- The Washington Times - Wednesday, October 13, 2010

The Supreme Court on Wednesday heard arguments in the case of a Texas death row inmate who says the state has, but refuses to test, DNA evidence that could prove his innocence.

Hank Skinner, convicted in 1995 of killing his girlfriend and her two adult sons, was less than an hour from execution last year when the high court agreed to hear his case. He claims the state of Texas violated his civil rights by refusing to test the evidence.

In taking the case, the Supreme Court is continuing its work in shaping the way in which convictions called into question because of new scientific evidence should be handled.

Skinner’s case is particularly challenging because his lawyer at trial had access to the evidence in question, but chose not to have it tested. The state argues this was an “informed, strategic decision” that set up the defense strategy that the failure of the state to test all the evidence was indicative a shoddy investigation.

The strategy failed and Skinner was convicted of fatally stabbing Twila Busby and her two developmentally disabled sons, Elwin Caler and Randy Busby.

Skinner has maintained his innocence, claiming he was not physically able to have committed the murders because of a hand injury and being too drunk and high on codeine at the time.

His lawyers have suggested that the actual killer is Ms. Busby’s uncle.

The defense wants to test additional evidence that could determine whether Ms. Busby was sexually assaulted and, if so, by whom. They also want testing done on two knives that his lawyers say were likely used to kill the two sons.

State courts in Texas have rejected Skinner’s request, ruling his case doesn’t meet the requirements of the state’s laws regarding post-conviction DNA testing.

Skinner’s lawyers say that’s a violation of his constitutional rights and want the federal courts to require testing of the evidence. The state counters that Skinner wants to create a system in which federal courts serve “as appellate tribunals second-guessing the decisions of state courts.”

The justices Wednesday seemed concerned about that possibility as Justice Antonin Scalia noted, “You had the opportunity to raise this in the state court, and now you are retrying what the state court did decide.”

Justice Sonia Sotomayor was particularly sharp in her questioning of Skinner’s lawyer, Robert C. Owen.

“Mr. Owen, I know I am pushing you,” she said at one point, “but I really would like a clear statement of what the procedural due-process violation which you are claiming occurred here is?”

“Your Honor, our claim is that in its construction of the statute in the Texas Court of Criminal Appeals [the court] construed the statute to completely foreclose any prisoner who could have sought DNA testing prior to trial but did not from seeking testing under the post-conviction statute,” he said. “That speaks too broadly.”

While the justices expressed some skepticism of Mr. Owen’s argument and the role of federal courts in the case, they also appeared cautious not to dismiss Skinner’s claims out of hand.

“We’ve never had a case like this and it’s conceivable to me that we have to expand [on previous rulings],” Justice Scalia said.

• Ben Conery can be reached at bconery@washingtontimes.com.

Copyright © 2023 The Washington Times, LLC. Click here for reprint permission.

Please read our comment policy before commenting.

Click to Read More and View Comments

Click to Hide