Book Review, 31 Mar 2010

When a little-known book first shows up on Amazon, it's a bit like a teenage boy: gangly, awkward, and immature. The "Editorial Review" section is empty or poorly populated. The "Look Inside" feature is not working. The tie-in between the print and Kindle editions is not yet recognized. There are no "other" books which have been viewed by the same people who viewed "this" book. Amazon does not yet offer the hefty discount.

It takes time for these things to work themselves out. Anxious parents must be patient.

Initially, there are no reviews by readers. A bit later, the first reviews begin to trickle in. If the book is controversial, the initial reviews will be from proponents of one side or the other. The first reviews of our book were from a friend of the defendant's family (5 Stars), someone associated with the victim's family (1 Star), one of our early readers (5 Stars), and someone we suspect is a friend of a friend of the defendant (5 Stars).

We recently received the first review from someone that seems to be completely independent. Since we are partial to our own book, we were of course interested in this initial independent review. It's from someone identifying himself as He Loves to Read "Book Lover". He titled his review "Brilliant!". [Thank you for the exclamation mark.] He gave the book 5 Stars. We repeat his review below.

Having read the other reviews let me disclose that I am not related to anyone involved in this case, including the author, editor or publisher. I also am not an activist. I might be if I had the energy, but let's face it, I don't. I love to read. I read at least a little from a book every day..."The Skeptical Juror, And the Trial of Byron Case" was my latest.

Once I began to read this work I read it very slowly. I found myself wanting to absorb as many of the facts as I could. J. Bennett Allen had created in me a desire to participate in the process I was reading about. The book had a fantastic rhythm that captivated me as I went through the process with the other jurors.

I already knew the results of the jury deliberations (I seem to be using that word very loosely). But I was still shocked at the end of the book. What a terrifying look at our judicial system. This should be required reading for anyone that might serve on a jury. Everyone else should want to read this. It will open your eyes as it did mine.

We certainly appreciate his review. We'll demur, however, on the suggestion that our book should be required reading. We're not particularly big on telling people what to do. (Unfortunately, history suggests that, if we actually had the authority to tell people what to do, we would change our philosophy.)

The reviewer got the book for a song, having purchased the Kindle edition. I purchased a Kindle II for the Skeptical Spouse as a surprise gift just after it came out early last year. I'm not sure she has yet let it out of her sight.

Robert Nelson Drew: An Additional Note

A quick follow-up note on Robert Nelson Drew.  If you check here, you can see the appellate attorneys who prepared Drew's state writ of habeas corpus: Ronald Kuby, William Knustler, Rob Owen and Michael Jackson.

I'm unfamiliar with Michael Jackson the appellate attorney. Kuby and Knustler are famous (some will say infamous) for their high-profile and notorious clientele. You may recognize Knustler in the photo at the right.

Rob Owen, of course, is currently and ably defending Hank Skinner.

Robert Nelson Drew couldn't have asked for a more talented appellate team, and he was as obviously innocent as you can ever hope to find on Texas' death row, absent DNA proof. But it did him no good. Not a whit.

Is this the kind of judicial system we want?

Is it the kind we deserve?

BBC News has a brief but interesting article on the status of the death penalty in Texas.

Robert Nelson Drew

When I decided to review each of the 450 lethal injections in Texas, now 451, I naturally suspected Cameron Todd Willingham, Ernest Cantu, and Carlos DeLuna would be among the cases I studied carefully. They are frequently mentioned as examples of people who may have been innocent, though plunged by Texas. 

I had never heard of Robert Nelson Drew.

It's not that no one ever wrote of Robert Nelson Drew. You can read about his case here, here, and here. Also here and here. Drew just somehow never made it to the Pantheon of likely innocents convicted by the State. Life passed him by, and now Death turns a deaf ear. Even his transition was punctuated with dismissiveness. The judge who signed his death warrant added a smiley face.  

The "Sincerely" was also a nice touch.

How Did You Spend Your College Days?

The Daily Northwestern has a good article on the students who helped save Hank Skinner's life, at least for the moment. The story also discusses the county's effort to have the students reveal their grades, notes, and other goodies.

The newspaper is a college paper associated with Northwestern University, as is the Medill Innocence project, as are the students who researched and reported on the Skinner case.  The newspaper may have a bias. Before relying on what they write, or what I write, I invite you to prowl the internet for competing points of view and decide matters for yourself.

Interesting Links, 29 Mar 2010

Outlaw hedgehogs and only outlaws will have hedgehogs.

Hedgehog weapons being manufactured en masse.

Echidna: n. An Australian's weapon of choice.

Now for Another Cosmic Moment

Back in 1997, the Skeptical Spouse and I drove out to Palm Desert to get a good look at comet Hale Bopp. We drove up into the hills on some dirt roads to get a bit further away from the lights. We stopped for a moment and, from out of the dark, our car was suddenty and maliciously attacked by a big Cujo like dog, who was wagging his tail. "Don't open the door!" she said. "Don't worry about that," he replied.

We moved to another spot, well away from the first. We stared at the comet from inside the car, given that there must have been dozens of Cujo like dogs just waiting for comet watchers who might put their guard down for just that one fatal second.

What was most impressive about the comet was not its brightness, because it certainly wasn't bright enough to illuminate cunning predators. Nope, it wasn't the brightness that was so impressive. It was the extent. If you didn't look directly at the comet, if you used your peripheral vision (as you are supposed to do at night), the comet and its tail together seemed to span the windshield.

There may be a legal moment of cosmic magnitude unfolding before us. Allow me to get you up to speed quickly, as if it's the beginning of another episode of "24".

Interesting Links, 28 Mar 2010

Kittens riding the roomba.
 

Best murder song of all time.  First two minutes, mandatory listening.


To protect and serve in Seattle. I admit I don't have both sides of the story. Maybe she deserved it.

Meet David Protess

David Protess is one of the early advocates for Hank Skinner.

Protess teaches an investigative journalism class at Northwestern University. As part of that class, his students are assigned a crime to investigate. The investigations are sometimes so complex and so thorough that they pass from one class to the next. Should the students' journalistic investigation indicate that an innocent person is being prosecuted, has already been convicted, or faces execution, their work is turned over to the Medill Innocence Project to allow the case to be pursued through the court system.

Not coincidently, David Protess is founder and director of the Medill Innocence Project. That project too is associated with Northwestern University. Protess has long realized the propriety and wisdom of creating a strict division between teaching investigative journalism and pursuing legal cases to assist those wrongfully accused or convicted.  More on that in a moment.

Video Clip of Sadrine

From Larry King Live

Interesting Links, 27 March 2010

Some guy riding on the back of a giant housefly.

Super criminals in action.

Gives me a case of the willies just to look. He has a helmet on, so he'll be okay.

Some probably innocent people who have been executed. Check out the paragraph acknowleging those who have tried to make a difference, near the beginning of the third line. It's Rob Owen.

What Others are Saying: 27 Mar 2010

There's a nice article about A Wife's Undying Love For Her Man on Death Row on Inquirer.net. I wrote of the same person recently in Meet Sandrine Ageorges-Skinner. A couple of take-away quotes from the Inquirer article:

Texas is my second home. ... It is a state that I love a lot and I have met a lot of extraordinary people here.

The only time when I will be able to touch him is after his execution, at the funeral – a day I hope never comes. ... It won't change anything. ... Whatever happens, we will always be together. Death is not an end in itself.

Impressed yet?

Meet Rob Owen

Rob Owen is Hank Skinner's attorney. Hank Skinner owes his life to Rob. 

Rob has now twice pulled a last-minute rabbit from a hat. Previously, Rob managed to delay Hank's execution by finding a clerical error in the death warrant. I wrote about that briefly in The Wisdom of a Clerical Error. That gave Rob time, and just barely, to extract the second rabbit.

Interesting Links, 26 Mar 2010

Want to see what a convicted forger does to kill time while in prison?  Of course you do. It's pretty amazing.

Want to see the easy life of a housewife in 2000, as predicted by Popular Mechanics in 1954? Of course you do. It's pretty funny.

Want to make people confess? Want to resist confessing to a crime you didn't commit? Of course you do. It's pretty unsettling.

Meet Sandrine Ageorges-Skinner

I don't claim to know Sandrine Ageorges-Skinner. I have never met her. We have communicated only in a pair of very brief emails. I am, however, aware of her cogent and unfettered defense of her husband. I figure it appropriate, therefore, that you learn of her through her words.  First, I submit  for your consideration the biographical portion of a letter she sent to the Texas Board of Pardons and Paroles.

My name is Sandrine Ageorges-Skinner, I am a 49-year old French national. I am a freelance production manager working for the film industry on feature films, commercials and documentaries. My work experience has given me the opportunity to work on numerous pictures for major studios in Hollywood over the past 21 years. I am the mother of a 22-year old daughter who is currently in Medical School in Paris, France.

Good Morning, Hank Skinner

As Hank Skinner was being served his last meal, less than an hour before his last breath, the Supreme Court granted a stay of execution, or what is effectively a stay. I'll not fret the semantics at this point. I'm just pleased to be able to wish Hank Skinner a good morning.

The order is so brief, I'll include the body of that order in its entirety below.

The application for stay of execution of sentence of death presented to Justice Scalia and by him referred to the Court is granted pending disposition of the petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.

Supreme Court Down to the Wire

Hank isn't going to die today!!

Less than an hour before Hank Skinner was due in the death chamber, the US Supreme Court issued an order to delay his execution. Read the order here.

More later. Standing in for The Skeptical Juror, the very relieved Skeptical Spouse and Skeptical Niece.

Godspeed, Hank Skinner

Today, untold numbers of innocent people will die at the hands of another human being. It's called homicide. 

A few of those people will begin the day knowing it will be their last. Hank Skinner is likely to be one of the unfortunate few. If Texas executes him today, as now seems likely, the cause of death will be recorded as "homicide."

The discomfort one feels about any of the many homicides that will occur today is related to how close one is to the victim. As I've worked uncounted hours on the Hank Skinner case these last two months, I've tried to focus on the case, not the person. There's a pragmatic but selfish reason for this. It hurts too much if you get too close.

At a Glance

Texas Board of Pardons and Paroles has just voted 7-0 against granting Hank Skinner a reprieve, and 7-0 against granting him clemency. The Board admittedly focuses on the process rather than on the facts of the cases it considers. It's one reason why Texas' rate of exonerations from death row is less than one-fifth that of the rest of the country. It's a measley 2.4% for Texas compared to 14% for the rest of the country.

Along that line, Part III of my series "In Search of the 54" is now up. We are compiling and intend to make public the most comprehensive and well-documented list of innocent people executed by Texas. So far, it's looking like that list will include dozens of names. When Rick Perry decides it is time to run for President, we intend to be there to remind everyone of his role in the killing those innocent people he should have instead been protecting.

With respect to their determination to execute Hank Skinner, the Texas authorities are further alienating themselves from their own citizenry, and from that of the rest of the country.

The Austin American-Statesman, the Dallas Morning News, the Houston Chronicle,  San Antonio Express News, Fort Worth Star Telegram, and (amazingly) the Los Angeles Times, join the chorus of those asking Texas and Governor Perry to test the DNA before executing Hank Skinner.

On Saturday, March 20, seven death row exonerees added their voices to the chorus of those asking Texas and Governor Perry to test the DNA before executing Hank Skinner.

On Saturday, March 20, The Huffington Post has added its voice to the chorus of those asking Texas and Governor Perry to test the DNA before executing Hank Skinner. For evidence of that, follow a few of the links below.

On March 17, a DNA testing firm has offered to test the Skinner DNA evidence for free. Good for them!

On March 14, The Innocence Project used the front page of its website to bring attention to the editorial just mentioned.

On March 12,  Barry Scheck, State Senator Rodney Ellis and Cory Session called on Governor Rick Perry to test the DNA prior to executing Hank Skinner. The editorial can be viewed in the online version of the Dallas Morning News.

On March 9, former DA Sam Millsap called on Governor Rick Perry to test the DNA prior to executing Hank Skinner. He speaks from painful experience, having prosecuted Ruben Cantu for capital murder, and having since concluded that Ruben may have been innocent. Ruben Cantu was executed by Texas in 1993.

On March 2, we declared Hank Skinner to be factually exonerated.

Our ten part series on Hank Skinner begins here.

In Search of the 54: Part III

Time for an update on this effort.  Previously, I calculated that Texas may have executed 54 innocent people, plus or minus a statistical margin. That's an outrageous number to be sure, but that's what my analysis said. 

If my calculated number is anywhere close to being correct, it should be possible to identify a large number of people executed by Texas who were "probably innocent." I'll concede up front that it's unlikely I'll prove any one of them "absolutely innocent" to everyone's satisfaction. I'll not let that impossible standard thwart my effort.

So far I have identified 61 cases (out of 451) worthy of further review. Many of those will not end up on my "probably innocent" list, but most of them may. At this point, I'm guessing that there will be dozens on that list. For me, it is no longer an issue of whether this particular person was actually innocent, or that  particular person, or both of them. For me, it no longer seems to be an issue of onesies or twosies. It's now an issue of how many dozen innocent people Texas has executed.

Allow me to describe how I am proceeding.

I noted in the original post that this effort would be a massive undertaking, and that I would probably need a fair amount of help. As it turns out, I was correct. The good news is that I discovered others have travelled this path before me. Though no single person or organization has (best I can determined) reviewed all 451 cases, most of the cases have been documented or summarized in various legal documents, newspapers, and web sites.

One site of particular note is the Texas Execution Information Center. It's run by a gentleman named David Carson. He provides an objective summary of each execution in Texas back to 1999. He explains his purpose on his home page:

This site is about executions, not capital punishment. That is, this site deals with specific cases, rather than overall conclusions and arguments. This is not a place to find opinions about capital punishment -- whether it is moral, whether it is cruel, whether it is fairly applied, whether it is a deterrent -- etc. We do hope that it will be used as a resource from which informed opinions will be built. We believe that the best opinions are those that are founded on accurate information. Sometimes, the information you find here will bolster your opinion of capital punishment, and sometimes, it will challenge it. In either case, we are doing our job.

Good for him.

I greatly appreciate all the work he has already put in so that researchers such as myself can benefit. There are other sources of information which have also been of substantial help, but I found none of them as objective and thorough as David's.  I'm sad that his site covers only half of those cases I seek to review.

I intend to make two passes through the cases. In the first pass, mostly complete, I will flag most executions as unworthy of futher review. I will flag the remaining of being worth further review. Right now, as mentioned above, I have identified 61 as being worthy of further review. That number will grow only slightly as I finish the first pass.

I'll list first some elements of a case which are sure to exclude it from further review:

• The defendant confessed soon before his execution. Since Texas provides the last statement of most everyone executed, that task is relatively straightforward. Still, I have spent many long hours working through them all. I'm surprised by how many offenders 'fess up at the last moment. I estimate that this criterion will exclude around 100 cases from further review.
• The person admitted he was involved in the crime, but claims he didn't actually commit the murder. Not good enough for me. Those cases are out, in pretty large numbers.
• The person admitted to killing the victim, but did so because of a hair-trigger on the gun, or an amourous homosexual advance, or drunkenness, or mental incapacity. None of that matters. In my accounting, for this purpose, if the defendant killed the victim, the case is excluded.
• I simply can't round up any information. These cases frustrate me and take up lots of my time. Unfortunately, I can't declare someone "probably innocent" without some data to back up the claim.

Now for some elements that attract my attention, none of which is sufficent by itself to justify a more thorough review.

• The defendant maintained his innocence from the beginning to the end. It's surprising how few people use their last words to proclaim their innocence. Most tell their family members they love them, that things will be okay, that they will be with Jesus soon. A quarter of them admit their guilt. A tenth of them proclaim their innocence.
• The conviction was weak on foresnic evidence.
• The conviction relied heavily on eyewitness testimony. Though most people consider eyewitness testimony to be the gold standard, it has been proven time and time again to be the weakest testimony. The Innocence Project concludes that incorrect eyewitness testimony has been a major factor in more than 70% of the DNA exonerations so far.
• The conviction relied heavily on the testimony of someone saving himself by selling out the defendant. This includes alleged accomplice testimony as well as jailhouse snitches. I hate jailhouse snitches. When I see the prosecutor planted multiple jailhouse snitches near the defendant's cell because he couldn't make the case otherwise, the claxons go off.
• The conviction relied heavily on an early confession, soon recanted. If the interrogation was videotaped, and the videotape shows no coercion or manipulation, then the confession counts. Interrogations are easy to record. When not recorded, I suspect shennaigans.
• Incompetent representation. I'm not talking about the wrong legal maneuver here or there. I'm talking about completely worthless attorneys such as the clown assigned to Hank Skinner. Most counties in Texas do not have a public defender system. The judge picks the private attorney who will represent the indigent defendants. The judge picks the attorney for his own reasons, not the least  of them being low cost and the speed with which the judge can clear his docket. Competent attorneys meet neither criteria. They only slow things down, and time is money. In future parts of this series, you will learn of gruesome stories sadder than you can imagine.

Once I've finished my first pass, I will make a second pass through only those cases I've marked for further review. During this second pass, I will be more thorough and more skeptical in my review. I will attempt to weigh the case against a set of objective standards, which means only that I'll do my best to make a reasonable, objective decision. Then I'll announce how many "probably innocent" people have been executed by Texas.

As a teaser, in the next part, I'll detail two cases. I'll let you decide which defendant is "probably innocent" and which is "no way innocent."

Stay tuned.

Bloody Texas

While reviewing each of the 451 executions in Texas since 1976, I stumbled across some evidence I believe has substantial bearing on Hank Skinner’s case. It relates to the State’s position on the significance of a high blood alcohol level.

In the trial of Texas v. Granville Riddle, November 1989, the defense claimed self defense. Texas pointed out the victim had a blood alcohol level of 0.29 and was therefore incapable of mounting an attack. Granville Riddle was convicted and executed.

In the trial of Texas v. James Moreland, July 1983, the defense claimed self defense. Texas pointed out that one victim had a blood alcohol level of 0.24, the other had a blood alcohol level of 0.19, and that both must have been sleeping at the time they were killed. James Moreland was convicted and executed.

In the trial of Texas v. Hank Skinner, March 1995, the defense introduced evidence that Hank Skinner had a blood alcohol content of 0.24 plus a codeine level three times the normal medicinal value. They argued further that the alcohol and codeine were synergistic, their combined effect being worse than the sum of their individual effects. The defense then argued, just as Texas had three times earlier, that such a high blood alcohol content would render a person incapable of aggressive action.

Texas did not dispute the toxicology evidence. Instead they simply pooh-poohed it. Skinner was a heavy drinker they claimed (supposedly unlike the three people just mentioned with similar alcohol levels) and was therefore insensitive to alcohol. Hank Skinner was convicted and will soon be executed.

This seems to be just more evidence that Texas does not really care if Hank Skinner is factually innocent. They did a 180 on the significance of a 0.24 blood alcohol level, with nothing more than the flick of a wrist. Though they acknowledge that the hand print on the trash bag, the one holding the bloody knife and dish towel, was not left there by Skinner, they refuse to run that print through their fingerprint data base. It would take but a few minutes, but still they refuse.

They lied about and then ignored the post-conviction DNA test results they requested. They treat as insignificant the hair found clutched in Twila Busby’s dead hand, a hair they themselves claimed came from the killer, a hair now proven not to have come from Hank Skinner.

They hide the DNA results from the rape kit and broken fingernail clippings they sent out for testing.

They refuse to release the murder weapons for DNA testing, even though others have volunteered to cover the cost.

They refuse to release the foreign windbreaker for DNA testing, though it is a gold mine of hairs, blood, and sweat samples.

The State of Texas will probably execute Hank Skinner as scheduled, but Hank Skinner will not go away. He will join the growing list of people probably innocent but certainly executed by Texas. Texas and Governor Rick Perry will execute him despite the many cogent cautions they have been given. 

It will be a dark day indeed for Texas.

I do not think Hank Skinner's execution will prevent Rick Perry from being re-elected governor. I do predict, however, that it will thwart him during the next logical step of his political career.

In Search of the 54: Part II

It's been a few days since my claim that I was going to review all 450 Texas executions since 1976 in search of others who might have been factually innocent.  Plenty to report on that issue, and I'll do that before too long. Right now I would like to mention something I found in one particular case.

The case is Texas vs. Granville Riddle. Riddle was convicted of murdering Ronnie Bennett by bludgeoning him with a tire iron. During the trial, Riddle claimed that Bennett made homosexual advances towards him, so he hit Bennett in the knee with the tire iron to ward off the advances. Because Bennett persisted, Riddle hit him in the head with the tire iron, and thereby unintentionally killed him.

Because of details I haven't included here, I consider this case a slam dunk for Texas. On my 0  to 10 scale of being worthy for further review, I scored this one a zero. What I found worth mentioning here was the manner in which Texas refuted Riddle's claim that he acted in self-defense. The State of Texas pointed out that the victim had a blood alcohol level of 0.29, and argued that level would have rendered him unconscious.

Seems reasonable to me.

The Granville Riddle trial was in 1989. In 1995 the State of Texas argued that the 5'9" Hank Skinner was capable of killing Twila Busby and her two hulking sons despite having a blood alcohol level of 0.24. I realize that 0.24 is less than 0.29, but Hank's condition was further aggravated by a triple load of codeine. The state did not dispute the toxicology, they merely claimed that Hank was insensitive to alcohol.

Seems unreasonable.

If Ronnie Bennett had a blood alcohol level of 0.24 coupled with a triple codeine level, I have little doubt Texas would still have argued Bennett was unconscious and incapable of any aggressive action. And had Hank Skinner's blood alcohol level been 0.29 unaggravated by any codeine, I have little doubt they would still have argued he was unimpeded by alcohol as he killed the three people.

In Texas, the significance of any particular blood alcohol level is variable, depending on whether it helps or hinders obtaining a conviction in a capital murder case. 

ADDENDUM

I've run across a second case of interest: Texas v. James Moreland.  Moreland was convicted of stabbing two men to death, the first because of amorous advances which seemed to be leading homosexual rape, and the second  because the guy startled him. Texas rebutted Moreland's defense by pointing out that the first guy had a blood alcohol content of 0.19 and the second had a blood alcohol content of 0.24. The medical examiner testified that testing indicated both victims had stopped drinking and had probably fallen asleep from 1½ to 2½ hours before their deaths.

Now we have a case where we have one blood alcohol level equal to that of Hank Skinner, and a second less than that of Hank Skinner, and we have Texas arguing that this was sufficient to cause loss of consciousness.  Also, neither of these two men carried a triple load of codeine in their blood to boot.

Clearly if Hank Skinner had been murdered by (for example only) Robert Donnell, and Donnell had claimed self defense, Texas would have argued that Skinner could not possibly have attacked anyone, since his 0.24 blood alcohol level would have rendered him unconscious.

This is getting ridiculous. 

The series continues here.

In Search of the 54

I recently made the outrageous claim that Texas has executed 54 innocent people since 1976, give or take some statistical variation.  I calculated that number using ratios of people exonerated from death row to people executed. That ratio for Texas was a paltry 2.4% compared to 14.1% for the rest of the nation. Assuming Texas juries were no more wise or foolish than the rest of the county, that discrepancy suggests that Texas has executed 54 innocent people, give or take.

I've decided to find the 54.

That sentence was surprisingly easy to write. It's going to be hard as hell to accomplish. I start with an unfortunately large list of 450 people executed. If I were able to round up and evaluate the information on one person per day, it would take me a year and a half. But it will take many, many days per person.

I recognize also, that I will never be able to "prove" any of them to be innocent. I will have to establish some criteria by which I include or exclude people from the list. I will have to be satisfied to allow the list to grow slowly, since I begin with no time to spare for this massive effort. I'll probably have to recruit help. I'll have to be clever.

As I said, it won't be easy. Nonetheless, I've decided to find the 54. I'll keep you posted.

Part II is here.

Part III is here.

Former Texas DA Wants DNA Tested Before Execution

Sam Millsap once was the District Attorney for Bexar County, Texas. Bexar County, for reference, includes the city of San Antonio.  In the March 9, 2010 edition of the Houston Chronicle, Millsap makes his case that the DNA evidence in the Hank Skinner case should be tested prior to Skinner's execution.

We have been trying to make that case for quite a while now. Millsap's experience, however, gives him a unique perspective on the execution of persons possibly innocent. Consider this segment from the article.

Several years ago, this newspaper argued persuasively that Ruben Cantu, a defendant I prosecuted who was put to death in 1993, may well have been innocent. Twenty years after Cantu's trial, my star witness recanted his trial testimony. Many people consider his recantation credible because he had nothing to gain by reversing his position except a whole lot of trouble.

That case brought home to me, in a way that nothing else could have, that the system we trust to determine who may live and who must die simply doesn't work in all cases. Other investigative stories have revealed that Texans Carlos DeLuna, who was executed in 1989, and Cameron Todd Willingham, executed in 2004, were almost certainly innocent.

Now if we can get a few innocence projects to join the call, maybe many will follow. And maybe then Governor Perry will see the wisdom in testing the DNA before executing Hank Skinner.

Hank Skinner Will Be The 55th Innocent Person Executed by Texas

“They told me there would be no math.” -- Chevy Chase as President Gerald Ford on Saturday Night Live, 1975.

Texas is eager to execute, reluctant to exonerate. Since 1976, Texas has executed 450 people. That’s more than a third of all executions from all 50 states combined. On the other hand, Texas has exonerated only 11 people from death row. That means in 2 cases out of every 100, Texas spared a person rather than executing him, usually at the insistence of a state or federal court.

The other forty-nine states have been somewhat less eager to execute but substantially more willing to exonerate. Since 1976, the forty-nine other states have executed a total of 743 people while exonerating 122 from death row. That means in 14 cases out of every 100, the other forty-nine states have spared a person rather than executing him.

Before proceeding to the shocking implication of these numbers, I want to clarify what I mean by the term “exoneration.” Elsewhere, we at The Skeptical Juror Project declared Hank Skinner to be “factually exonerated.” We based our declaration in large measure on post-conviction DNA testing conducted by the State of Texas, and on the significance the State assigned to that testing prior to receiving the results. We used the term “factually exonerated” to indicate Hank Skinner was exonerated by probative facts, even though he has not been legally exonerated by the courts, even though Texas plans still to execute him.

For this analysis, on the other hand, I use the term “exoneration” without qualification. I use it instead as defined by The Death Penalty Information Center, from where I obtained the list of exonerees. To be included in their list, the defendant must have been convicted, sentenced to death and then subsequently acquitted at re-trial, or had all charges dropped, or had been granted an absolute pardon by the governor based on new evidence of innocence.

Hank Skinner would not be considered exonerated based on the definition used in this analysis. Also excluded by this definition would be any person who had his death sentence reduced to life in prison based on some failing of the State during the death penalty phase of the trial. One example from that category would be Cory Maye of Mississippi.

Put simply, the exonerees included in this analysis should never have been on death row in the first place, based on evidence learned only after the trial.

One final delay before the shocking implications. I want make clear two assumptions. First, I’m assuming the juries (in some cases the judges) in Texas are neither more foolish nor more wise than their counterparts in the other forty-nine states. This means I’m assuming the same percentage of factually innocent people have been sent to death row in Texas as in the other states.

My second assumption is that not every innocent person on death row is identified and exonerated. Some, pehaps many, are executed. If I’m correct in this assumption, the results which follow are less disturbing than they should be. If I'm wrong in this assumption, if every innocent person is identified and spared before execution, then that would be of great comfort. Unfortunately, as we shall see, I’m probably not wrong.

Okay. Everything is in place. Here we go.

If Texas juries are neither more wise nor more foolish than their counterparts in the other states, then Texas juries placed the same percentage of innocent people on death row as did the other states. We can estimate that number using the death row exonerations-to-executions ratio from the other forty-nine states. Recall that number was 14 exonerations for each 100 persons executed or exonerated.

Since Texas executed 450 people while freeing 11, we can calculate they should have exonerated 14% of the 461 individuals. That equals 65 and a fraction.

They should have exonerated 65 people, give or take some statistical variation. They exonerated 11.

The difference is 54 wrongfully executed people who should have been exonerated.

Hank Skinner will be 55.

A Simple Request to Each Innocence Project

We have sent a letter to each of the 60 innocence projects in the United States requesting each to take a public position opposing the execution of any person who has been exonerated by DNA testing. We have asked also that each of them take a public position against the execution of any person while probative DNA testing remains untested. The body of the letter follows:

As you may be aware, Hank Skinner is to be executed by the State of Texas on the 24th of this month, March 2010. You may not be aware, however, that this execution is unique in its disregard for DNA evidence which corroborates actual innocence. Mr. Skinner’s impending execution therefore is an affront to every innocence project in this country and to every wrongfully-convicted prisoner who prays that innocence will one day absolve him.

Announcing it would do "whatever it took" to "shut up" those who doubted Mr. Skinner's guilt, the State of Texas submitted fourteen pieces of evidence for post-conviction DNA testing. None on the results inculpated Mr. Skinner. To the contrary, the results either excluded him or were deemed “inconclusive.”
 
Notably, a hair found clutched in the victim’s hand, a hair declared by the district attorney prior to testing to have been grasped from the murderer as the victim struggled for her life, excluded Hank Skinner as the donor.
 
Without shame, the State quickly secreted other test results, particularly those for bloody and broken fingernail clippings and those for a rape kit. The fingernail clippings are especially significant because Hank Skinner had no fingernail scratches on his body. Nonetheless, the State refuses to reveal those results, the status of the testing, or the physical location of the evidence. Indeed, the State refuses to acknowledge even the existence of the evidence which, prior to testing, was well-kept and allegedly probative. The State’s behavior is particularly egregious since it announced with confidence beforehand that the testing would “put a few more nails in that man’s coffin.”
 
And finally, the State refuses to release for testing additional probative DNA evidence, though David Protess of the Medill Innocence Project has offered for more than a decade to fund it. Items which remain untested include a bloody knife and a bloody axe handle (the likely murder weapons), a bloody dish towel (found in a trash bag with a handprint from an unidentified third party), and a foreign windbreaker (contaminated with hairs, blood, and sweat.)
 
Based on the exculpatory results from the hair found clutched in the victim’s lifeless hand, on the significance of that hair as declared by the State when they anticipated Mr. Skinner’s guilt, and on all other exculpatory evidence in this case, we at The Skeptical Juror declare Hank Skinner to be factually exonerated.
 
But we are only one small voice.
 
For these reasons, we humbly implore each innocence project in the United States to take a public stand, prior to March 17, 2010, condemning the execution of any person while probative DNA is withheld from testing and scrutiny.
 
Also, we humbly implore each innocence project in the United States to publicly condemn, prior to March 17, 2010, the execution of any person factually exonerated by DNA testing.
 
And should you have time to review the specific case of Hank Skinner, and should you find as well that he has been factually exonerated, we humbly implore that you so publicly declare before his execution on March 24, 2010.
 
With a robust and collective condemnation against the practice of executing factually exonerated individuals, the innocence community will help curtail the abuse of our government’s power to take from its citizenry their inalienable right to life.
 
We close by reminding you of the tragedy of Cameron Todd Willingham and of all others executed though factually innocent. It is in their legacy we hope to save Hank Skinner’s life.

FACTUALLY EXONERATED!

Compare the two photos below.  They are nearly identical. Nearly.

The student of history will recognize the photos to be of Vladimir Lenin surrounded by supporters and random members of the proletariat. That’s Lenin in the center. He’s wearing the dark coat that extends to the bottom of the photo.

Even a casual observer will realize that the second photo is simply an altered version of the first. Several people have been removed. Working counter-clockwise from Lenin’s head, the following people in the first photo are missing from the second: the man in the upper left corner with the pronounced full-facial beard and moustache; the man in the lower right corner with the dark eyes and dark beard; and the man just to the right of Lenin, the one with the hat and glasses, the one saluting.

I can’t identify either of the first two people who have gone missing. The third person, the one saluting, is Leon Trotsky. He criticized Stalin’s leadership, was exiled to Mexico, assassinated there, and removed from the Soviet’s official history.

The two photos are not oddities. They are not unusual, nor are they examples unique to the Soviet Union. Oppressive states sustain themselves in part by controlling information. People disappear from photos as they disappear from life; data are altered; inconvenient results suppressed or destroyed. Even states that consider themselves enlightened, as do they all, fall victim to the temptations of manipulating information.

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More than five years after the conviction of Hank Skinner, District Attorney John Mann sent previously-untested DNA samples from the case to GeneScreen laboratory for testing. The fourteen samples included a rape kit, fingernail clippings, a bloody cassette tape, a bloody piece of gauze, a bloody notebook, and multiple hairs. Of particular note were two hairs found clutched in Twila Busby’s right hand.

Before the testing, John Mann declared those hairs to have come from the person who murdered Twila Busby. At the time, he believed Hank Skinner to be the murderer. “The D.A. said late last week he felt certain the test will prove the hair in Twila’s hand is Skinner’s which he says convinces him that she fought with him for her life.”

But when tested, DNA results from both those hairs excluded Hank Skinner as the donor. One hair was matched to Twila Busby herself. The second was matched to an unknown male, possibly a maternal relative. Neither hair came from Hank Skinner. In fact, none of the items tested included Hank Skinner as a possible donor.

By Mr. Mann's own assessment, the DNA tests factually exonerated Hank Skinner.

When DNA testing factually exonerates a convicted person, the standard response, and the only reasonable response, is to grant that person a new trial or dismiss the charges completely. Inconceivably, in this case the state of Texas decided instead to proceed with Hank Skinner's execution. The troublesome test results would be no great impediment. They would simply disappear, as if they were nothing more than inconvenient dissenters in a grainy photo.

###

After declaring he would do "whatever it took" to "shut up" those who doubted Skinner's guilt, John Mann spent the final seven months of his term suppressing and lying about the results of the DNA tests he personally approved. Rather than release the results to the public, he launched a smear campaign against the man he had unintentionally exonerated.  "Hairs found in the hand of murder victim Twila Busby belonged to Henry Watkins Skinner," John Mann bloviated. "In all the sampling," he prevaricated, "there has been no DNA from a third person."

Equally insidious is the disappearance of the rape kit and the fingernail clippings. Even after John Mann's departure from office, even after the results for the other items were finally released, the results from the rape kit and fingernail clippings went unreported. To this day, the state of Texas refuses to make those results public. To this day, the state of Texas refuses to reveal the physical location of the rape kit and fingernail clippings. It refuses even to acknowledge their very existence.

As Texas prepares to execute Hank Skinner just days from now, its leaders and representatives present us an altered portrait. A rape kit that once would cause us to "shut up" has gone missing. Fingernail clippings that once would "put a few more nails in that man's coffin" have vanished. A hair pulled from the head of the killer is dismissed with a shrug and a few unabashed lies.

We are supposed to look upon their work and remain silent.

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We at The Skeptical Juror declare Hank Skinner to be facutally exonerated. We base our declaration on the hair clutched in Twila Busby's right hand, on the testing that excluded Hank Skinner as the donor of that hair, and on District Attorney John Mann's pronouncement that Twila Busby pulled that hair from her killer during the final struggle of her life.

We submit that the execution of Hank Skinner, should it be now be allowed to proceed, will indelibly tarnish the reputation of the great state of Texas, and will bring infamy upon all those who could have stopped the execution but elected instead to stand silent.

We call upon innocence projects throughout our country, and throughout Texas in particular, to review the circumstances of the impending Hank Skinner execution, and to make a public pronouncement of their own should they too find Hank Skinner to be factually exonerated.

CORRECTION:

While the rape kit and fingernail clippings were not tested (as I correctly reported), they have not gone missing (as I incorrectly reported). I am informed that the State of Texas has control of that evidence, and that the evidence is secure and viable for testing.