Tuesday, July 6, 2010

Harold Comer: The Gift That Keeps On Giving

Even though the people of Texas paid Harold Comer a suspiciously exorbitant amount for his pathetic defense of Hank Skinner, they got their money's worth and more. Comer gave them the Mama Bear defense: not too good and not too bad. He wasn't so good that Hank Skinner walked free, yet wasn't so bad that an appellate court would rule the defense incompetent. (They seldom do.) Comer didn't insist on testing all the DNA before the trail, then blathered on before appellate judges why it was a strategic decision. As far as the appellate judges were concerned, Comer's decision for not testing didn't have to be a good or wise decision; it merely  needed to be a reasoned decision.

Comer knew how the system worked, having previously been the DA who prosecuted Hank Skinner. Comer gave Texas exactly what it needed to convict Skinner and provided cover to keep the conviction from being overturned. He was paid handsomely for doing do.

But Harold Comer didn't stop there. He continues to this day to hurt his past client (Hank Skinner), as he helps his de facto current client (Texas), while trying hard to repair the tarnished reputation of his real client (himself.)  Here's how it works.

Independent and fair minded journalist decides to write an article about Hank Skinner, contacts Harold Comer and asks about his failure to insist on testing all available DNA evidence. Harold says something along the line of, and I paraphrase:
Well, the DNA that was already tested was pretty damaging, so we made a strategic decision not to test the remainder. Instead we decided to fault the State for not testing it themselves.
If you as a reader find this explanation not particularly compelling evidence of Hank Skinner's innocence, then it is likely that you as a juror would be equally unimpressed. The twelve who sat in judgment of Hank Skinner didn't buy it either.

Harold Comer, to this day, continues to hurt Hank Skinner by indicating he didn't believe in Hank Skinner's innocence then and doesn't believe in it now. He leaves it to the reader's imagination that he has inside information about Hank's guilt, though we know that not to be the case. Harold Comer, in other words, is the gift that keeps on giving.

Lynn Switzer recently took advantage of the gift that is Harold Comer when she mounted her public defense for not allowing the remaining DNA to be tested. The entire defense is here. An excerpt follows:
In November 2005, lead defense trial counsel Harold Comer testified during a federal evidentiary hearing and explained the trial strategy, which included  ... 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; ...

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.
Just like I said.

The bottom line is that Harold Comer did not believe in Hank Skinner's innocence and put in a half-hearted effort to defend his client. Comer himself makes that clear in another long-winded answer from his testimony at the federal evidentiary hearing  just mentioned by Lynn Switzer:
All right. At the outset the evidence -- the state's evidence against Mr. Skinner was formidable. There was the DNA evidence, as I recall, that would show that Twila's, as well as Elwin Caler's blood was on the shirt and pants of Mr. Skinner. There was the blood spatter evidence that would be contrary to the defense's position that Mr. Skinner was comatose on the couch at all times during the time that Twila Busby was being attacked. There was the evidence that Mr. Skinner had given a statement to Detective Terry Young, in which there were statements made that were inconsistent with what our position was at trial, and that is that he was on the couch at all times during the attack on Twila Busby.

Now, faced with that evidence, we decided that the best defense theory posture would be to attack the state's evidence because of this lack of investigation. For example, on the DNA we felt that to go forward and have the defense affirmatively request additional testing, would prove no more helpful to us than the original testing that had already been done.

Now Donnell and also our second prong on the defense was that Mr. Skinner was too intoxicated to have been physically coordinated enough to commit these acts. So we thought it would be helpful if the jury had an alternative to Mr. Skinner. I mean it's one thing to say that -- to try to show that he was intoxicated and couldn't perform these acts, but we also wanted to convince or raise a reasonable doubt in the jury's mind that Mr. Skinner was the assailant, we thought we'd do that in this manner, that is, had the state chosen to test all of the evidence for DNA, then it might have proved, or might have been helpful to Mr. Skinner in indicating some other third party was involved in the commission of the offense.

But since we were going to fault them for not having done that, we thought that we might offer up some, if I could call it a decoy, maybe that's not too appropriate, but a decoy for the jury to consider in the sense that if the state had examined all this evidence and tested it, it might indicate that someone like Donnell had committed the offense and not Mr. Skinner.

So that was the reason why we came up with Mr. Donnell. I suppose there could have been two or three others that you just suspected, but Donnell -- I think Howard Mitchell's testimony was, if we had learned before trial, that this fellow had had some aggressive tendencies towards Twila, and had in fact, tried to rape her, and also at the party that night he had made improper advances toward her, and made some (inaudible) sexual advances toward her and inappropriate comments, we thought this would be an appropriate thing for the jury to hear, again create a reasonable doubt, and we wanted to re-enforce that somewhat with the testimony of other witnesses other than Howard Mitchell, so we offered I think two other witnesses. I remember Sherri Baker was one, and another -- I can't remember who the other was, to testify as to violent character and things of that nature.

But really we didn't seriously consider Robert Donnell as the assailant in this case because of the evidence that we had before us. We thought we had to deal with the evidence that we had, and we thought that that would be something that would indicate to the jury well, maybe if this fellow was that aggressive toward her, maybe the DNA testing by the state would have indicated that, so generally that's what we put our fingers on.
Compare Comer's mamby pamby approach to defending Hank Skinner to the far more assertive approach of Douglas Robinson, who at the time of the evidentiary hearing was acting as one of Skinner's appellate attorneys. I include questioning on two different subjects taken from different portions of the transcripts:
Robinson: Suppose you had evidence that Robert Donnell had thoroughly washed out his pickup truck two days after the murders occurred.

Comer: I don't like (inaudible) suppose (inaudible). I think probably put myself back into the place where we were talking about Donnell, I probably would have.

Robinson: Mr. Comer, do you recall whether Mr. Skinner suggested to you that you investigate Robert Donnell?

Comer: Well, he might have. Someone suggested that Robert Donnell had been aggressive towards Twila. Now whether that was Mr. Skinner or who it was, I -- it seems to me that it was Howard Mitchell, a witness for the state, who suggested that Mr. Donnell was a person who had in the past made improper advances toward Twila.

Robinson: I want you to focus now on DNA testing. You told me that the DNA testing was incriminating.

Comer: Yes.

Robinson: One reason is because it had Twila Busby's blood on his clothes, and I want to know why that DNA result was incriminating. It was your defense, was it not, it was part of your defense that Mr. Skinner was present in the house at the time the murders occurred, correct?

Comer: Yes.

Robinson: It was part of the defense theory, or an admission as part of the defense theory anyway, that Mr. Skinner was present in the same room with Twila Busby at the time that she was beaten with an. axe handle, correct?

Comer: Yes.

Robinson: So what would have been incriminating -- anymore  incriminating anyway than what the defense's theory was with Twila Busby's blood being on his shorts?
Here's your final exam question, based entirely on this post: If you were on trial for your life, would you rather be represented by Harold Comer, who thought you to be guilty, or by Douglas Robinson, who presumed you to be innocent?