Wednesday, June 9, 2010

A Response to Lynn Switzer: Hank Skinner's Statement to the Police

A couple weeks ago, I published Lynn Switzer's defense for her withholding of potentially probative DNA evidence in the death penalty case of Hank Skinner. I published her defense in its entirety and without comment, promising only to comment later. The time has come.

This will be the first of a four (or thereabout) part series in which I respond to the arguments she makes. In this post, I will address one of the most surprising aspects of her defense: the mention of "Mr. Skinner's videotaped statement to police about how he and Twila had fought with a stick", which she equated to the axe handle used to bludgeon Twila Busby.

I was not previously aware that Hank had given a statement, hence my surprise. I was surprised next to learn that it was my own fault for being unaware. Lynn Switzer, as it turned out, had extracted that tidbit from the transcript of a federal evidentiary hearing, and Hank Skinner, as it turned out, had posted that transcript on his website. (See, then click The Case of Hank Skinner / Legal Documents / Evidentiary Hearing Transcript Volume 1)

While Hank Skinner has certainly not been advertising the existence of that statement, since it seems to be generally unfavorable, he was not keeping it a secret. He put it on his own site for anyone to find, at least anyone willing to look. I guess I was so busy bloviating when I first began writing about his case that I failed to carefully read through all the material he had made available. I did read much of it to be sure, but obviously not all of it. I'm officially contrite, and it's time to move on.

Hank Skinner apparently provided the statement around 9 AM, on New Year's Day of 1994 That would be the morning following the murder of Twila and her two sons on New Year's Eve of 1993. The statement was 10 minutes long and was recorded on video tape. All parties at the evidentiary hearing seemed to accept it as "involuntary" and "without counsel".

Rob Owen, for example, asked John Mann, the DA who prosecuted Hank Skinner, the following question. "Directing your attention specifically to the Skinner case, did you conclude that there was a risk that the video taped statement taken from Mr. Skinner by Detective Terry Young on January the 1st of 1994 might not be admissible?"

To which John Mann replied: "I didn't conclude that there was a risk that it might not be admissible. I knew darn well it wasn't admissible."

Though the tape was inadmissible for trial, Lynn Switzer argued during the evidentiary hearing that the tape should be subject to testimony in that hearing because it provided insight into the defendant's state of mind. The judge granted her leeway on the issue. She used that leeway to introduce into testimony the following, presumably carefully-selected excerpts.
I don't even remember Scooter being there except for it seems like when me and his momma were fighting, I -- it seems like he come up and grabbed me behind the neck and got me off of her, and that's how I got throwed in the floor, but I ain't sure if he done it or not, or if I just fell. (Page 186)

Well, I remember her hitting me in the back with a stick and knocked me down. She got on top of me and she had the stick across my throat and I don't remember if I throwed her off or if she got up off of me or -- or what happened, but the fight ended for a minute and she went -- I was still in the living room, I think, and I believe she went in the back room or something, ... No, no, that's not right. We were fighting and arguing at first and I pushed her down and the fight ended. She went in the back room and then came back with a stick and hit me in the back with the stick, and then she knocked me down -- it knocked the breath out of me and then she knocked me down on the ground. Then she was on top of me and she had the stick across my shoulders. (Page 198)

At some point the fight kind of let up for a minute and I asked her where she had been. She told me she had been over at Howard Mitchell's house, she was forbidden to go over there by me because there's nothing but a bunch of drunks over there, and they just are no-good people, and I don't want her around them. (Page 198)
I have several observations regarding these excerpts:

1) Those people advocating for Hank Skinner's execution are aware of Hank's statement, and are describing it as Hank Skinner's "confession." Lynn Switzer too used that term  liberally during the evidentiary hearing. In her defense of withholding evidence, however, she is more restrained and describes the statement only as a statement.

2) In her defense for withholding evidence, Lynn Switzer excerpted the excerpts she managed to introduce into the evidentiary hearing.

3) She has provided no context. Context is important. So that we may consider the excerpts in the context they were provided, I challenge Lynn Switzer to publish Hank Skinner's entire statement. If she provides that statement to me, in its entirety, I will post it here, in it's entirety. If she claims she is not allowed to make public that document, she might explain instead her legal basis for publishing an excerpt from it.

4) Hank makes no mention of an axe-handle. He said stick. Lynn Switzer equated the two. It's not at all clear that Hank equated the two. It's not at all clear Hank was in any condition to do any equating.

5) Hank had no wounds to his throat consistent with being choked by either a stick or an axe handle. He had no scratches on him consistent with any fighting.

5) Hank is having trouble telling a consistent story. I think, and I believe she went in the back room or something, ... No, no, that's not right. We were fighting ...

I believe that Hank was confabulating. (From the -- Confabulate: To fill in gaps in one's memory with fabrications that one believes to be facts.)

Even the prosecution team seemed to consider that a possibility. I submit more excerpts from the evidentiary hearing. In the following Q&A, Ms. Georgette Oden of the prosecution team is questioning Dr. William Lowry of the defense team. (See Volume II, page 351.)
Q Now you previously testified that drug and alcohol abuse causes organic brain damage?
A Yes.
Q And with organic brain damage you can have what's called confabulations at any time?
A Yes.
Q You don't just have confabulation when you're taking the alcohol or when you're taking the drug?
A Correct.
Q And when you say confabulation you mean the brain is filling in blank when it doesn't know what happens?
A Correct.
Q And just because you're doing that doesn't mean you're taking drugs at that moment?
A Correct.
As more evidence of confabulation, consider the following excerpts from Andrea Reed's recantation. Recall that Hank Skinner showed up at Andrea Reed's door after the murder. He was bloody and claiming he had been shot.
When I described in my written statement how Hank said that he thought that he tried to kick Twila to death because he found her in bed with her ex-husband, I left out the fact that Hank gave me a ridiculous description of Twila's ex-husband that did not fit him at all. This is one of the reasons why I believe that his statement about kicking Twila to death was just a drunken fantasy like the other violent stories that he told me to explain how he was injured.

I falsely testified that out of all of the stories that Hank told me on the night of the murder, the only one that he made me swear not to reveal was his story about kicking Twila to death. The truth is that he swore me to secrecy or made me promise not to tell each time that he gave me a different story about what happened.
Clearly, Hank Skinner was telling story after story about what happened that evening, and getting none of them correct. He was shot. He had kicked Twila to death. Scooter grabbed him from behind by the throat. Twila came up from behind and tried to choke him with a stick. He told Andrea Reed multiple stories and swore her to secrecy "each time he gave me a different story about what happened." He told the police multiple stories of what happened.

Lynn Switzer carefully selected a few excerpts from Hank Skinner's "involuntary" police interview, the one taken "without counsel." Switzer then published those excerpts without any context as part of her defense for not testing potentially probative DNA evidence before executing Hank Skinner. It's unseemly, at best. As penance, I suggest Lynn Switzer read about the terrible injustice associated with false confessions.

Having now waded through all 845 pages of the Hank's evidentiary hearing transcripts (so you don't have to), I have grown weary of trying to sort out all the "he said", "she said", "but earlier he said", "oh yeah, earlier she said" business. It seems so silly to be doing so when we might be able to positively establish Hank Skinner's guilt or innocence by simply testing the damn DNA.

In the next post responding to Lynn Switzer, I believe I'll discuss the issue of Hank declining to test all the DNA prior to his trial. I believe I'll subtitle it "Harold Comer: The Gift That Keeps On Giving."