Wednesday, May 26, 2010

Congratulations, Lynn Switzer

Lynn Switzer has issued a response to the Supreme Court decision to grant certiorari review to Hank Skinner. In a letter sent to, she explains why she is intent to see Hank Skinner executed.

I have previously criticized Rick Perry for standing mute. (I believe, in fact, I may have called him a coward.) I now congratulate Lynn Switzer for stating her position clearly and publicly.

You can read her entire letter at the link provided above, or (better yet) you can remain here and read the entire letter below. I will allow Ms. Switzer to make her case without interruption. In the coming days, we will discuss the issues she raises.
Today the United States Supreme Court granted certiorari review in Skinner v. Switzer, No. 09-9000.

In January 2010, the United States District Court dismissed Mr. Skinner's civil rights lawsuit, and the Fifth Circuit Court of Appeals affirmed the decision. Mr. Skinner petitioned the United States Supreme Court seeking further review, and that request was granted by today's order.

Our office responded to Mr. Skinner's civil rights litigation by taking positions strictly in accordance with the controlling law of the State of Texas, and the Fifth Circuit Court of Appeals, and the briefing we filed primarily challenged whether the District Court had jurisdiction to reach Mr. Skinner's complaint.

There have been many inquiries about why Lynn Switzer has opposed Mr. Skinner's request for post-trial DNA testing. It is important for the citizens of Gray County to view that request in light of the procedural background of this case. 
Mr. Skinner was convicted and sentenced to death in March 1995 for having killed Twila Busby and her two adult, mentally-challenged sons Randy Busby and Elwin "Scooter" Caler, shortly before midnight on New Year's Eve of 1993. Before the trial, former Gray County District Attorney John Mann obtained DNA testing and those results were admitted against Mr. Skinner during trial. DNA testing of two of the blood stains on Mr. Skinner's shirt were consistent with Twila Busby's DNA, while a third blood stain was consistent with Mr. Skinner's DNA. DNA testing of blood stains on Mr. Skinner's jeans showed a mixture of blood from Twila and her son Elwin, and two other blood stains were consistent with Elwin's DNA. A forensic scientist testified at trial that 1 in 5.5 billion people (at the time, the population of the earth) would have the same seven DNA probes identified in the blood stains as belonging to Twila, Elwin, and Mr. Skinner. In 2000, former District Attorney John Mann again submitted several items of evidence for DNA testing. The results of some of the items were inconclusive. The testing on the hair found in the right hand of Twila showed a profile that was consistent with both Twila and Mr. Skinner. All evidence was available for forensic testing prior to trial had Mr. Skinner's attorneys Harold Comer and Kenneth Fields chosen to do so. They made a strategy decision to not have it done.

Years later on appeal, as he sat on death row, Mr. Skinner argued that his attorneys were ineffective for failing to pursue DNA testing.

In November 2005, lead defense trial counsel Harold Comer testified during a federal evidentiary hearing and explained the trial strategy, which included (1) that the defense hired a DNA expert who evaluated the State's evidence and found no basis for challenging the results; (2) that certain DNA test results, such as for the blood stains on Mr. Skinner's clothing, had been damaging to the defense's case and counsel did not want to run the danger of uncovering even more damaging evidence; (3) that the defense's blood spatter expert determined that widespread amounts of blood stains on the clothing Mr. Skinner was wearing when he was arrested a few hours after the murders were inconsistent with Mr. Skinner's story that he had lain comatose on the sofa only a few feet away from where Twila was beaten and strangled to death; and (4) that Mr. Skinner's videotaped statement to police about how he and Twila had fought with a stick (which police found imbedded with blood and hair, and laying near Twila's body) was also inconsistent with Mr. Skinner's alibi.

The United States District Court held that Mr. Skinner was represented at trial by competent counsel who made a reasoned strategic decision to not seek DNA testing, and denied relief on this ineffective assistance of counsel claim. The Fifth Circuit found that reasonable jurists would not debate the decision, and the United States Supreme Court denied review.
 Additionally, Mr. Skinner filed two motions with the trial court (in 2001 and 2007) seeking post-conviction DNA testing. Both times, the trial court and the Court of Criminal Appeals found that Mr. Skinner was unable to show that there was a reasonable chance that additional testing could exonerate him, and therefore denied the motions. In both instances, Mr. Skinner failed to ask the Supreme Court for certiorari review.
Nearly 15 years after trial, Mr. Skinner tried another tactic -- arguing for the first time that current Gray County District Attorney Lynn Switzer is violating his civil rights by not allowing him to conduct additional DNA testing. Although nothing prevented Mr. Skinner from filing a civil rights lawsuit earlier, he did not initiate this attack until after the trial court ordered his execution for February 2010. followed the Switzer letter with a direct quote from her.
"As District Attorney for the citizens of Gray County, I give great weight to the wishes of the victims' families, and particularly in this case, to the family of Twila Busby and her sons, Elwin and Randy. I have been in communication with the immediate family of these victims and my position regarding the DNA evidence controversy is fully supported. There have been so many questions, speculations, allegations and outright misrepresentations in this case that it has been difficult to stand silent until the civil suit was resolved. I made the decision to defend against this suit with an eye not only on Mr. Skinner's case but on past and future cases as well. I knew that there were ramifications for District Attorney's all across the state, especially where the defendant waits so long before even filing a civil rights lawsuit. I felt that it was important to stand firm, something that is not always easy to do. If defendants are allowed to "game the system" then we will never be able to rely on the finality of the judgments entered in their cases. I know that it has been hard on the family and friends of Twila, Randy and Elwin and I appreciate their feelings of frustration and hurt.

"Skinner had a full and fair trial before a Gray County jury. He elected not to have more evidence tested for DNA, which was his trial strategy. He was convicted. His case has dragged on for years. The fact that the Supreme Court has granted Skinner's request for a final review of this matter provides an excellent opportunity for the Court to affirm that once a convicted state prisoner has had an adequate opportunity to make a due process challenge to his conviction through a habeas corpus proceeding, other post-conviction proceedings are better left to the states to handle. The Texas procedure for obtaining this evidence is ample and reasonable, and Mr. Skinner has been given plenty of opportunity to show that additional testing could prove his innocence, but he could not show that. We look forward to presenting the case to the Court."

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