“In District Attorney's Office for the 3rd Judicial District v. Osborne, last year's case, Justice Alito argued in a concurring opinion that guilty people could refuse to request DNA testing at trial, then prolong the appeal process (and stave off execution) by requesting DNA testing afterward. To find a right to post-conviction testing in the Constitution's protection of due process, Justice Samuel Alito wrote in his concurrence, ‘would allow prisoners to play games with the criminal justice system.’"
—Radley Balko, “Certain Knowledge” Why all crime-scene evidence should be DNA tested,” Radley Balko, in Slate
The case that the article is about is not Osborne, a case from Alaska, but one from Texas, and Balko was writing about it because the person requesting the DNA, Henry "Hank" Skinner, testing was 47 minutes away from execution last March when Justice Antonin Scalia gave him a last-minute stay and because the Supreme Court last month agreed to hear Skinner's case in the fall. Apparently with Scalia’s vote to hear the case.
Skinner is asking for access to crime-scene evidence and DNA testing that he and his lawyers say will prove his innocence. In Skinner’s case, it appears that it was the police investigators, the prosecution, the judge, the judge’s attorney buddy, and the governor who gamed the criminal justice system. Balko explains:
Skinner doesn't dispute that he was in the house when his girlfriend and her sons were murdered. He claims he was unconscious at the time, knocked out by a near-lethal mix of alcohol and codeine. Back in 1995, the evidence against him seemed formidable. He was present at the crime scene. He had smears of blood from two of the three victims on his shirt. Andrea Reed, Skinner's neighbor and ex-girlfriend, says Skinner came to her home shortly after the crime and first implicated himself, then told Reed a number of other implausible and contradictory stories about who committed the murders.
But Skinner has always maintained his innocence. In 1999, Northwestern University's Medill Innocence Project began looking into Skinner's conviction. As professor David Protess and his student journalists began interviewing witnesses and reviewing evidence, the state's case against Skinner started to unravel. Reed recanted her testimony and now says she was pressured by police investigators to implicate Skinner. Toxicology reports showed the amount of codeine and alcohol in Skinner's blood at the time of the murders would have likely have rendered him unconscious or put him in a hazy stupor. His defenders say he couldn't have killed three adults in that condition. The students also found that Busby had been stalked by an allegedly lecherous uncle named Robert Donnell, whom witnesses said had approached her at a party the night of her death. She left frightened, and he appeared to have followed her. Friends say Donnell had raped Busby in the recent past. Days after the murders, a neighbor saw Donnell cleaning and repainting his truck.
There are other problems with Skinner's conviction. His court-appointed attorney, Harold Lee Comer, was a disgraced former prosecutor who left office after pleading guilty to siphoning off asset forfeiture funds in a drug case. The judge, a friend of Comer's, appointed him to represent Skinner, then ordered Comer's pay in an amount roughly equal to what Comer still owed for his own criminal conduct. Worse, Comer had previously prosecuted Skinner on a minor assault and theft charge. At Skinner's sentencing trial, the prosecution argued that those two crimes were aggravating factors that should be considered in Skinner's sentencing. Comer didn't object.
Most of these flaws have been litigated, and the courts have found that none of them is enough to win Skinner a new trial. But the most troubling aspect of Skinner's case is the biological material collected from the crime scene. Law enforcement officials tested the small blood smears on Skinner's shirt, and those matched two of the three victims. But given that Skinner admits he was at the crime scene and says he awoke to find the victims' bodies, it isn't surprising that he'd have some of their blood on his shirt. The blood on the murder weapons has never been DNA tested. Nor has any material from the rape kit taken from Busby. The state also never tested skin cells taken from under Busby's fingernails, or a blood-stained windbreaker left at the scene that witnesses say matched one often worn by Donnell. "They only tested the material they thought would implicate Skinner," Protess told me via phone. "They fixated on their suspect, and once they thought they had enough for a conviction, they stopped."
But, as Balko says, that is not even the worst of it:
In 2000, on an episode of the Nancy Grace Show, Protess publicly challenged Skinner's prosecutor to test the remaining biological evidence, even offering to pay for the testing himself. "He agreed, and I actually sent him an e-mail complimenting him," Protess says. But when mitochondrial DNA testing of the hair Busby was clutching in her hand at the time of her death didn't match Busby or Skinner, the state halted the testing of any more evidence and has refused to run any tests since. As Skinner's execution neared in March, Texas Gov. Perry again declined to grant Skinner a stay so the evidence could be tested, even after a lab in Arizona offered to conduct the tests for free. Never mind that all of this comes amid continuing controversy over Texas' 2004 execution of Cameron Todd Willingham, a man many believe was innocent, as well as allegations that Texas Gov. Rick Perry subsequently undermined an investigation into the dubious forensic evidence used at Willingham's trial.
So I look forward to reading Justice Alito’s expressions of outrage when the Court decides Skinner’s case.
Will Alito suggest that the police investigator’s apparent subornation of perjury, the recent halting by the prosecutor of DNA testing of further evidence once DNA testing of a hair sample showed that the hair belonged to someone other than Skinner or the victim, and Perry’s failure to stay the execution so that the further DNA testing could be compelled by a court, amount playing Russian Roulette with the criminal justice system and with the state’s power to execute, for the purpose of political gain? I wait with bated breath to see.
And what about the allegations that Perry undermined an investigation into dubious forensic evidence—read: faked evidence—after another controversial execution?