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.


Anonymous said...

It crushes me to read this.

Anonymous said...

It crushes me too in that it is the most dishonest statement of the evidence I've ever seen.

Anonymous said...

It is even more crushing to see someone claim dishonest representation of evidence when, in fact, all DNA evidence was not tested in this case. This man can, in no way, have a fair trial without such testing. This man can, in no way, expect any measure of justice when evidence such as DNA evidence is suppressed.

If we, in this country, are going to continue to support the death penalty, then an all out effort to ensure a proper conviction should be sought at all costs. Death cannot be reversed. In the cases of death penalty, err should be on the side of caution. Period.

Of recent years has it come to light that we have a seriously flawed judicial system. Texas is, without a doubt, the most flamboyant of these flawed systems. It's time to put it all right.

tsj said...

Crushed #2,
If you will be specific about any or all errors you believe I have made, I will research your claim (or claims) and correct my writing as appropriate.

Anonymous said...

He and his lawyers CHOSE not to have these items tested at his trial...WHY...not because his lawyer previously prosecuted was because HANK knew it would not help him...none of this is going to mean anything, someone else had sex with Twila, someone else wore the jacket...REALLY@

Chris Halkides said...

My understanding is that Mr. Skinner's first attorney went against Skinner's wishes with respect to the DNA. What is truly shameful is that the state has apparently lost the jacket.

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