Is Governor Perry About to Mess Up Another Death Penalty Case?

Texas Inmate Scheduled to Die Despite Untested DNA Evidence

This past summer Governor Rick Perry of Texas signed into law a simple measure that would require the state to test DNA evidence if it is available.  But as Governor Perry struggles on the Republican presidential campaign trail, he has thus far denied Hank Skinner, a death row inmate, a DNA test that has the potential to prove his innocence, or at leats remove any doubt as to his guilt.

Mr. Skinner was convicted of murdering his girlfriend and her two adult sons in 1995.  Defenders argue that Mr. Skinner was too inebriated to have been capable of the crimes.  They point to evidence that is largely circumstantial, and his defense attorneys believe that his uncle was the actual perpetrator.

An appellate court rejected his application for DNA testing on the blood taken from the murder scene, saying state law prohibits post-conviction test unless “a reasonable probability exists that DNA tests would prove the prisoner’s innocence.”

As one commentator writes, “In other words, Skinner needs to basically prove he is innocent before he can have the murder weapon tested, which he says will prove he’s innocent. That makes sense, then.”

DNA testing was apparently available at the time of his trial, but his attorney decided against it, apparently in fear that DNA would probably show up on some of the items since he lived in the home where the murder occurred.

Many officials and former officials have called on Texas to do the testing.

“Executing Mr. Skinner without testing all the relevant evidence would suggest official indifference to the possibility of error in this case and needlessly undermine public confidence in Texas’s criminal justice system,” said a letter from former Texas Gov. Mark White, along with 16 other current and former Texas lawmakers.

In a 2009 televised interview, Mr. Skinner told CNN, “All the district attorney has got to do is turn over the evidence and test it, and let the chips fall where they may.”

“We are deeply disappointed that the trial court has denied Mr. Skinner’s request for DNA testing,” Rob Owen, Skinner’s attorney, said in a statement. “Unfortunately, the trial court’s order offers no explanation for its conclusion that DNA testing is not called for in this case.”

As Mother Jones magazine noted, in June of 2000, then-Texas Governor George W. Bush was running for the presidency.  He was faced with a similar decision regarding Ricky McGinn, a death row inmate seeking DNA testing of forensic evidence he claimed might exonerate him.

At the time, Governor Bush said, “Any time DNA evidence can be used in its context and be relevant as to the guilt or innocence of a person on death row, we need to use it.”

Indeed, that would seem to be the basis for the state law that Mr. Perry himself signed into law four months ago.

Mr. Bush made the decision to delay the execution to allow for DNA testing to see if it exonerated the inmate. It did not, and Mr. McGinn was executed several months later.

Wrote Mother Jones, “Texas governor and presidential candidate Rick Perry faces an almost identical decision with the case of Hank Skinner – the main difference being a greater likelihood that Skinner might actually be innocent of the crime for which he has been sentenced to death.”

However, they acknowledge that odds of getting the chance to show whether or not DNA would exonerate him from the Governor Perry administration looks bleak.

National Public Radio reports that Governor Perry has the power to grant a one-month stay.

“It’s often said the Texas governor ‘presides’ over an execution, but that’s inaccurate. He doesn’t sign a death warrant or set an execution date, as in some states. In Texas, the only absolute power the governor has is to grant a single 30-day stay of execution.”

The Nation points out there may be reasons why Texas would be reluctant to test.

They write, “Texas was not always so reluctant to do DNA testing. According to his 30-year-old daughter, Natalie, the state began testing on hairs found at the scene years ago – including of one found clutched in Busby’s hand. The first tests came back inconclusive, and the state pushed forward. But when the hair was found not to match Skinner – results suggested it belonged to a maternal relation of Busby’s – the state ceased all testing. That was in 2000. Since then, no additional testing of any of the remaining evidence has taken place.”

“As soon as that result came back, they shut it down and have refused any more testing,” said Natalie Skinner.

The Innocence Project took up this case in 1999, and uncovered “additional complicating evidence, including statements from a key witness who recanted statements implicating Skinner, as well as a potential alternative suspect, an uncle who had reportedly stalked – and some say sexually assaulted – Busby in the past. That man, Robert Donnell, died in 1997.”

The issue again comes back to Governor Rick Perry.  Wrote the New York Times on October 30, “In campaigning for the Republican presidential nomination, Mr. Perry has vigorously defended the executions on his watch: 236 over nearly 11 years. But because the governor of Texas does not play a firsthand role in the capital punishment system, he bears direct responsibility for only a few of those executions.”

They continue, “To critics here, Mr. Perry’s denial of a rare offer of mercy by his board indicates that he is excessively zealous about what he has called ‘the ultimate justice in the state of Texas.’ “

At the same time, the New York Times, in examining his overall record on crime, finds it to be “more mixed than his tough stance on the death penalty might suggest.”

They argue, “Mr. Perry has not been a crusader, but he has signed reform-minded legislation and acknowledged some of the system’s mistakes, once referring to an exonerated prisoner’s murder conviction as a ‘great miscarriage of justice.’ “

“He has done more good than any other governor we’ve ever had,” said Jeff L. Blackburn, chief counsel of the Innocence Project of Texas. “He approaches criminal justice issues like a lay person rather than like a prosecutor or judge, which makes him open-minded and willing to embarrass the system. Unless, of course, it involves the death penalty.

“On the death penalty, Rick Perry has a profound mental block,” Mr. Blackburn continued. “The death penalty is part of our fine state’s religion; it’s somewhere up there with football. To oppose or weaken it would be like playing with dynamite, and Rick Perry, a quintessentially political person, is not going to blow himself up.”

Supporters of the death penalty need to recognize that cases like this are going to destroy the death penalty in this country.  Just as in the case of Troy Davis, each execution that occurs with doubts will invariably undermine the death penalty.

And in this case, what is the point?  The DNA test is merely $550, the delay would be a few months, so remove all doubt if you can.  Seems like a no-brainer to me.

—David M. Greenwald reporting

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