement, the victim had not been sexually assaulted. DNA testing of the maggots revealed no evidence of semen. DNA testing on both Thibodeaux and Champagne’s clothing confirmed that he could not have been the perpetrator. DNA on the cord in the tree, which had tested positive for blood in the original investigation, revealed male DNA that did not belong to Thibodeaux.

The reinvestigation further confirmed that Thibodeaux’s confession was false in every significant aspect and included a thorough examination of the reasons why Thibodeaux had falsely confessed, including exhaustion, psychological vulnerability and fear of the death penalty. The prosecution’s own expert had concluded that Thibodeaux falsely confessed based on fear of the death penalty, but this information was never shared with the defense.

District Attorney, Paul Connick, Jr., joined the Innocence Project, the Capital Post-Conviction Project of Louisiana and the law firm of Fredrikson & Byron in agreeing to overturn Thibodeaux’s conviction and death sentence, and he was released in September 2012 after 15 years on death row and 16 years of wrongful incarceration as the 300th person exonerated through DNA testing.

 

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Evidence Missing in Skinner Case

“It is beyond reasonable dispute that DNA testing on this jacket is critically important to the reliable determination of guilt in this case,” “It is difficult to understand how the State has managed to maintain custody of items as small as fingernail clippings, while apparently losing something as large as a man’s windbreaker jacket.” – Rob Owen, Attorney representing Hank Skinner.

 

By Jordan Smith

The windbreaker in question

Just two weeks after the state announced it would drop its opposition to the post-conviction DNA testing of evidence in the capital murder case that sent Hank Skinner to death row, comes news that at least one piece of evidence Skinner has been seeking access to for testing has been lost.

Among the key pieces of evidence never before tested, and that Skinner has sought access to for more than a decade, is a blood- and sweat-stained windbreaker found near the body of his girlfriend Twila Busby. The windbreaker is now apparently missing. “We are pleased to have reached an agreement that finally secures DNA testing in this case, but there remains reason for grave concern,” Skinner’s attorney Rob Owensaid in a press statement. “According to the State, every other piece of evidence in this case has been preserved. It is difficult to understand how the State has managed to maintain custody of items as small as fingernail clippings, while apparently losing something as large as a man’s windbreaker. To date, the State has offered no explanation for its failure to safeguard the evidence in this case.”Indeed, in addition to 40 items of evidence that have never before been tested for DNA is the windbreaker found next to the body of Busby, who was slaughtered along with her two sons, in the Pampa home she shared with Skinner. There are photos of the windbreaker, a tan jacket with snap buttons down the front, but the windbreaker itself has disappeared – and no one seems to know how or when it was misplaced, or where it might’ve gone. The Gray County Sheriff’s Office says it has never had custody of the jacket; Gary Noblett, from the Pampa Police Department, a 41-year law enforcement veteran who now manages the department’s evidence, says that everything the Pampa PD had stored as evidence in the case was eventually transported for Skinner’s original trial. After Skinner was convicted the evidence was moved back to Gray County, he said, but “somehow or another” the windbreaker never made it back. He says the PD has fielded questions about the missing windbreaker for three or four years – at some point including questions from the AG’s office – but “as far as I know, no one’s ever been able to find that thing.”

The AG’s office did not immediately respond to questions about the missing jacket, or about how long they’ve been aware that it is missing.

Busby and her two sons were slaughtered in 1993. Skinner has long claimed he is innocent of the crime; he admits he was in the house the night the family was slaughtered, but says he was knocked out by a cocktail of booze and prescription drugs and awoke to find the carnage. Skinner maintains that the circumstantial case against him could be discredited through DNA testing of multiple items of evidence not tested before his 1995 trial – including vagina swabs and fingernail clippings taken from Busby, two knives found in the home (one on the front porch, the other in a black plastic bag that also contained a dishtowel), and various blood-stained items (door knobs and molding) collected from the crime scene. The windbreaker is also key to Skinner’s story, says Owen, because a witness in the case has identified the jacket from a photo as a jacket that belonged to, and was “regularly worn by,” Busby’s uncle Robert Donnell who had been seen stalking Busby at a party shortly before she was killed.

Nonetheless, the state had objected to the post-conviction DNA testing, arguing before the Court of Criminal Appeals last month that to allow the DNA testing now would be to incentivize defendants charged with capital murder, and facing the death penalty, to delay DNA testing at trial in order to have grounds for a post-conviction death row appeal. That argument did not seem to impress the generally state-friendly CCA and less than a month after the hearing the state reversed its course to agree that, in the interest of justice, Skinner should be allowed access to DNA testing.

The joint motion, filed June 12, includes details of how the evidence testing should proceed; all evidence is to be transported to the Texas Department of Public Safety lab in Lubbock, where it will be inspected by lawyers for both parties before any testing begins. Any unknown DNA profile found as a result of the testing will be run through state and national databases, if possible, and followed by the issuance of a report by DPS documenting the test results and DNA comparisons. Forty-five days after all of the data has been reported to the parties a hearing on the matter will be held in Gray County.

Find the entire motion here.

 

Via @ Austin Chronicle

 

 

 

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• TEXAS – State Backs DNA Testing for Hank Skinner (claimyourinnocence.wordpress.com)

Top Criminal Court to Hear Hank Skinner’s DNA Plea

http://www.texastribune.org/texas-dept-criminal-justice/hank-skinner/top-criminal-court-hear-skinners-dna-plea/

May 2, 2012

 

Top Criminal Court to Hear Hank Skinner‘s DNA Plea

by Brandi Grissom

 

Death row inmate Hank Skinner’s decade-long fight for DNA testing, which he hopes will prove his innocence in a grisly West Texas triple murder, will take center stage this morning in the state’s highest criminal court.

 

Skinner, now 50, was convicted in 1995 of the strangulation and beating death of his girlfriend Twila Busby and the stabbing deaths of her two adult sons on New Year’s Eve 1993 in Pampa. Skinner maintains he is innocent and was unconscious on the couch at the time of the killings, intoxicated from a mixture of vodka and codeine.

 

A decision from the Texas Court of Criminal Appeals could take weeks or months.

 

For more than a decade, Skinner has asked the courts to allow testing on a slew of evidence that was not analyzed at his original trial: a rape kit, biological material from Busby’s fingernails, sweat from a man’s jacket, a bloody towel and knives from the crime scene.

 

Lawyers in the Texas attorney general’s office argue that Skinner is only trying to put off his inevitable execution and that the evidence of his guilt is so overwhelming that DNA testing is unwarranted. But Rob Owen, one of Skinner’s lawyers and the co-director of the University of Texas at Austin’s Capital Punishment Clinic, said he is hopeful the Texas Court of Criminal Appeals will finally allow the testing.

 

“The facts of Mr. Skinner’s case bear some of the hallmarks of wrongful conviction cases from around the country,” Owen said. “For all these reasons, none of the state’s arguments diminish the urgent need for DNA testing in his case.”

 

The appeals court has denied Skinner’s previous requests for testing, citing restrictions in the 2001 post-conviction DNA testing law. Lawmakers over the last several years, though, have repealed the restrictions that the court cited. Most recently, during the 2011 legislative session, lawmakers repealed part of the law that allowed DNA testing only in cases where analysis was not done during the original trial because the technology did not exist or for some other reason that was not the fault of the defendant.

 

In Skinner’s case, his original trial lawyers chose not to request DNA testing on all of the evidence available because they worried that it would further implicate him. Lawmakers referred to his case when they repealed the provision last year, and the court of appeals stayed Skinner’s execution date in November so it could “take time to fully review the changes in the statute as they pertain to this case.”

 

Today, lawyers for Skinner, who is at the Polunsky Unit in Livingston, will argue to the court that legal impediments to the testing that previously existed are gone. DNA testing, they say in court documents, could reveal not only that the death row inmate is innocent, but it could point to the real perpetrator.

 

“The State may well have the wrong man, and, in combination with exculpatory DNA results, evidence that would very likely leave a rational jury harboring reasonable doubt about his guilt,” Skinner’s lawyers wrote in a brief to the court.

 

The court must only decide whether the results of DNA testing, combined with other evidence, could cause a jury to have reasonable doubt about Skinner’s guilt, his lawyers argue.

 

Skinner’s lawyers theorize in court filings that it was Busby’s uncle, Robert Donnell, who killed her. Witnesses reported seeing Donnell, who has since died, harass Busby at a party the night before the killing. The two had previously had sexual encounters, he had a violent history and neighbors reported seeing him cleaning his truck with a hose and stripping the carpet from it days after the murders.

 

Skinner’s lawyers contend that toxicology reports show that Skinner would have been too inebriated at the time of the crimes to have been physically capable of strangling Busby to unconsciousness, stabbing her 14 times and then stabbing her two large sons to death.

 

Additionally, the one witness who said Skinner confessed to the murders — an ex-girlfriend of his — has since recanted her testimony, saying authorities coerced her.

 

But lawyers for the state argued in a court brief that “nothing that DNA testing might reveal would lead a jury to acquit Skinner of involvement in these murders.”

 

Skinner’s former girlfriend’s recantation, they charge, was untruthful. Skinner, an admitted alcoholic, they say, would have been more tolerant of the chemicals he had ingested.

 

State lawyers also submitted a statement that Skinner gave to the sheriff just hours after the murder in which he described a fight he had with Busby the night she was killed. “I can see me arguing with Twila. I can might even see maybe I might have killed her. But I can’t see killing them boys,” he said. (That statement was not admitted during trial because, Skinner’s lawyers wrote, it was taken while Skinner was deprived of sleep and still under the influence of painkillers he was given for an injury to his hand the night of the murders, and the prosecutor didn’t attempt to have it admitted because he said he “knew darn well it wasn’t admissible” because “it was so blatantly violative of the defendant’s rights.”)

 

The state also argues — despite the repeal of the provision prohibiting testing in cases where inmates chose not to have evidence analyzed previously — that the court should deny the testing because Skinner elected not to do it at his trial. Lawmakers, state lawyers said, did not intend to allow a defendant to “lie behind the log” during trial and then seek DNA tests later to prolong his life.

 

“Skinner’s transparently false claims of innocence do a grave disservice to the truly innocent prisoners who sit behind bars, who are less likely to be believed when inmates such as Skinner demand post-conviction DNA testing as a means of subverting capital punishment and delaying their eventual execution date,” state lawyers wrote in their March brief to the appeals court. “The State of Texas would never oppose the efforts of a wrongfully convicted inmate to clear his name and vindicate his innocence in court.”

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