Will Texas Execute Man, Despite Untested Evidence?

• by Michael J. Carter (seattle)
• Tuesday, November 29, 2011
• Inter Press Service

Could it be that innocent people have been mistakenly killed?

'There are a lot of cases with a lot of doubts,' Rob Owen, an attorney specialising in capital punishment, told IPS. 'It would be foolhardy to say we've never executed an innocent person given the amount of exonerations.'

In Texas, where 12 people have been exonerated, Owen is trying to prevent the execution of his client Hank Skinner, 49, on death row since 1995 for a triple homicide in Pampa, Texas.

Critical DNA evidence that could potentially either exonerate him or confirm his guilt remains untested, and previous motions to access it for forensic testing have all been denied.

The prosecution previously maintained that since Skinner's original court-appointed attorney chose to forgo DNA testing out of fear it would incriminate his client, Skinner is not entitled to further access.

The Gray County District Attorney's office declined to comment to IPS.

Although a new state law took effect Sep. 1 that cleared hurdles for post-conviction DNA testing, in early November, the trial court judge denied Skinner's most recent appeal without explanation. On Nov. 7, two days before he was scheduled to die, the Texas Court of Criminal Appeals ordered a stay on the execution, pending a review of the recent ruling.

The stay was Skinner's second near miss. In March 2010, he came within an hour of execution until the Supreme Court intervened to consider judicial review, which was ultimately declined.

According to Owen, the case could have been decided over a decade ago. Post-conviction forensic testing of the evidence, which includes a rape kit, fingernail clippings from one of the victims, two knives and a windbreaker covered with hair and blood, was first requested in 2000.

Other doubts regarding Skinner's guilt emerged when a key witness for the prosecution recanted parts of her testimony.

'(The prosecution) is so committed to the idea that he's guilty that they haven't kept an open mind, and are unwilling to take another look at the evidence,' said Owen.

Richard Dieter, executive director of the Death Penalty Information Centre, feels the prosecution has grown frustrated by the challenges and delays in Skinner's case.

'Only about 15 percent of people sentenced to death are executed,' he told IPS, calling the recent ruling that denied Skinner access to forensic testing 'sloppy work by the judge'. Dieter expected the judge to be required to elaborate on his decision by the court of criminal appeals. Owens expects the appellate decision by late spring or early summer.

'All the district attorney (has) got to do is turn over the evidence, test it and let the chips fall where they may,' Skinner said in an interview with CNN last year. 'If I'm innocent I go home. If I'm guilty I die.'

To date, 17 people have been exonerated from death row as a result of post-conviction DNA testing.

Innocent until proven guilty?

The issue remains whether the state should proceed with executions in cases with ambiguity and risk wrongful executions of the innocent.

In January 2000, George Ryan, then-governor of Illinois, issued a moratorium on all executions after the state's 13th death row exoneration, which surpassed its total number of executions since 1976.

Before leaving office in 2003, Ryan commuted all death sentences to life in prison. This year, Illinois became the 16th state to abolish the death penalty.

'If the system can't be guaranteed 100 percent error-free, then we shouldn't have the system,' Pat Quinn, the current governor, said. 'It cannot stand.'

Illinois, with 20 exonerations, is surpassed only by Florida, with 26.

Numerous factors hamper state justice systems, leading to wrongful conviction. They range from witness misidentification and improper forensic science to false confessions and unreliable informants, according to the Innocence Project, an organisation dedicated to exonerating innocent individuals through DNA testing.

Other, less quantifiable issues such as ineffectual court-appointed defence lawyers and prosecutorial and police misconduct and racism, also play a part in wrongful conviction.

Owen believes Skinner's case was a compounded by poor representation and what he described as 'tunnel vision' with law enforcement and prosecutors.

'There's a tendency to narrow the focus to that one suspect,' he said. 'It's a premature selection that screens out other suspects. They become so persuaded that they can't see the possibilities that he (Skinner) isn't guilty.'

'There's a lot of pressure to get a suspect,' Dieter said. 'You can't present a gray case to a jury. Prosecutors become adversaries for their side instead of their proper role of upholding justice and the law.'

In Texas, the issue of innocence has been highlighted again with new findings in the case of Cameron Todd Willingham, executed in 2004 for the arson deaths of his three daughters. The Texas Forensic Science Commission recently closed its inquiry into the case that was fraught with unreliable forensic science.

The state district attorney informed the commission that it had no jurisdiction in making a ruling on the case. The Innocence Project, which worked together with fire experts, concluded that Willingham was wrongfully charged and innocent of setting the fire for which he was executed.

In 2002, capital punishment was ruled unconstitutional on the basis it violated the right to due process by posing a substantial risk of executing innocent defendants. That ruling was later overruled in circuit court and the U.S. Supreme Court declined to review the case.

As for the pending ruling in Skinner's case, Owen remains hopeful that access will be granted to untested DNA evidence. If it is not, he is prepared to pursue a lawsuit against the district attorney for access, and if necessary he can appeal to Governor Rick Perry.

The death penalty has been in the spotlight with the highly controversial case of Troy Davis, who was executed in September despite the fact that seven of nine witnesses against him recanted their testimony, and other factors caused doubts about his guilt.

© Inter Press Service (2011) — All Rights ReservedOriginal source: Inter Press Service

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