Tuesday, November 29, 2011

Innocent on Texas Death Row

While working on my not-quite-ready-for-primetime book on Rick Perry, I ran each of the people on Texas death row through my coarse filter. Of the 300+ cases I reviewed, I found 23 that I think have a reasonable possibility of being factually innocent. I've listed the 23 below, in order of their last name. I've included with each a one-paragraph summary of the case.

In addition to Larry Swearingen and Hank Skinner, of whom I have written extensively, three cases struck me as particularly interesting.

The Delma Banks case has elements of both Byron Case and Larry Swearingen. The time of death indicators (which I understand because of my work with Byron Case) prove that Delma Banks could not have committed the crime. In both the Banks and Swearingen cases, the state provided the defendant an alibi. In Swearingen's case, the State had him in jail when the science said the victim died. In the Banks case, the State's own informants placed Banks far from the crime scene when the science said the victim died.

The Darlie Routier case struck me as more interesting this time around. I've read about it before, but was generally unpersuaded by her claims of innocence. However, I listened this time to the call she placed to 911. I'm not claiming that someone can't fake a such a call, though the Melendez brothers couldn't. And I'm not claiming that I could detect a good fake. Listening to the call, however, tended to make me believe her more than I had previously. You can listen to the call here.

Also, with respect to Routier, I now notice a claim that (at least some of) the state investigators took the Fifth during their cross-examination by Routier's attorneys. That makes me suspicious as hell since the case against her consists of inconsistencies between her story and the evidence as compiled and told by the investigators. I need to know a lot more about Routier's case before taking a firm position, but I admit to being more curious now.

The third case of particular interest to me at the moment is Preston Hughes III. A reader took me up on my request that one of you look into that case, and he has delivered a first draft of his findings. We both agree he has more work to do, but that is another interesting case.

Without further ado, I present my list of 23 people on Texas death row who I believe might be factually innocent.

Delma Banks, Jr.
Based on the victim's state of rigor and the victim's lack of corneal cloudiness, the victim in this case was murdered when Delma Banks was 180 miles away from the crime scene. The State simply failed to attribute any significance to the time-of-death indicators.

Lester Leroy Bower
Lester Bower is accused of killing four people, execution-style, in an aircraft hanger. There were no fingerprints, no witnesses, no murder weapon, and no confession to place him at scene of the crime. Four alternative suspects were identified post-conviction by an ex-girlfriend of one of them. Bower's defense has been attempting secure evidence from the State to see if items from crime scene include DNA from any of the alternative suspects.

Alfred Dewayne Brown
Brown is accused of being the third culprit in a store robbery that led to the death of two police officers. He was convicted primarily on the testimony of an accomplice who escaped the death penalty for his testimony. The accomplice testimony was corroborated by a jailhouse snitch who was released almost immediately after claiming Brown had confessed to her.  [UPDATE: Exculpatory evidence has recently been discovered in the garage of one of the homicide investigators who investigated the case.]

David Lynn Carpenter
Carpenter was accused of slashing a woman's throat for hire. He was convicted based on the testimony of his ex-girlfriend and a tainted photo lineup conducted seven years after the crime.

Cesar Fierro
Cesar Fierro was accused of murdering a cab driver in the border town of El Paso. He was convicted based primarily on his confession. To force Fierro to confess, the El Paso police coordinated with the police in Juarez, Mexico. The Juarez police took Fierro's parents into custody and threatened to torture them unless Fierro confessed. The appellate courts agreed that Fierro's confession was extracted by threats of torture, but declared the police behavior to be a harmless error.

Charles Don Flores
Flores was accused of killing an elderly woman during a home invasion robbery. He was convicted based on purchased testimony and on a photo lineup ID made by a woman. The woman could identify Flores only after being subjected to hypnosis.

Tony Egbuna Ford
Ford was accused of committing murder during a home invasion robbery. He was convicted based on being selected from a photo line-up by two surviving victims of the attack. Ford concedes he drove the two brothers to the crime scene, not knowing of their plans to harm anyone. Ford looks remarkably like the brother who was not charged in the case.

Cathy Lynn Henderson
Henderson was accused of murdering a 3-month-old she was babysitting. She was convicted based on testimony that the fatal injury could not have occurred by inadvertently dropping the baby on its head, as Henderson claimed. That expert later recanted his testimony, citing “a greater understanding of pediatric head trauma and the extent of the injuries that can occur in infants.”

Preston Hughes, III
Hughes was accused of murdering a young woman and her younger cousin during an attempted rape. Though no physical evidence tied him to the crime, he was convicted based on the strength of two confessions. Hughes claims each of the confessions were coerced. Given that each of the confessions contradicts the other, Hughes has a prima facie case that at least one of his confessions is false.

William Irvan
Irvan was accused of murdering his lover. He was convicted based on the presence of his sperm and the testimony of a snitch. Bloody fingerprints found at the crime scene, however, did not belong to him or the victim.

George Edward McFarland
McFarland was accused of murdering a store owner during a substantial cash transfer. No physical evidence tied him to the crime. None of his alleged accomplices testified against him or were even charged. He was convicted solely on the testimony of an eyewitness and a nephew. The eyewitness initially described the shooter as someone substantially shorter and lighter than McFarland. The nephew, who testified only that his uncle had lots of money after the murder, received a crime-stoppers reward and leniency for his own robbery case. After the trial, the nephew recanted his testimony.

Anthony Shawn Medina
Medina was accused of being the shooter in a drive-by shooting in which two children were killed. Though his fingerprints were not found on the murder weapon or in the car used for the crime, he was convicted based on the testimony of four witnesses.

Pablo Melendez, Jr.
Melendez was accused of shooting a man waiting for a drug drop. He was convicted based on the testimony of fellow gang member whose brother matched the description given by a witness to the shooting. A photo of Melendez, not shown during the guilt phase of Melendez' trial, shows that Melendez in no way matched the description of the shooter.

Louis Castro Perez
Perez was accused of killing two women and a girl. He was convicted based on his bloody palm print at the crime scene, scratches on his body, and his DNA under the fingernails of the girl. Perez admits to being at scene, discovering the bodies and fleeing due to fear of being accused. Perez claims the girl scratched him as he cradled her in his arms. Other DNA evidence at the scene points to someone other than Perez.

Charles Douglas Raby
Raby was accused of stabbing an elderly woman 15 times. No physical evidence tied him to the crime. He was convicted based on a false confession and shoddy work by the infamous Houston PD crime lab. Post-trial DNA testing of the victim's fingernail scrapings excluded Raby as her assailant.

Rodney Reed
Reed was accused of killing a woman after raping her. He was convicted based on the presence of his semen in her body and based on a previous denial that he knew her. After his arrest, Reed claimed he and the victim had been having an affair. Other DNA evidence withheld from the defense tended to exclude Reed as the killer. Evidence developed post trial points to the victim's husband as the killer.

Darlie Lynn Routier
Routier was accused of killing her children and staging a home invasion to cover the crime. She was convicted because the crime scene evidence allegedly contradicted her version of events. The investigators, however, invoked their Fifth amendment rights against self-incrimination when they were cross-examined by Routier's attorney. Post-trial, a fingerprint expert identified a bloody fingerprint from the scene as belonging to an unknown adult. Also post-trial, Darlie's husband conceded he searched for someone to burglarize the house so that he could benefit from an insurance scam.

Henry Watkins Skinner
Skinner was accused of murdering his live-in girlfriend and her two grown children. He was convicted based on his presence at the scene at the time of the murder and based on the inculpatory statements of a neighbor. Skinner has always maintained he was too intoxicated to have committed the murders. Bloody bootprints and a hand print at the scene point to an assailant other than Skinner. Post-trial investigations identified the girlfriend's uncle as a viable alternative suspect. Post-trial DNA testing of hairs clutched in the girlfriend's hand excluded Skinner. The State refuses to allow testing of other DNA evidence.

Max Soffar
Soffar is accused of killing three youths in a bowling alley. He was convicted based on multiple, nonsensical confessions. After his trial, a serial murderer imprisoned in Tennessee for killing seven people was identified by a witness as the man who had threatened to shoot people the bowling alley, on the very day of the shooting. The serial murderer had previously been in Texas.

Larry Ray Swearingen
Swearingen was accused of murdering a female college student. Her body was found more than three weeks later in a nearby forest. He had been in jail for three weeks before her body was discovered. He was convicted based on incriminating evidence found in or near his home, and because the medical examiner testified the victim died on the same day she disappeared. Multiple pathologists later determined that the victim died within days of her body being discovered. The medical examiner recanted her testimony regarding the date of death. Larry Swearingen, as it turns out, had been in jail for three weeks before the victim was murdered.

Manuel Velez
Velez was accused of killing the one-year-old son of his live-in girlfriend by striking the boy in the head. He was convicted based on the testimony of the girlfriend who said Velez was alone with the baby when the baby was injured. The State withheld from the defense that the girlfriend had already pled guilty to striking the boy in the head on the day he died.

Jorge Villanueva
Villanueva was accused of strangling and bludgeoning his 77-year-old female neighbor. He was convicted based on an allegedly coerced confession and more shoddy work by the Houston PD crime lab. Post-trial testing has revealed that the DNA results used to convict Villanueva would also have matched 136,000 other people in the county as well. His defense is attempting to conduct DNA testing on two pubic hairs found at the crime scene that were dissimilar from those of both the victim and Villanueva.

David Leonard Wood
Wood was accused of killing six women and burying them in the desert around El Paso. He was convicted based on the testimony of three snitches, a ball of orange fibers, and the testimony of a woman who claims he tried to rape and murder her in a similar fashion to the others. Wood's DNA was not found on any of the victims. The DNA of an unknown person, however, was found on at least one of the victims. A post-trial witness claimed the near-victim who testified against Wood lied in exchange for reduced sentencing for another crime. The same post-trial witness provided the name of a viable alternate culprit

Saturday, November 26, 2011

The Skeptical Juror Is More Influential Than Barack Obama

At least according to GQ Magazine.

This adds to my ever growing list of accomplishments / endorsements. Though it is clearly bragging, I must point out that previously I have:
I must admit, however, that this is the biggest, most surprising achievement yet. To be intentionally excluded from the GQ Magazine list of least significant people, while President Barack Obama is intentionally included, is an honor only a select few can hope to achieve.

I want to thank my wife, my parents, and both readers of this influential blog.

Friday, November 25, 2011

Regarding Flying Machines, Feedback Loops, and Criminal Justice: Redux

From 22 April 2010:

I've been away for a bit, both physically and mentally. I'm running behind on my posts. It seems I owe the second part of my essay on feedback loops.

If you missed the first part, you can read it here. It will reinforce the point I hope to make, but it's not critical.

In a previous career, I designed commercial transport aircraft for a major aircraft manufacturer. It would be far more accurate to say I helped design airplanes. No one person designs large aircraft. The jumbo jets are some of the most technologically advanced and complex pieces of machinery around today. Despite their complexity, the fact that they travel near the speed of sound, in a near vacuum, at -65 degrees Fahrenheit, and despite the fact they carry around a quarter million pounds of fuel, commerical aircraft are one of our safest forms of transportation. You are far safer flying from Los Angeles to New York than you are driving from Azusa to LAX. 

The safety doesn't result from mottos or mission statements, from pledges or codes of conduct. The safety results from a cadre of engineers who know nature will smite them should they fail to follow the rules. It comes from legions of regulators and auditors, customers and lawyers who will descend upon them should one of their elegant designs fall from the sky. The world of commercial aviation is a world of feedback loops. Planes are safe because those who err are fed back upon, with prejudice.

The world of criminal prosecution is largely absent feedback loops. Judges and prosecutors are, for the most part, legally immune any consequence resulting from their misdeeds, whether careless or willful. The populace returns them to office based on inflated conviction ratios rather than upon any measure of accuracy. The appellate system provides thinly veiled cover for all but the most egregious acts of misconduct. The bottom line is our judicial system deals grisly justice because it is unrestrained by any meaningful, negative feedback.

Consider the case of Charles Dean Hood. I started an Innocence Scorecard for the man, and though I haven't yet completed it, I figure he is good for the two murders for which he was convicted. The US Supreme Court recently declined to hear his case, so Texas can now proceed with his execution. Hood had argued that he had not been given a fair trial becaused the female judge and the male prosecutor had  been doing the judicial hokey pokey. She had ruled favorably on his motions. She sustained him repeatedly.

The point wasn't that Hood was incorrect in his accusations. Not at all. The judge and prosecutor both admitted to their affair. They claimed, however, that it was all over between them at the time of the trial. They didn't mention it to anyone, say the defense team, because the two star-crossed lovers would never let something like their runaway hormones get in the way of their jurisprudence.

The US Supreme Court sided with the judge and the prosecutor. Those two are, after all, servants of the State. The defendant, on the other hand, is a murderer. Off to the gallows with him.

Neither the judge, the prosecutor, nor the State of Texas were fed back upon. There simply is no effective feedback loop in our criminal justice system. Don't believe me? Give it a try. Withhold exculpatory evidence from the defense. The court will rule that you didn't, and that even if you did it would be a harmless error. Bribe a witness with time off, or threaten a witness with time in. Either will get a pass. Pay a discredited DA $86,000 to mount a pathetic defense in a murder case, and the appellate court will look the other way. 

Our judicial system will continue to strap innocent people to gurneys as long as the State exempts itself from any consequences for its bad behavior. Our judicial system is a plane wreck, and nobody plans to investigate. The people on board probably deserved what they got.

22 Apr 2010

Thursday, November 24, 2011

We're Number One! Unfortunately! Redux!

Originally from 23 May 2010:

I'm unabashed in the love and pride I feel for this country. By this country, I of course mean the good ol' USA. Besides the circumstance of my birth, one feature that warms my heart to this little slice of Earth is its willingness to listen to me. Or at least its willingness to allow me to speak. At least for now.

That's important, because sometimes you have to find a way to tell the one you love that she it is making a big mistake. So here it goes. Wish me luck.

I think we imprison far too many of our fellow countrymen. I think we have too many laws, and we criminalize too many people. And I hate to say this, but we convict way too many people who are actually innocent. We even execute some of them. I know you don't like to hear it, but we need to talk.

I want to talk about the number of people we wrongfully convict. I don't just mean talk about individual cases, here and there. I already do that. What I'm saying here is that I want to talk about the magnitude of the problem. I want to try to quantify it. If our wrongful conviction rate is a mere 0.027%, as Supreme Court Justice Antonin Scalia claimed in Kansas v. Marsh, then I'm out of line.

If, on the other hand, our wrongful conviction rate is closer to 10%, which I fear, then we must talk. We absolutely must talk.

Over the next few months, I will be posting a sequence of articles dealing with various ways of estimating our rate of wrongful conviction. In each case, I will multiply that rate times the number of people we have incarcerated to arrive at the number of people who may be now serving time for a crime they did not commit. A starting point then, is to get a sense of how many people we have in prison.

I turned as usual to the source of all knowledge: the internet. Not only that, I took the easy way out for this tenuous first step: I checked with Wikipedia. The numbers and quotes immediately below came from the Wikipedia article. Their numbers came, in turn, from the U.S. Bureau of Justice.
American prisons and jails held 2,304,115 inmates in 2008. Approximately one in every 18 men in the United States is behind bars or being monitored.

70% of prisoners in the United States are non-whites.
In recent decades the U.S. has experienced a surge in its prison population, quadrupling since 1980, partially as a result of mandated sentences that came about during the "war on drugs." Violent crime and property crime have declined since the early 1990s. 
Nearly one million of those incarcerated in state and federal prisons, as well as local jails, are serving time for comitting non-violent crimes.
About 10.4% of all black males in the United States between the ages of 25 and 29 were sentenced and in prison, compared to 2.4% of Hispanic males and 1.3% of white males.
The United States has the highest documented incarceration rate in the world at 754 persons in prison or jail per 100,000 (as of 2008).
That last one hurts. (They all hurt, actually.) You can compare our rate of 754 convicts per 100,000 countrymen against the rate for other countries here. I'll save you the trouble. At 152, England has a rate just one fifth of ours. Australia, which served as a penal colony for England, has a rate of 129. Romania, formerly behind the Iron Curtain, has a rate of 125. France comes in at 96, Belgium at 93, Germany at 88, Denmark at 63.

Maybe it's unfair to point out our incarceration rate is five to ten times that of other "westernized" countries. Maybe we'll do better if we compare ourselves to Africa. Let's see.

Okay, we're not a whole lot worse than Rwanda. They have a rate 593, so we're only 33% worse than Rwanda. But South Africa, not known as a model of restraint when arresting its citizenry, has a rate well less than half of ours. Zimbabwe comes in at 136, Ethiopia at 98, Ghana at 59, Nigeria at 26.

I guess that didn't work out. Maybe the Middle East will provide a more favorable comparison, what with all the turmoil there and Sharia law and everything. Surely they must be doing worse. Hang on, I'll check it out.

Let's see. Israel has a rate of 326, but they're kind of a "westernized" country, so we can ignore them. (We already know we don't fare well against "westernized" countries.) I'll keep scrolling down the list. Here we go. Iran comes in at 222, Libya at 209, Saudi Arabia at 178, Kuwait 130, Iraq 93, Yemen 83, Pakistan 55, Afghanistan, 44. Crap!

There's stil hope. Surely we can't be worse than the communist states. I'll check.


Russia is 626, Cuba is 531. China is 119.

Okay, that does it. Time to turn to Uncle Cecil to get The Straight Dope on this issue. Just as I suspected, the numbers for China are, well, suspect. Uncle Cecil tells it like it is.
China, though . . . well, 1.5 million prisoners is just the official figure. Chinese human rights activist Harry Wu, who spent 19 years in forced-labor camps for criticizing the government, estimates that 16 to 20 million of his countrymen are incarcerated, including common criminals, political prisoners, and people in involuntary job placements. Even ten million prisoners would make for a rate of 793 per 100,000. 
Another nation suspected to have a lot of prisoners is North Korea. The country isn't listed in ICPS statistics, but a recent NBC News investigation put the number of political prisoners alone at 200,000, or more than 900 per 100,000. 
Great, you're thinking. The only countries that might put away more of their own people than we do are both notorious authoritarian states.
So there's a chance we're not number one. There's a chance we're not as bad as North Korea.

America, we need to talk.

Wednesday, November 23, 2011

Pickings from the Devil's Dictionary: The Letter C

Courtesy of Ambrose Bierce

CALAMITY, n. A more than commonly plain and unmistakable reminder that the affairs of this life are not of our own ordering. Calamities are of two kinds: misfortune to ourselves, and good fortune to others.

CANNON, n. An instrument employed in the rectification of national boundaries.

CAT, n. A soft, indestructible automaton provided by nature to be kicked when things go wrong in the domestic circle.

CHILDHOOD, n. The period of human life intermediate between the idiocy of infancy and the folly of youth—two removes from the sin of manhood and three from the remorse of age.

CHRISTIAN, n. One who believes that the New Testament is a divinely inspired book admirably suited to the spiritual needs of his neighbor. One who follows the teachings of Christ in so far as they are not inconsistent with a life of sin.

CIRCUS, n. A place where horses, ponies and elephants are permitted to see men, women and children acting the fool.

CLAIRVOYANT, n. A person, commonly a woman, who has the power of seeing that which is invisible to her patron, namely, that he is a blockhead.

CLARIONET, n. An instrument of torture operated by a person with cotton in his ears. There are two instruments that are worse than a clarionet—two clarionets.

COMFORT, n. A state of mind produced by contemplation of a neighbor's uneasiness.

COMMENDATION, n. The tribute that we pay to achievements that resembles, but do not equal, our own.

COMPULSION, n. The eloquence of power.

CONDOLE, v.i. To show that bereavement is a smaller evil than sympathy.

CONFIDANT, CONFIDANTE, n. One entrusted by A with the secrets of B, confided by him to C.

CONGRATULATION, n. The civility of envy.

CONSERVATIVE, n. A statesman who is enamored of existing evils, as distinguished from the Liberal, who wishes to replace them with others.

CONSOLATION, n. The knowledge that a better man is more unfortunate than yourself.

CONSULT, v.i. To seek another's disapproval of a course already decided on.

CONTEMPT, n. The feeling of a prudent man for an enemy who is too formidable safely to be opposed.

CONVERSATION, n. A fair to the display of the minor mental commodities, each exhibitor being too intent upon the arrangement of his own wares to observe those of his neighbor.

CORPORATION, n. An ingenious device for obtaining individual profit without individual responsibility.

COWARD, n. One who in a perilous emergency thinks with his legs.

CRITIC, n. A person who boasts himself hard to please because nobody tries to please him.

CURIOSITY, n. An objectionable quality of the female mind. The desire to know whether or not a woman is cursed with curiosity is one of the most active and insatiable passions of the masculine soul.

CYNIC, n. A blackguard whose faulty vision sees things as they are, not as they ought to be. Hence the custom among the Scythians of plucking out a cynic's eyes to improve his vision.

Tuesday, November 22, 2011

The Truly Shocking Case of Davis Losada: Redux

I have for several weeks been heavily involved in other projects to the expense of this blog. I expect it will be another two weeks before I can once again spend the time necessary to post frequently. I've decided learn from television and present reruns, now frequently referred to as encore presentations.

Immediately below, I present an encore presentation of The Truly Shocking Case of Davis Losada, initally presented  July 23, 2010.


I’ve worked on this case off and on all through this week. I’ve spent fifteen hours or more researching, evaluating, scoring, and writing of it. It has taken more time than I can justify, given that it is just one case out of sixty or so that I must detail, and given all that I ignored to complete it. Davis Losada is dead, the case was confusing, and I believed him to be guilty.

Throughout my early research, I suspected Losada would end up with a low score. I found the case just one more distressing example of the evil that one human can do to another. I had to force myself to work on it. I decided I would use it as another example to prove I would be harsh in my scoring when the evidence so demanded, such as I was with Lionel Herrera and, to a lesser extent, Ruben Cantu.

A couple of nights ago, as I laid awake thinking of the case, some of the star witness testimony suddenly struck me as particularly odd. The case suddenly changed to one in which I thought the person was probably guilty, but one in which I would have had to vote Not Guilty because of suspicions I had about the State’s case. I decided then I would write of the difficulty of being a juror faced with such a decision.

This morning, as I was trying to pull everything together and prepare a scorecard, I searched the web one last time to see if I could find that one article, that one clip, that one paragraph that would cause the story to make sense. To my amazement, I found it. If you persist to the end of this post, you will see that I score Davis Losada as likely innocent, but certainly dead.


San Benito is near the southern tip of Texas, just about as far south you can get in the U.S. unless you go to Hawaii or Key West. There in the brush, on the outskirts of the small city, on the day before Christmas in 1984, they found the naked and battered body of 15-year-old Olga Lydia Perales. She had been bludgeoned 10 to 20 times about the head and shoulders. She had been stabbed twice in the chest, postmortem.

Rafael Leyva was sixteen years old at the time. Two weeks later, on January 8, Leyva told his probation officer that he knew who killed Olga Lydia Perales. He had been there. He had done nothing wrong himself, but the other three had raped and murdered Perales. By the time of Losada’s trial, he would admit he was involved.

According to his testimony, on the night of the murder, he had been riding around with three others: Davis Losada, Jesse Romero, and Jose Cardenas. They heard about a party going on over at the home of Ray Amaya. By the time they arrived, everyone was gone except Amaya and Perales. Amaya told them that Perales was in the shed and that they had been having sex. The four in the car offered to give her a ride home. Amaya called her from the shed. She spoke to Amaya and then got in Cardenas’ car.

Leyva was sitting in the back seat along with Losada. Cardenas was driving. Romero was sitting in the middle of the front seat. Perales was sitting the front seat, next to the passenger-side window. Before they could drive away, Romero pushed Perales head down between her knees. He held a knife to her neck and told her not to make any noise.

Cardenas drove out into the country and stopped the car. Levya, Cardenas, and Romero got out of the car. Losada remained in the back seat and ordered Perales to climb in the back seat. Her clothing was removed and, although she pleaded with them to let her go, she was raped repeatedly. Initially she was raped by Losada. Then she was forced to commit oral sodomy on him while Romero and then Leyva had anal intercourse with her. Although Cardenas did not have intercourse with her, he did insert an object into her while she was performing oral sodomy on Losada. When everyone else was finished, Losada raped her two more times, once in the back seat of the car, once on the top of the trunk lid.

After raping her, they decided they had to do something to keep her from going to the police. Cardenas pulled a pipe out of the car and handed it to Levya. Everyone told him to hit her. He didn’t want to so he asked her to promise she wouldn’t tell anyone. She said she wouldn’t. He tried to convince the other three she wouldn’t tell, but they insisted he hit her. Suddenly, his mind went blank; he took the pipe and hit her on the right side of the head. Romero then grabbed the pipe and began striking her. When blood began squirting out of her head, Leyva turned away.  He could still hear the others beating her with the pipe.

After the beating stopped, Losada stabbed her once in the chest. Levya and Romero dragged her body into the brush and Levya stabbed her one more time in the chest. They got back in Cardenas' car and left. During the trip back to San Benito, they threw the knives out of the car window and stopped on a bridge and threw the victim's clothing into a creek.

On cross-examination, Losada’s attorney, Jose Luis Peña, asked only three questions of the State’s star witness.

Q: Mr. Leyva, I was reading your statement here and it says here that at the time of the rape you stated that you did not know who the girl was at that time; is that correct?

A: Sir, I didn’t hear you.

Q: Mr. Leyva, I was reading one of the paragraphs in your confession, your statement, and it says here somebody was raping the girl and that you, at this time, you didn’t know who the girl was; is that correct?

A: Yes, Sir.

Q: You didn’t know who she was?

A: No, Sir.

Though Losada didn’t testify, the defense tried to make a case that Losada was indeed at the scene, but had only consensual sex with the victim, and did not harm her in anyway.

Davis Losada didn’t stand a chance. He was convicted and sentenced to death exclusively on the testimony of Rafael Leyva. Then Jose Cardenas was tried, convicted, and sentenced to life in prison based exclusively on the testimony of Rafael Leyva. Then Jesse Romero was tried, convicted, and sentenced to death based exclusively on the testimony of Rafael Leyva. Leyva was sentenced to twenty years, and is a free man today.


I passed Davis Losada through my coarse filter based solely on a Northwestern University Center on Wrongful Conviction list of possibly innocent people who were executed. Northwestern didn’t explain why they felt Losada might be innocent, but since they are among the most trustworthy institutions in the wrongful conviction movement I decided to investigate his case.

I couldn’t, however, find anybody who was arguing that Davis Losada was wrongfully executed. That is unique so far in my search for the 54 innocent people I calculated Texas must have executed. Usually, the internet is awash with claims of actual innocence for those who had passed through my coarse filter. The typical problem has been to find a reasoned article or paper on why the person was in fact guilty. Usually for that I rely on Google Scholar to find appellate decisions. The appellate courts, when justifying their refusal to grant a new trail, frequently provide the best case summaries for the State’s case.

For this case, the only substantive resources I could find were the appellate decisions for each of the three people who were convicted based on the testimony of Rafael Leyva. After reviewing those five appellate rulings, there was little reason to believe that Losada wasn’t factually guilty.

I did find one interesting problem that seemed to me to be the basis for Northwestern’s inclusion of Losada on their list of people possibly innocent but certainly executed. It turns out that Jose Luis Peña had been assigned by the State to represent Leyva, and had done so for a short time, before he was re-assigned by the State to represent Losada. Since Peña was bound by attorney-client privilege not to reveal anything he had learned during his one interview with Leyva, the re-assignment created a clear conflict of interest and should have never been permitted.

In an affidavit submitted as part of Losada’s appeal, Peña conceded that he had indeed been inhibited in his questioning of Leyva because he did indeed have insight from his interview with Leyva. He could not ask any questions knowing the answer from his interview with Leyva. Peña was not specific about his insight, since that too would violate the attorney-client privilege. The appellate court was unimpressed, argued the conflict was insignificant given the overwhelming evidence of Losada’s guilt, and declined to grant a new trial.


I mulled the case for several days. Leyva’s testimony began to nag at me. It changed over time, always to the benefit of the State that would later decide Leyva’s fate. The first nag was tiny. “Before we drove off, Romero pushed Perales’ head between her knees, held a knife to her throat, and told her to be quiet.”  [Not an exact quote.] That seemed odd. That would cause it to appear as if Romero and Cardenas were choosing to sit uncomfortably close to one another in the front seat. I didn’t think two young macho Latino males would drive around like that. Why not have Perales’ sit between them?

Then it hit me that Ray Amaya, the party giver and the one who had brought Perales to the car, never mentioned anything about Romero forcing Perales’ knees between her head. Why would they do such a thing just before they drove off anyway? Why not wait until they weren’t being observed?

I remembered also a twist that Leyva had added at the last of the three trials, the one for Jesse Romeo. He testified then that as Perales approached the car, Romero “pushed” her in, then forced her to place her head between her knees. If Romero pushed her in, how did he end up sitting between her and the driver? It didn’t make sense. It did however help the State convince the jury that Perales did not consent to any sex with any of the four.

Then one more thing. I thought it odd that Leyva claimed Cardenas did not participate in the rape, but instead inserted an unidentified object into her. I recalled reading in a Cardenas appeal that blood was found on a pair of Romero’s shorts they found in his house. The blood was Type A or Type AB. Cardenas was type A, as was Romero. The other three defendants were Type O, and Cardenas was a Type O secretor. That means his blood type can be determined from his other bodily fluids, such as semen. It occurred to me that they must have found no Type O secretor semen during the autopsy, needed an alternative means of convicting Cardenas of raping the victim, and had Leyva testify about the mysterious object.

These three tidbits of suspicion came from three different trials. Had I been a juror on Losada's trial and had all three tidbits, I would have suspected Leyva was tailoring his testimony to please the state, would have lost trust in his testimony, and would not have voted guilty. I would have still suspected that Losada had been involved in the rape and murder, and I would have been utterly pissed that the State had put me in such a moral dilemma. They would have been asking me to violate my oath to bail them out of a mess they made. I hope I would have had the wisdom and courage to make the correct decision.


This morning I found the one news article I was looking for. It was published just before Losada was executed. Peña had apparently become so concerned about seeing Losada die, he signed another affidavit regarding his conflict of interest. In this affidavit, he violated his attorney-client privilege with Leyva and told the appellate court what he had learned in his one interview with Leyva. It was a serious violation of his legal ethics and professional conduct, but Peña apparently decided he could no longer withhold the information.

According to Peña, Leyva told him that Perales was engaging in consensual sex with the others. Because he had been drinking and using drugs, he had been unable to attain an erection. She mocked him, that enraged him, and he killed her, to the shock and amazement of the other three.

The appellate court was still unimpressed and refused to grant a stay and Losada was killed by the State of Texas.

Peña’s affidavit is believable based on his behavior during Losada’s trial, based on his non-questioning of the State’s star witness, and on his argument to the jury that Losada had consensual sex with the defendant and did not harm her. His affidavit is believable as well because he exposed himself to disbarment for violating attorney-client privilege. I believe Peña was telling the truth.

If Leyva was telling the truth to Peña during the interview, and I see no reason he would lie when he claimed he couldn’t perform sexually and that he alone killed the victim, then grave injustice has occurred and is occurring. Leyva is walking free. Losada and Romero are in the ground, and Cardenas is spending his life behind bars.

Finally, I offer my Actual Innocence Scorecard for Davis Losada. I score him at 75, meaning I think it is three times more likely he was innocent than he was guilty.

And I’m truly shocked at how this all turned out.

Friday, November 18, 2011

Eddie Lee Howard: My Quick Assessment

Recently as part of my effort to complete America's Executioner, I reviewed more than three hundred cases of people sitting on Texas death row. Previously, I had reviewed more than four hundred cases of people already executed by Texas. In each case, I was hunting for people who are (or were) probably or possibly innocent.

I approach the problem by first passing all cases through a coarse filter. I try to limit myself to fifteen minutes  of research for each case. (Admittedly, I frequently find myself following link after link and losing track of my self-imposed time limit.) I keep a list of those cases that seem to justify further research. By applying this coarse filter technique, I can eliminate about 90% of the cases as having no reasonable possibility of factual innocence.

Note that I'm not searching for procedural flaws or technical reasons why someone shouldn't have been convicted. I'm searching for cases in which the convicted person had nothing to do with the crime.

After the coarse filter, I pass the remaining cases through a slightly finer filter. I allow myself an additional hour or two for each of the remaining cases to decide which of them are deserving of far more detailed research and evaluation.

With respect to those people currently on Texas death row, I found 24 cases that definitely deserve more detailed research.

In my previous post, Eddie Lee Howard: A Case for Your Evaluation, I provided you an opportunity to see that some cases are easily recognizable as a possible instance of wrongful conviction. You, at least those of you who commented on the post, had no difficulty finding problems with Howard's conviction, even though you seemed to limit yourself to 15 minutes as I suggested. You properly noted that the conviction relied heavily on bite mark testimony, that the bite mark testimony in Howard's case was troublesome, and that the bite mark expert had a history of questionable cases.

When I'm deciding whether or not to allow a case through my coarse filter, I'm on the lookout for warning flags. If I were to make a list of warning flags in the Howard case identified in the comments, that list would so consist of:
  • Bite marks
  • Dr. Michael West
In fact, if you were to go to Google Scholar and search for either or both of those terms, you would have no trouble finding many more troubling convictions.

Given that I've been employing this coarse filter technique longer than most of you, I noted more warning flags, even if I limited myself to just the appellate decision. Here are the flags I noticed in that decision.
  • Bite marks
  • Dr. Michael West
  • Dr. Steven Hayne
  • Alleged rape but no semen
  • A dissenting opinion
If you were to search Google Scholar for Steven Hayne, you would find many more troubling cases than  if you searched for Michael West. Also, there was a dissenting opinion in Howard's appellate decision that did a nice job of describing the problems associated with Dr. West's bite mark testimony.

One of the projects I am working on from time to time, when I have a moment, is to compile a list of warning flags such as I have discussed in this chapter. I won't reveal my list at this time, but I'll chum the waters with a few more:
  • Snitch testimony
  • Accomplice testimony
  • Recanted testimony
  • Hair and fibers "consistent with" the State's theory
I'd be interested in hearing from you about the types of evidence or the circumstances of a case that would cause you to suspect a wrongful conviction. Comments are open.

Monday, November 14, 2011

Eddie Lee Howard: A Case for Your Consideration

Eddie Lee Howard sits on death row awaiting execution by the people of Mississippi. As far as I know, he does not yet have a execution date.

I write of Mr. Howard as a real world exercise. In working with wrongful convictions from a broad perspective, it is important to be able to quickly filter those who are certainly guilty from those who have some chance of being factually innocent. In this post, I am going to present the summary of Mr. Howard's case from his appeal in Eddie Lee Howard, Jr. v. State of Mississippi.

I'm then going to open the comments to your observations on the case, with a twist to be described near the end of this post. Without further ado, I present the case summary of Eddie Lee Howard as presented by the Mississippi Supreme Court.
Eddie Lee Howard, Jr., appeals his conviction of capital murder and death sentence for the 1992 rape and murder of Georgia Kemp.
On the evening of February 2, 1992, 14-year-old Paris Lowery noticed smoke emerging from the home of her neighbor, 84-year-old Georgia Kemp. Lowery informed her mother of the smoke, and the Columbus, Mississippi, Fire Department was summoned. The firefighters found a small smoldering fire in the living room which had burned two holes in the floor. Stanley Clark, battalion chief with the Columbus Fire Department, found Kemp on the floor of her bedroom but was surprised because the fire did not generate enough smoke to cause death by smoke inhalation. Another firefighter, Tony Clark, checked for vital signs and concluded that Kemp was dead. Stanley noticed that Kemp's legs were bloodied up a bit and that she was partially exposed. He also found a bloody knife on the bed and a telephone with its line cut. At that point, Stanley and Tony exited the house so as not to disturb the scene.

An investigation ensued which found that Kemp was lying on her left side, exposed from the waist down, and wearing nylon stockings. Her nightgown had been pulled up and ripped open in the front. Kemp had been stabbed twice in the left side of her chest, and blood was found on the sheets of the bed from the headboard to the footboard. There was no evidence of forced entry or anything stolen from the house.

Dr. Steven Hayne performed an autopsy on Kemp's body on February 3, 1992. He found that Kemp had bruises and scrapes about the face, head and neck, multiple bruises to the left shin, and bite marks on the right breast, right side of the neck, and right forearm. Also found were injuries to both sides of the vaginal vault, which, according to Dr. Hayne, were consistent with forced sexual intercourse. However, no semen was found, but Dr. Hayne testified that did not mean that intercourse had not taken place. In addition, Kemp suffered injuries consistent with manual strangulation, but the cause of death was the two stab wounds to the left side of the chest which caused severe internal bleeding.

Eddie Lee Howard, Jr., consented to have dental impressions taken which were made by Dr. David Curtis on February 6, 1992. Dr. Curtis noted that Howard had a removable partial denture replacing the upper four front teeth.

After Kemp's body was exhumed, Dr. Michael West, a forensic odontologist, examined the dental impressions and the bite marks on Kemp on February 7, 1992. He found that Howard's upper teeth were consistent with the mark on Kemp's arm and that both Howard's upper and lower teeth were consistent with the marks on Kemp's neck and breast.

On the morning of February 3, 1992, one day after the murder, Howard paid a visit to Kayfen Fulgham, his former girlfriend and the mother of his adult child. Fulgham noted that Howard smelled of smoke, not cigarette smoke, but "like burnt clothes or something, you know, wood, like smoke."

Howard was arrested on February 8, 1992, and, at the time, was living with his mother a couple of blocks away from Kemp. On February 13, 1992, Detective David Turner was given a note from Howard stating, "Dear Mr. Turner, I need to see you as soon as possible. It's in relation to my case." Howard was taken to Turner's office and requested that Turner drive him by the crime scene to see if it would bring back some memories. Howard also told Turner the case was solved.

After Turner gave Howard an advice of rights form, Turner and Commander Donald Freshour drove Howard by Kemp's house, but Howard indicated it did not bring back any memories to him. Turner and Freshour then drove Howard past his mother's house two blocks away where he had been living and his aunt's house three blocks away. The three men then passed by Kemp's house again and returned to the Columbus Police Department. Howard was placed in Turner's office whereupon Turner testified the following transpired:
Again he told me that the case was solved and he told me that there was— uh—five or six other individuals involved and to keep investigating the case, that I would [ ] find out [ ] their roles [ ] in this case. Uh—and he asked me if I thought he was [ ] crazy. I looked at him and I said, ["]no, man—you know, I don't think you're crazy["] and he said ["]well I'm not. I'm not crazy["] and he said ["]I had a temper and that's why this happened.["] And when he said that, I mean shock just went across my body and I felt like at that point this was the guy that had actually committed the murder
We find no reversible error. Thus, we affirm the judgment entered by the Lowndes County Circuit Court in accordance with the verdict of guilty.
Here's the twist. I challenge you to limit any research to 15 minutes before you post your comment describing why Eddie Lee Howard is clearly guilty or why this case deserves further consideration.

Wednesday, November 9, 2011

Too Many Waynes II

Back in February, I posted a strange little bit about the number of people on death row having the middle name of Wayne. I'll repeat the post in its entirety, then I'll expand on it with some new findings. So once again, I present Too Many Waynes.
One of the fine books ever written is The Sneetches and Other Stories. One story in that collection is "Too Many Daves." At the risk of a stop-and-desist order, I include the story below in its entirety.
Did I ever tell you that Mrs. McCave
Had twenty-three sons, and she named them all Dave?
Well, she did. And that wasn't a smart thing to do.
You see, when she wants one, and calls out "Yoo-Hoo!
Come into the house, Dave!" she doesn't get one.
All twenty-three Daves of hers come on the run!

This makes things quite difficult at the McCaves'
As you can imagine, with so many Daves.

And often she wishes that, when they were born,
She had named one of them Bodkin Van Horn.
And one of them Hoos-Foos. And one of them Snimm.
And one of them Hot-Shot. And one Sunny Jim.
And one of them Shadrack. And one of them Blinkey.
And one of them Stuffy. And one of them Stinkey.
Another one Putt-Putt. Another one Moon Face.
Another one Marvin O'Gravel Balloon Face.
And one of them Ziggy. And one Soggy Muff.
One Buffalo Bill. And one Biffalo Buff.
And one of them Sneepy. And one Weepy Weed.
And one Paris Garters. And one Harris Tweed.
And one of them Sir Michael Carmichael Zutt.
And one of them Oliver Boliver Butt.
And one of them Zanzibar Buck-Buck McFate . . . .
But she didn't do it. And now it's too late.
Chuck Shepard, at his blog News of the Wierd, notes that a disproportionate number of notorious murderers have the middle name of Wayne. I hadn't thought about it before, but he's right. John Wayne Gacy immediately comes to mind. At Chuck's site, he presents his list of 224 instances. He stopped counting in March of 2008.

I decided to check my database of people executed by Texas for people named Wayne. I found 21 out of 464. That's almost 5% of the total. In each case, Wayne was the middle name. Never the first name, never the last name, always the middle name.

If Texas executes Michael Wayne Hall on 15 February, as they are scheduled to do, he will be number 22.
An insightful commenter noted that the execution of Michael Wayne Hall was to be followed by the execution of Timothy Wayne Adams. Both executions went off like clockwork.

For what it's worth, here is the my list of people executed by Texas having the middle name of Wayne, listed in the order of their date of execution.
Michael Wayne Evans
Billy Wayne White
David Wayne Spence (probably innocent)
Larry Wayne White
David Wayne Stoker (probably innocent)
Jonathan Wayne Nobles
Richard Wayne Smith
Alvin Wayne Crane
Thomas Wayne Mason
Richard Wayne Jones (probably innocent)
Randall Wayne Hafdahl, Sr.
Gerald Wayne Tigner, Jr.
Gary Wayne Etheridge
Allen Wayne Janecka
Dennis Wayne Bagwell
Lonnie Wayne Pursley
Melvin Wayne White
Derrick Wayne Frazier
Michael Wayne Richard
Kenneth Wayne Morris
Bobby Wayne Woods
Larry Wayne Wooten
Michael Wayne Hall
Timothy Wayne Adams
That's 24 by my count, roughly 5% of the 475 executed. I've identified three of them as being probably innocent. Assuming that the three each had a 70% chance of being factually innocent, that would be cause the expected number of innocent people in the collection to be 2.1. For the statistically impaired among you, 2.1 = 3 x 0.7.

Once again, a collection of death row names seems to include 10% who are (or were) factually innocent.

I have recently reviewed the cases of more than 300 inmates now residing on Texas death row. Most I gave only a cursory review, enough only to satisfy myself that there was little chance of their factual innocence. A few I spent more time with as I tried to get an initial sense of whether they might be factually innocent. I noticed as I worked through the list of 300+ names, a lot of them had the middle name of Wayne. I guess I shouldn't have been surprised, but I was. Here are the ones I found, listed in order of their arrival on death row.
Randall Wayne Mays
Demetrius Wayne Smith
Chris Wayne Shuffield
Robert Wayne Harris
Coy Wayne Wesbrook
Paul Wayne Slater
Carl Wayne Buntion
Billie Wayne Coble
Roger Wayne McGowan
Michael Wayne Norris
Nelson Wayne Mooney
That's 11 by my count, somewhat less than 4% of the 304 people I count as being on Texas death row. (I think my count is a bit low.) I don't believe any of them are factually innocent of the crime for which they are to die. On the other hand, I find 25 people on Texas death row who might be factually innocent. That's around 8% if they all pan out. I'm looking into the cases more carefully before I publish their names.

According to HowManyOfMe.com, there are 389,011 people in the U.S. with the first name of Wayne. That represents about 1.2% of the total population of the U.S., roughly 2.5% of the male population. (Almost all the people on death row are male.) None of the people executed or awaiting execution by Texas have a first or last name of Wayne.

I find a reasonable explanation for all this Wayne business at UClue.com. Researcher davidsarokin searched some databases other than criminal databases and found the Wayne is a common middle name for non-criminals as well as criminals. Wayne, as it turns out, is a far more common middle name than it is a first name. From a couple university student databases, he found that university students use Wayne 2 to 5 times more frequently as a middle name than as a first name. Among lawyers, Wayne is used 18 times more frequently as a middle name.

So finally I will be able to sleep. I no longer have to wonder if or why there are too many Waynes on death row.

Maybe instead I will fret about the 10% of 2.5 million prisoners I believe to be wrongfully incarcerated in our country.

Monday, November 7, 2011

Spectacular News: Hank Skinner Granted Stay of Execution

As per The Huffington Post.

Thursday, November 3, 2011

I Once Again Oppose the Impending Execution of Hank Skinner

Hank Skinner's case will constitute the last of the six cases I consider America's Executioner. One problem I have completing the book is not knowing what will happen to Hank Skinner six days hence. I find myself experiencing two diametrically opposed beliefs. First, I can't imagine that Texas would actually execute someone whom the Supreme Court just declared had a right to sue for the DNA testing. I just can't imagine that. On the other hand, I think that Texas so badly wants Skinner dead that they would stoop that low.

I can't resolve those two certain, contradictory feelings. I simply must wait for a resolution before I publish the book. In the meantime, I certainly don't want to stand mute with respect to the impending execution of Hank Skinner. Two years ago, I cut my blogging teeth with a ten-part series on Skinner's case. Events since have only solidified my position. I'll once again make my position clear and easy to understand.

Test the damn DNA.

Now without further ado, Chapter 7 of my impending book.

America's Executioner
Rick Perry's Betrayal of Executive Clemency


New Years Eve, 1993: Pampa, Texas
Elwin Caler had been stabbed multiple times in the chest and stomach. He was alive but mortally wounded. The neighbors found him sitting on their front porch. He was wearing nothing other than a pair of bloody underwear. The neighbors called for help.

Elwin died at the hospital before he could reveal the identity of his killer. He was Twila Busby's son, twenty-two years old, six-foot six-inches tall, 215 pounds, and mentally challenged. He lived at the house next to the one where he was found. His blood trail led back home.

There, on Twila's front porch, the police found a knife and some bloody gauze. There were no fingerprints on the knife. Perhaps someone had attempted to clean the knife with the gauze. Perhaps someone had cut himself and was attempting a bandage.

There was a bloody handprint on the front storm door. Investigators would later remove the glass pane from the door, cover the handprint with a sheet of stiff paper, and tape the edges of the paper to the glass. They would secure the glass and its handprint in the evidence vault.

Beyond the door were bloody boot prints originating from the copious bloodstains on the living room floor. Twila Busby's body lay face down in that blood, her head smashed fourteen times by an ax handle. The handle leaned against the couch nearby. Whoever swung the ax handle did so with considerable force. Twila's skull was fractured. Bits of skull were driven all the way to the middle of her brain.

The overhead light was shattered. It may have been an unintentional victim of the arcing ax handle. Broken glass was mingled with the blood below.

The medical examiner would later determine that Twila had been strangled, by two hands, before she was bludgeoned. Her larynx was crushed and one of her two hyoid bones broken. Whoever strangled her must have had strong hands.

Twila's pants were unzipped and her blouse was pulled up. The investigators used a rape kit: they swabbed for semen and combed for foreign hairs. The medical examiner would later determine that Twila's vaginal area was reddened from intercourse.

Twila's fingernails were broken. She had put up a fight. She may have scratched her assailant and captured his DNA. Investigators clipped her nails and secured the clippings.

The body of Randy Busby lay face down on the upper bunk in the bedroom he shared with Elwin. Randy was Twila's twenty-year-old son. He was partially covered with a bloody blanket. He had been stabbed three times in the back. The lower bunk, where Elwin slept, was free of blood. Elwin had been stabbed elsewhere.

There were some additional bloody handprints in the back of the house. One was on the frame of a door leading from the boys' bedroom to a utility room. It was only eighteen inches off the floor. Another was on the knob of the door leading from the kitchen to the utility room. A third was on the knob of the door leading from the utility room to the back yard.

Yet another handprint was on a garbage bag. Inside the bag, investigators discovered a second knife and a bloody dishtowel. No fingerprints were found on the knife. Perhaps someone had attempted to clean this knife as well.

The investigators also found an extra-large windbreaker on a chair in the living room. The windbreaker had blood spatter on it.

Hank Skinner, Twila's boyfriend and the only other member of the household, was nowhere to be found. He was last seen in a drunken stupor on the couch, in the living room, just a few feet from where Twila would fall into eternity.

The police found Hank Skinner three hours later. Hank was hiding in the closet of his former AA sponsor, Andrea Reed. He was drunk. He had blood on his shirt and pants. He had a cut on his right hand.

At trial, Reed would testify that Hank forced his way into her home. She would testify further that Hank confessed to killing Twila by kicking her to death. Hank told her that he killed Twila because he found Twila in bed with her ex-husband. Hank threatened to kill Reed should she attempt to call the police.

A Single-Minded Investigation
The authorities naturally believed they had solved the case. They focused their investigation on Hank Skinner, to the exclusion of all other suspects, dismissive of any evidence to the contrary. The authorities ignored, or example, the pleas of Howard Mitchell.

Howard Mitchell explained it was impossible for Hank to have murdered anyone. Hank had been completely incapacitated, passed out on the couch next to the remains of a vodka bottle. In fact, Mitchell had tried to rouse Hank to attend a New Year's Eve party with Twila at Mitchell's residence, but Mitchell could not wake Hank, much less get him to stand. That futile effort had occurred less than an hour before the murder.

Mitchell provided the name of a more likely suspect: Robert Donnell. Donnell was Twila's maternal uncle, a violent man with a propensity for knives, a history of choking people, and an incestuous lust for his niece. Donnell was so threatening, in fact, that Mitchell was frightened for his own life by merely speaking of him.

Donnell had, according to Mitchell, previously attempted to rape Twila. Donnell had, that very night, stalked Twila at the New Year's Eve party. So persistent was Donnell in his lewd advances towards Twila that she asked Mitchell to drive her home after only one-half hour at the party. Mitchell drove Twila home, returned to his party five minutes later, and learned Donnell had left the party soon after they did.

The State choose not to investigate Robert Donnell. The State was fixated on its target. It would sooner fly the case into the ground than divert its attention elsewhere.

The State tested the bloody handprints against those of Hank Skinner. Hank was good for the three handprints near the back of the house. The handprint on the trash bag, and presumably the handprint on the front storm door, belonged to someone else.

Perhaps the other handprints belonged to Robert Donnell, Twila's dangerous and lecherous uncle. It would have been mere child's play to check them against Donnell. He was a four-time felon, and his fingerprints must have already been in the system. The State choose, however, not to check. At least, the State has never reported checking the prints against those of Robert Donnell.

The State was also selective in its testing of the DNA. It tested but a small subset of the copious DNA evidence it collected from the scene. The State established a reference DNA profile from Twila Busby but not from her two murdered sons. The State established a reference DNA profile from Hank Skinner, but not from Robert Donnell. The State tested the blood found on Hank's shirt and pants, but did not test for DNA on the vaginal swabs.

Perhaps most shockingly, the State failed to test the scrapings from beneath Twila's broken fingernails. Hank Skinner had no scratches on him. Testing the fingernail scrapings could only complicate the case.

The limited test results showed that the blood on Hank's shirt came both from his own wound and from Twila. The blood on his pants came from his wound, from Twila, and from Elwin. Coupled with his confession to Andrea Reed, the case was a slam dunk. All that remained was a conviction and a syringe.

And if the State was extremely lucky, Hank would end up with an attorney who would not insist that all the DNA and all the fingerprints be tested.

Harold Comer
It is nothing short of astounding that Harold Comer was assigned by the court to be Hank Skinner's lead counsel. Comer, after all, had spent a portion of his previous career attempting to throw Hank in jail rather than keep him out. In an earlier career, Harold Comer had been the District Attorney for Gray County, and Hank Skinner had a checkered past.

Hank's two non-violent felonies would in fact be used against him in the death-penalty phase of the trail. Comer had earlier prosecuted Hank for those very felonies, and would now have to defend him against them if the case trial made it as far as the punishment phase.

Some might describe Harold Comer's transition from Hank's prosecutor to Hank's defender as blemished, perhaps even checkered. It seems Comer had been run out of the District Attorney's office because he embezzled substantial quantities of drug forfeiture funds, and because he was he addicted to drugs. One failing was possibly tied to the other, and neither was of inconsequential magnitude. After Comer was ejected from his job, the IRS tagged him with a $90,000 bill for unreported taxes.

Harold Comer needed to find honest work, and he needed to find it quickly. Luck was on his side, just as it was would soon be on the side of the State. Judge M. Kent Sims had been assigned to handle the trial of Hank Skinner. That wasn't just good news for Harold Comer, it was great news. Comer had been a close political supporter of Judge Sims. Sure enough, Judge Sims assigned Harold Comer to represent Hank Skinner.

That was just the break Comer needed, even though under normal circumstances the State of Texas didn't pay very well for defending indigent defendants. In Actual Innocence, Jim Dwyer writes:
In too many cases, serving as counsel to the indigent is a fast way to join their ranks. For instance, in Mississippi, the maximum amount for non-death penalty cases is $1000 ... In certain rural sections of Texas the limit is $800.
Harold Comer had good reason to expect he would earn somewhat more than the $800 cited by Jim Dwyer in 2003. Hank would be tried in 2005, so there was a small bit of inflation to be considered. And while Palma was certainly a rural section of Texas, it wasn't necessarily the rural section to which Jim Dwyer referred. Most significantly, Hank's case was a death penalty case. That would bump up the $800 figure by a fair amount.

Still, those adjustments seem inadequate to explain how Harold Comer came to be paid $86,000 for unsuccessfully defending Hank Skinner. It was the largest fee ever paid by Texas to a court-appointed attorney.

The State's Case 
The prosecution presented a formidable case. Hank Skinner was absolutely in the room when Twila Busby was being murdered: he had her blood on his shirt and his pants. He was also near Elwin Caler when Elwin was being stabbed. He had Elwin's blood on his pants.

Hank also had a cut on his hand, an unintentional wound, the State claimed, resulting from striking the shoulder blade as he stabbed Randy Busby to death. During one thrust, the knife must have hit bone. That caused Hank's right hand to slip down the knife, and that resulted in the cut found on Hank's hand.

Hank's bloody handprint was found on the doorway to Randy's bedroom. The State argued Hank left it there after Hank murdered Randy, after Elwin tackled Hank as Hank was leaving the room.

Hank's bloody handprints were found on the doorknob of the back door. The State argued that Hank left it there as he made his escape.

After murdering Twila, Elwin, and Randy, Hank made his way to the home of Andrea Reed, his earlier AA sponsor. There he forced his way into her home and kept her hostage for more than three hours. He confessed to her that he murdered Twila. He threatened to kill Reed herself if she tried to contact the police.

After a three-hour manhunt, Hank was discovered in Andrea Reed's mobile home. He was hiding in a closet. Hank's escape provided proof that he was not too drunk to kill. After all, he found his own way to Andrea's home, entered there without her knowledge, cleaned his own wound, attempted to stitch up his own wound, warned Andrea against notifying the police, went to the bathroom by himself and had the presence of mind to hide as the police narrowed their perimeter about him. Hank had even confessed to Reed. Those were not the actions of an innocent person.

The Defense Case 
Hank's defense was that he was indeed at the murder scene, but he was incapacitated. His blood alcohol level was 0.21. His codeine level was three times that of a normal therapeutic dose. He was simply too intoxicated to have killed Twila, Elwin, and Randy.

Furthermore, Hank did not have the strength to have committed the murders. He had previously injured his right hand, seriously, nearly severing his thumb. The wound became infected. Surgical intervention resulted in loss of one-third of the muscle mass and one-half of the gripping force. With that hand, Hank would have been unable to wield the axe handle and the knives. He would have been unable to strangle Twila, to crush her larynx and break her hyoid bone in the process. Hank would have been unable to fend on the much larger, much younger Elwin, who must have been right there when Twila's blood spattered on Elwin's clothes.

Instead, Hank must have cut himself on glass from the broken light fixture when he fell down as he staggered from the house. That's also how his own blood must have come to be on his clothes. Hank was staggering as he rose from his stupor, fell down, cut his hand, and got blood on his clothes. Indeed, the State's own blood expert testified that the bloodstains on Hank's clothing were not spatter, but contact transfers. The blood was not splattered in droplets during a stabbing or bludgeoning. Rather it was smeared on Hank's clothing when the clothing came in contact with spilled blood.

Regarding the DNA that neither the State nor the defense had tested, Harold Comer attempted to use that as reasonable doubt. If the State was so confident of Hank's guilt, Comer would argue, why didn't the State test all of the DNA?

That left the jury with a parallel question: If the defense was so sure of Hank's innocence, why didn't the defense have all the DNA tested?

The jury found Hank Skinner guilty of murder in the first degree. Hank was sentenced to death by lethal injection.

Andrea Reed's Recantation
After the trial, Andrea Reed recanted her testimony. She claimed she lied to the police the night that Hank was discovered in her mobile home. She claimed she lied to the jury as well. I offer most of her affidavit below:
My name is Andrea Joyce Reed. ... Several of the things that I said in my written statement to Ogle and my trial testimony are false. I lied because of implied threats and I was intimidated by Officer Katie Gerhardt and the district attorney's investigator, Bill McMinn.

This is what really happened. At about midnight on the night of December 31, 1993, I was in the bedroom of my trailer house ... with my daughter, Jessica, and son, Kris, when I heard someone pounding on the wall. I asked the person to identify himself and I heard a voice that I recognized as Hank shouting, “Andy, I’m hurt. Please let me in" or words to that effect. At first, I told Hank to leave and threatened to call the police if he did not do so. Hank was an old friend, but I did not associate with him because he was an alcoholic and drug user.

When I told Hank to leave, he said that he had been shot and pleaded with me to help him. I turned on my porch light and opened the front door so that I could see him. Hank had a lot of blood on him. I decided to help him because I felt sorry for him. I went back into the house, put my dog in the bedroom with my children, closed the door to that room and went outside again. Hank was still standing in the front yard. I invited him to come into the house. He stumbled and fell over backwards when he tried to climb up the porch stairs. I caught him or helped him to get up. He had to lean on my arm as we walked into the house. He was with me for over three hours before he was arrested.

Very shortly after Hank was taken into custody, I heard Officer Katie Gerhardt tell one of my curious neighbors that he could not enter my house because it was "a triple homicide crime scene." I assumed that this meant that Hank was accused of murdering three people. I did not understand how my house could be a crime scene because no crime was committed there, but I feared that the police believed that I was involved in the offense.

My fear of being falsely accused increased when McMinn and Gerhardt told me that they believed that Hank had an accomplice and asked me where that person was. I told them I did not know what they were talking about, but they apparently did not believe me because they kept asking the same question. Gerhardt finally told me that I could be charged with being an accessory after the fact if I did not cooperate with them. I did not understand why she made that threat because I believed that I was cooperating .

I told my first lie when Gerhardt and McMinn asked me how Hank got into my house. I was afraid to admit that I helped him inside because I did not want to say anything that could later be used to suggest that I offered a murderer a place to hide from the police who were trying to arrest him. I told McMinn and Gerhardt that he entered the house without my consent and I did not know how. Gerhardt said that she did not believe me. She asked me why I did not try to leave my house and get help. I told her that I did not want to leave my kids alone with Hank. She warned me that I could be charged with a crime if I invited him into my house knowing that the police were trying to arrest him.

My written statement to Ogle left the false impression that I only treated Hank's wounded hand because he entered my house against my will and threatened to kill me. I did not admit that I invited him in because I was afraid that the police would arrest me for helping a wanted man.

I falsely claimed in my written statement that Hank warned me, "don't call anyone or I'll kill you" when he saw me pick up the telephone. Hank did tell me not to call anyone, but he did not threaten to kill me.

I falsely claimed in my written statement that I believed that Hank was capable of killing me because of his intoxicated condition. The truth is that he was much too drunk or high on drugs to physically carry out such a threat. I know what Hank is capable of doing when he is intoxicated because I saw him in that condition many times. When he arrived at my house, he was too intoxicated to strangle Twila Busby until her neck broke, repeatedly hit her on the head with an ax and precisely stab her two sons to death .

I also lied in my written statement about two small details because I did not want the police to believe that I voluntarily did anything for Hank. I said that Hank took his shirt off and hung it over a chair in my living room. The truth is that I helped him remove his shirt and I put it on the chair. I said that Hank washed blood off of his watch. The truth is that I washed off the blood.

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 informed Ogle that I did not want my daughter, Jessica, to be a witness because it would be a traumatic experience for her. Ogle told me that it was up to the district attorney. I was very upset when I received a letter from John Mann notifying me that Jessica would be subpoenaed as a witness. I sent her out of town to stay with a relative shortly after I received that letter. McMinn warned me that I would be arrested if I did not tell him where she was. I told McMinn that it was his job to find his witnesses -- not mine. McMinn finally promised that my daughter would not have to be a witness if I testified "as instructed by John Mann."

When I arrived in Ft. Worth for the trial, Gerhardt and McMinn told me that I could not go anywhere or do anything without a police officer or prosecutor being present. I was not allowed to eat alone in a restaurant, receive visitors at my hotel, make phone calls or take a walk by myself. Gerhardt even insisted we share a room. I felt like a prisoner. I was told that all of this was done for my own safety, but that explanation made no sense because Hank was in jail and no one had threatened me. I was more afraid of the cops who were supposedly protecting me than I was of Hank on the night of the murder.

Shortly before I testified at the trial, Assistant District Attorney Tracy Blades gave me a document in a clear plastic folder and told me, "read it. This is your part." She explained that the document was a "condensed" version of my statement to Ogle. It placed several things that I said way out of context, but I cannot recall what they were.

I tried to follow the script that Blades gave me because that is what I was instructed to do and I still wasn’t sure they (Law) would leave my daughter alone, but I did not believe my testimony was going to be helpful to the State. I did not understand how anything that Hank did or said at my house on the night of the murders could possibly show whether he was guilty or innocent.

When Mann asked me how Hank was able to get in to my house after I told him to leave, I falsely answered, "I don't even know." I repeated what I told the police on the night of the murder because I was afraid to admit that I lied to them and I did not believe that the truth could make a difference. I lied again for the same reason when Mann asked me what Hank did with his shirt and watch.

I falsely testified that Hank walked to the bathroom by himself when I went to make a telephone call because I was still afraid to admit that I did any thing to help him. The truth is that I had to help Hank walk from the kitchen to the bathroom before I went to make the call because he was so intoxicated that he could not keep his balance.

I falsely testified that Hank warned me that he would kill me if I tried to call anyone. I lied to the jury about that threat because I said the same thing in my written statement to Ogle and I was afraid to admit that it was false. The truth is that Hank told me not to make a call without threatening to kill me.

I gave the jury the false impression that Hank’s statements about finding Twila in bed with her ex-husband and killing her were not related to each other. The truth is that Hank said that he thought he tried to kick Twila to death because he found her in bed with her ex-husband. The questions that John Mann asked me did not allow me to explain this to the jury.

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.

I am not sure why I lied about this on the witness stand, but I may have repeated what was in the condensed version of my statement to Ogle that Blades prepared for me. It is also possible that I gave the answer that I thought John Mann wanted to hear.

After Hank was sentenced to death, I read news stories about the trial and began to understand the importance of my testimony. The lies that I told to protect myself made it appear as if Hank broke into my house, held me hostage and confessed to the murders. The truth is that I invited a harmless drunk into my house and listened to three hours of meaningless gibberish. I have no idea who killed Twila Busby and her sons, but I pray that I get another chance to tell the truth about what I do know to a jury because I do not want to be responsible for the execution of a man who may be innocent .


Andrea Joyce Reed
To a jury, eyewitness trial testimony is a powerful thing. To an appellate court system, a post-conviction recantation is pretty much worthless worthless.

Recall a case already discussed, that of Larry Swearingen. Dr. Joye Carter recanted her damning testimony that Melissa Trotter was killed twenty-five days before her body was discovered. That placed Trotter's date of death on the day she was last seen alive in the company of Swearingen. Had Dr. Carter initially and properly established Melissa's time-of-death as just a few days prior to discovery of her body, then Swearingen would never have been brought to trial. He would have been in jail when Melissa Trotter was killed. Despite Dr. Carter's recantation, and despite testimony and affidavits from numerous renowned scientists supporting the recantation, Texas has twice since attempted to execute Larry Swearingen.

Consider also the case of Anthony Troy Davis. Even though seven state witnesses fully or partially recanted their damning trial testimony, the people of Georgia nonetheless executed him.

Consider finally the case of Gary Dotson. Sixteen-year-old Cathleen Crowell accused Dotson of raping her. Dotson was convicted based on Crowell's testimony and on false forensic evidence concerning blood types and hair matching. Dotson was convicted even though he did not match the original physical description provided by Crowell, even though four witnesses placed him elsewhere at the time of the alleged rape. Crowell later recanted, eventually explaining that she had claimed rape as a cover story for consensual sex with her boyfriend. Despite her recantation, charges against Dotson were not dropped until a decade after his conviction, four years after Crowell's recantation, one year even after DNA testing proved Gary Dotson did not rape Cathleen Crowell.

Appellate courts absolutely frown on recantations. Despite Andrea Reed's recantation, and despite critical DNA evidence pointing to an alternate assailant, Texas would come within an hour of executing Hank Skinner. Rick Perry would stand mute.

There is, however, good reason to believe Andrea Reed's recantation was truthful: she stood by her recantation even when threatened by the District Attorney John Mann with felony perjury for doing so. After the State learned of her affidavit, Mann called her before a grand jury. Skinner's appellate team obtained that transcript through an open-records act. From the transcript, we learn of the threat, made soon after Andrea Reed invoked her right to counsel.
Do you understand that by signing whatever it was they had you sign that they got you to confess to having committed the felony of aggravated perjury? Did this lawyer you want, Mr. Losch, tell you that he was setting you up to take a fall for aggravated perjury by giving this statement that you gave recently? Is that really what you want to do? Just rely on Mr. Losch who has now gotten you to ... admit having committed the felony? If that's what you want to do, that's your privilege.
Threatening perjury for those who recant is a time-tested technique for minimizing and reversing recantations. In the case of Cameron Todd Willingham, for example, the State's snitch recanted then recanted his recantation. He later recanted the recantation of his original recantation, but only after he believed the statute of limitations had run out.

In the case of Hank Skinner, on the other hand, Andrea Reed was willing to face a felony perjury charge rather than withdraw her recantation. She had no good reason for facing such serious legal repercussion other than wanting the truth to be finally told.

Evidence of an Alternate Suspect
Assuming Andrea Reed was truthful in her recantation, the jury that convicted Hank Skinner never learned that Hank was too inebriated to climb a few stairs or to remove his own shirt. Nor did they know that the police, early on, suspected another person was involved in killing Twila, Elwin, and Randy.

It is easy to understand why the police thought someone else was involved, that Hank had an accomplice. There were bloody bootprints leading to the front door, though Hank seemingly went out the back. The bootprints were size 11-12, way too large for Hank Skinner. Hank stands 5’ 9” tall and then weighed a mere 140 pounds. His shoe size is 9½. He was found wearing socks that night, but no shoes. He owned no boots, nor were any found.

Elwin, on the other hand, was a large person, and Elwin apparently left through the front door, mortally wounded. He was found wearing only a pair a bloody underwear, though. It seemed likely, therefore, that someone other than Hank or Elwin made the bootprints.

Also found were bloody handprints on both the front and back doors. It was unlikely that Hank went out both doors. Hank’s handprints were on the back door knob, and suggested Hank went out that way. The handprint on the front storm door, however, is another story. The investigators removed the glass pane and placed it in the sheriff’s evidence vault for safekeeping. Someone later scraped the handprint off the glass while the pane was under control of the sheriff. It is generally not known, to this day, to whom that print belonged.

Found in the front of the house were an apparently clean knife and some bloody gauze. Someone may have wiped down that knife with that gauze. Alternatively, someone may have attempted to bandage his own wound with that gauze. Unless Hank Skinner somehow went out both the front and rear doors, unless somehow Hank Skinner wore and then disposed of size 12 boots, the person who left the knife and bloody gauze on the porch was almost certainly not Hank Skinner.

Found back inside the house was a trash bag containing an obviously bloody knife and a bloody dishtowel. Someone apparently wiped prints from that knife with that dishtowel; no prints were found on the knife. Whoever put the items in the trash bag left a bloody handprint on the bag. That print was tested against Hank Skinner but not against Robert Donnell. Since the print did not belong to Hank Skinner, he was almost certainly not the person who wiped down that bloody knife with that dishtowel.

There was also a blood splattered, extra-large windbreaker found lying across a chair just a few feet from where Twila fell. The windbreaker was a DNA gold mine of blood, hairs, and sweat. Though the windbreaker was far too large to fit Hank Skinner, the State would test none of DNA from the windbreaker. Instead, the State would have Twila’s mother testify that Twila liked to wear over-sized coats.

The DNA Tested before Trial
Twila’s blood was found on Hank’s shirt and pants. The State argued that blood came to be there as Hank bludgeoned Twila with the axe handle, after first having strangled her. The defense claimed it came to be there as Hank fell to the floor while trying to rise from a drunken stupor, thereby coming in contact with Twila’s blood, either on her person or on the floor.

Twila’s blood was found also on Elwin. Applying the same logic it applied to the blood found on Hank Skinner, the State could have argued that the blood found on Elwin came to be there as Elwin bludgeoned his mother with the axe handle, after first having strangled her. The State, of course, made no such argument. The defense, on the other hand, argued that Elwin must have been standing in the living room near his mother as she was being bludgeoned. They argued further that a stuperous Hank Skinner, with a partially disabled right hand, would have been unable to kill either of them, much less both of them.

Elwin’s blood was found on Hank’s pants. The prosecution argued that it came to be there as Hank stabbed Elwin while they were in the bedroom. The defense argued that it came to be there as Hank fell to the floor while trying to rise from a drunken stupor, thereby coming in contact with Elwin’s blood, which Elwin had spilled in a failed attempt to save his mother. Alternatively, they argued Elwin's blood came to be on Hank Skinner as Elwin attempted to roust Hank from his slumber and help him from the house.

Randy’s blood was found on the blanket that partially covered him. The State argued that the blood came to be there as Hank stabbed Randy three times in the back while Randy lay on the top bunk. They argued further that Hank cut himself while stabbing Randy, that the knife hit bone and Hank’s hand slid down the knife. That is presumably why the State tested the blood on the blanket. It expected to find Hank’s blood there. Hank's blood, however, was not on the blanket, nor was Randy's blood anywhere to be found on Hank Skinner.

Hairs found on Randy’s blanket, back, and cheek came from Randy himself. Once again, the State presumably expected at least some of the hairs to belong to Hank. None of them did.

The handprints near the doorway of the boys' bedroom came from Hank. The print was only eighteen inches above the floor. The prosecution argued that it came to be there after Hank stabbed Randy and cut his hand in the process, and after Elwin tackled Hank as Hank was leaving the bedroom. The defense argued that the blood came to be there as Hank stumbled while trying to make his way out the back door. The defense argued further that Hank had cut his hand on the broken light fixture glass when he fell to the floor in his drunken stupor. Alternatively, his appellate counsel would argue that Hank might have been wounded by the same person who killed the others in the household.

The handprint on the back door knob came from Hank. The defense argues that Hank left it there as he exited the house in a stuperous state. The print on the back door left unexplained the evidence that someone else exited through the front door.

Fresh blood drops were found on the sidewalk, near the front door of the house where the murders took place. Those drops were tested. The DNA from those drops belonged not to Hank Skinner, but to an unidentified male.

The DNA Tested after Trail
After the trial, District Attorney John Mann succumbed to public pressure and sent additional DNA material for testing. Mann's intent was to prove once and for all that Hank Skinner was guilty.
I'm going to test it all and see if I can't put a few more nails in that man's coffin.
The results were not as DA John Mann had hoped. Mitochondrial DNA testing of two hairs found clutched in Twila's hand was inconclusive for one hair. The DNA from the other hair clutched in Twila’s hand came not from Hank Skinner, but from a maternal relative of Twila or from Twila herself. This finding posed a severe problem for Mann. He had earlier claimed the hairs definitely “came from the head of her assailant as Twila yanked out his hair during the struggle for her life which she ultimately lost.”

The other DNA results finally reported were no more helpful to Mann's effort to further nail closed Hank's coffin. Keep in mind, when reviewing the summary below, that Mann sent comparative DNA samples for Hank Skinner and Twila Busby only. When the term unidentified male appears, that unidentified male could be Robert Donnell, Elwin Caler, Randy Busby, or someone else entirely.

Blood found on the gauze possibly used staunch bleeding or to wipe fingerprints from the front porch knife was from an unknown male. Hank Skinner was excluded as the contributor.

Blood on a cassette tape found in the boys' room was a mixture from two unknown males. Hank Skinner was excluded as a contributor.

Other hairs sent for testing excluded Hank Skinner as the donor, but did not exclude Twila or a maternal relative of Twila’s as potential donors.

None of the DNA tested after trial in any way implicated Hank Skinner.

All of the DNA tested after trial excluded Hank Skinner as the contributor, or was inconclusive.

The DNA Not Yet Tested
For some reason unexplained, not all the DNA evidence sent for testing was actually tested. Alternatively, the DNA was tested but not reported.

The swab from the rape kit was sent for testing along with the hairs, the bloody gauze, and the cassette tape. The rape kit evidence was simply returned, allegedly untested, without public explanation.

The fingernail scraping evidence was sent for testing along with the hairs, the bloody gauze, the cassette tape, and the rape kit evidence. The fingernail scraping evidence was simply returned, allegedly untested, without public explanation.

The broken fingernails nonetheless exculpate Hank Skinner. It is likely Twila broke them as she fought for her life, possibly as she clawed at her assailant's head and came away with several of his hairs in her grasp. The State doesn't need DNA from the broken fingernails to verify they weren’t broken while clawing Hank Skinner. He had no scratches on him when he was arrested for her murder.

In addition to all the DNA material tested both before and after the trial, and in addition to DNA material sent for testing but never tested, there remains to this day substantial DNA material never tested.

The blood, hairs, and sweat from the extra-large windbreaker resting just a few feet from Twila’s body have never been tested.

The blood from the handprint left on the front storm door has not been tested. Alternatively, that blood has been tested but not reported. Someone scraped the handprint from the pane. The status of that scraped blood sample is now unknown.

The dishtowel from the trash bag was not tested, despite a possible bloodstain on that towel. It is possible the towel was used to wipe the fingerprints from the knife that was found in the same trash bag. That is the same trash bag that had the handprint that did not belong to Hank Skinner.

The blood on the knife in the trash bag was not tested, though it is likely that knife was the one used to stab both Randy Busby and Elwin Caler. That knife was found in the trash bag that had the handprint that did not belong to Hank Skinner.

The knife found on the front porch was not tested for the presence of blood. It appeared to have none. It seems not to be the murder weapon. That suggests that the blood on the gauze originated elsewhere, possibly from the killer.

Most significantly, no DNA sample was ever taken from Robert Donnell. The police never requested a saliva, blood, or semen sample from Twila's predatory, maternal uncle.

Uncle Robert
Howard Mitchell held a New Year's Eve party on the night of the murder. He picked Twila Busby up at her home and drove her to the party. The two of them left Hank behind because Hank was out cold. Mitchell had been unable to rouse him, even after efforts to physically lift him from the couch.

Mitchell returned Twila to her house soon after she arrived at his party because she was being harassed by none other than her predatory uncle Robert Donnell.

In September of 1994, nine months after the murder and six months before the trial, Howard Mitchell was interviewed by Bill McMinn, an investigator from the DA’s office. Below are excerpts from that interview.
Well, we call him Uncle Robert. His name is Robert Duvall [Donnell], I think something like that.

Well, according to my daughter, she said [he left] right after I took Twila home. … He’s real quick tempered and stuff, you know, so I really didn’t hang around with him or nothing. You know, I’d be nice to him, he’s nice to me and all that.

He had … this girl named California Kim. … Him and her got in some kind of drug deal where she was supposed to buy some drugs, took him $350 … He wind up in an empty handed deal and he was over at my house one time and he grabbed her by the throat, slammed her up against the wall and said, “I’ll kill you, you son of a bitch," and she was pregnant, you know. And we stopped him, you know, talking and stuff.

And then Doug and this Uncle Robert and Sherry, I don’t know her last name, but they was out at the lake. … Well, Doug, he gets drunk and passes out. Sherry, she was passed out too. But anyway, she wakes up and he’s … got her pants off and trying to get her panties off and she got to kicking and screaming and she woke Doug up, you know. And so Doug talked him out of that bullshit, you know.

And then later on, why he come to town and he stuck a knife in Doug’s stomach, like that, and said, I’ll kill you, you son of a bitch, and then he got it up to his throat and said, I’ll cut your fucking head off. Now that’s strictly confidential, because Doug told me don’t ever tell nobody, but to me.

I’m talking about a man’s life, you know. I’m talking about Hank’s life. I don’t like Hank, you know what I mean? I don’t really dislike him, but I’m not -- we’re not compadres or none of that shit, you know. But I just don’t, my conscience won’t let me keep my mouth shut, you know. I don’t want to see nobody killed that didn’t do it, you know.

I told a detective that, I sure did. I told Harold Comer that. And that’s the truth, too. I’ll take a lie detector test or anything else on it, you know.

I don’t like being involved in none of this shit, you know what I mean?

All I’m doing really basically is I think the man they got [Hank Skinner] is innocent and the other guy [Robert Donnell] is guilty. I really believe that.

I believe this much. If he [Robert Donnell] finds out I said anything like I said, he’s going to come over here and try to kill me and I ain’t got a goddamn gun or nothing else.

And I could be wrong, you know. I could be wrong, but I don’t think so.
McMinn, the DA investigator, was surprised by what he had just learned. He told Mitchell:
Well that’s the kind of information we didn’t have, you know. ... I’m going to have to talk to him, but I sure won’t tell him where my information came from, but I’m going to have to talk to him. I sure am.
If McMinn ever talked to Donnell, that interview has been suppressed along with so much other evidence in this case.

At trial, the defense introduced evidence that Robert Donnell was a heavy-set ex-convict with a hot temper; that he had sexually molested a girl; that he had grabbed a pregnant woman by the throat; that he usually kept a knife in the trunk of his car; that he became drunk at the party.

Mitchell testified that he "sensed that [Donnell] would be a danger" because he had "a certain kind of hate" in his eyes. Donnell followed Twila around as if he was stalking her and made crude sexual remarks, even though Twila was his own niece. Twila became agitated. Within a half-hour of her arrival at the party, she asked Mitchell to take her home.

Mitchell testified further that Twila was "fidgety and worried" when he dropped her off in front of her house at about 11:00 to 11:15 p.m. Twila got out of his car and walked to her front door without any assistance. When Mitchell returned home to his party, Donnell was no longer there.

Neither the police, nor the DA, nor the defense investigated Donnell with any great interest. Critical exculpatory evidence was never presented in Skinner’s defense.

Two and a half years after the trial, Howard Mitchell filed the following affidavit.
I came to know Twila’s uncle, Bob Donnell, when he moved to Pampa a few years before Twila was killed. He showed up at my house every once in a while. I had seen him get violent with people and he always carried a knife. I pretty much tried to stay away from Bob Donnell.

Twila told me about problems she had with Bob Donnell. About four months before she was killed, Twila told me Bob Donnell had been making sexual advance towards her and that he had even tried to rape her. I gave this information to the investigator who works for Hank Skinner’s trial attorneys. She told me this several times.
It’s not clear why Mitchell only revealed this information about an attempted rape almost four years after the murder, well after the trial. It seems that Mitchell tended to enhance his memory as time went on. His testimony at trial, for example, included considerably more detail than he included in his interview with the DA investigator. In fact, in that initial interview, when asked if Donnell and Twila had any problems at the party, Mitchell replied:
Not that I noticed. … I wasn’t paying that much attention.
On the other hand, Mitchell’s story about Donnell’s attempted rape of a woman named Sherry was later confirmed by Cliff Carpenter, an investigator for Skinner’s appellate team. I quote below from his report, which included other alarming evidence about Robert Donnell that the jury never heard.
I have spoken with Willie Mae Gardner, Donnell's widow, who told me that Donnell occasionally talked about having killed a man during a pool hall fight in a small town near Oklahoma City. On some of these occasions, Donnell showed Gardner a scar of what he said was a knife wound from the fight.

I have also spoken with Deborah Ellis, the granddaughter of Willie Mae Gardner, who told me that she witnessed Donnell "choke" and "push around" Gardner numerous times.

I spoke with Jimmy Hayes, a close acquaintance of Donnell. Hayes told me that Donnell always carried a large knife either on his person or in his pickup truck. Hayes also told me that once Donnell had attempted to slash Hayes with the knife, and cut Hayes' shirt but did not injure him. I have obtained the shirt, which has a cut across the left breast pocket.

Hayes also stated that on several occasions, Twila Busby called him to come over to her house to protect her because she was as afraid of Donnell. Hayes' wife Dorinda confirmed this.

I have spoken to Sherry Barnette, who told me that summer before the murders of Twila Busby, Randy Busby, and Elwin Caler, Donnell attempted to rape her at a lake near Pampa. During the assault, Donnell tried to "choke her down." Barnette also said that she had been at Twila Busby's house on several occasions when Busby had to run Donnell off because of his temper.

According to Willie Mae Gardner, on the night of the murders Donnell arrived home very late or in the early morning hours. The police came to Donnell's home to notify him of the deaths. Gardner recalled that the police knocked at the door at approximately 6 a.m. the morning after the murders, and Donnell said he would go see who was there. He returned a few minutes later and stated Twila and the boys had been killed. Gardner specifically recalled that Donnell was emotionless when he conveyed this news.

According to Willie Mae Gardner, Donnell repainted his pickup truck within a week of the murders. The truck had been white and Donnell painted it blue.

According to Deborah Ellis, within a week after the murders. Donnell also thoroughly cleaned out the interior of his pickup truck. He took out the interior carpet from the floorboard and thoroughly washed the plastic seat covers and interior of the truck with a water hose. This was unusual, as according to Willie Mae Gardner, Donnell was a man who had to be told to take a bath.
Deborah Ellis, mentioned above, would later testify at a federal habeas proceeding. She expanded on Robert Donnell's extreme and unusual efforts to clean his truck. It was a small, unremarkable truck, Japanese made. It was simply "an old beat up truck," a "plain Jane truck," a "clunker." Until that day soon after the murders, she had never witnessed Donnell wash the truck. On that day, however, her attention was drawn to his multi-hour effort to see that the truck was thoroughly cleaned.

Donnell stripped the interior down to the metal floorboards. He removed the seats and all the carpeting. Using a large five-gallon bucket containing a solution of Pine Sol, or something that smelled like Pine Sol, he thoroughly scrubbed the stripped down interior, then hosed it. He replaced the seats. He never replaced the carpets.

A few days later, he repainted his unremarkable truck using a paintbrush and a spray can.

Robert Donnell later died in a highway accident.

Deborah Ellis testified as well that her step-grandfather, Robert Donnell, owned and regularly wore a tan windbreaker like that found next to Twila Busby's body.

Efforts to Test the Untested DNA
It has been sixteen years since Hank Skinner was convicted. He has spent the intervening 6000+ days in a small, stark cell, proclaiming his innocence. His appeals have focused in large measure on having the untested DNA tested before he is executed. The State has so far successfully prevented such testing. In a brief to the Supreme Court, the State argued that Hank Skinner was merely "dragging out his case and seeking to impose unacceptable burdens on government resources and the victims’ dignity.”

Had the State actually tested all the evidence before trial, as they should have, or had they tested all the evidence after trail, the case would not likely have dragged out anywhere near this long, nor would the government have been unacceptably burdened, nor would the victims' dignity have been for so long in the public's conscious. The DNA testing would have revealed the killer to be either Hank Skinner or another person. In either case, I would not be writing of him today.

The State's initial failure and eventual refusal to test all the evidence, however, has in fact dragged the case out beyond all reason. The State has been so single-minded in its efforts to see Hank Skinner executed without testing that one might question its motives. As a minimum, one might suspect that the State fears the outcome of the testing.

One might even suspect that the State already knows what the outcome would be.

The State, after all, does seem to be particularly incurious about the person who left the bloody handprint on the plastic trash bag, the bag that held the bloody knife, the knife that had seemingly been thrust multiple times into each of the three victims. The State was certainly curious enough at the time to check that handprint against Hank Skinner. When it failed to get the desired match, however, the State seemed to lose all interest.

Even more suspiciously, the rape kit and the fingernail scrapings were sent for post-trial DNA testing along with the hairs grasped in Twila Busby's hand. There has been no explanation to this day why the rape kit and the fingernail scrapings were not tested, assuming they actually were not. Alternatively, the testing was conducted and the results have been suppressed all this time. In either case, an explanation still seems to be in order. Perhaps Governor Rick Perry would be willing to explain, given that he claims to have never lost a moment's sleep about executing an innocent man, given that he allowed Hank Skinner to come within an hour of being injected with lethal fluids.

Fifteen years to the month after convicting Hank Skinner of murder and sentencing him to death, the State finally came within an hour of executing Hank Skinner, all the while managing to prevent testing of the probative DNA evidence. Even then, even as Hank Skinner was being served his last meal, Rick Perry stood mute. Supreme Court Justice Antonin Scalia, however, did not.

The juxtaposition of those two names in contrast is striking. Rick Perry is widely known for his unwavering support of the death penalty and his confidence that no innocent person has ever been executed. So too, however, is Justice Scalia. It was Scalia who wrote in Herrera v. Collins that it would not be unconstitutional to execute a factually innocent person, as long as that person had been provided due process. It was Justice Scalia who wrote of his confidence that we had never executed an innocent person, which a governor would never allow such a thing to happen. Yet Justice Scalia saw a problem where Rick Perry could detect none.

Because of Scalia's intervention, Skinner's appellate team was eventually allowed to make its case before the entire Supreme Court that Skinner had a right to sue the district attorney in federal court for access to the DNA evidence. The Supreme Court agreed. The Court did not order that the testing be done, or that the evidence be turned over to the Skinner for testing. The Court ordered only that Skinner could sue in federal court, under a civil rights statute, for access to the DNA evidence. The lower federal court would decide the issue.

The State, undeterred by the adverse ruling of the U.S. Supreme Court, responded simply by setting another execution date for Hank Skinner. The State now hopes to execute Hank Skinner before any court grants him the right to test the evidence.