Hank Skinner Part IX: Uncle Robert

Howard Mitchell held a New Years Eve party on the night of the murder. He picked Twila up at her home and drove her to the party. The two of them left Hank behind because he 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.

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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 $350.00 … 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 [Uncle Robert] is guilty. I really believe that.

I believe this much. If he [Uncle Robert] 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.

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McMinn, the DA investigator was surprised by what he had learned: “Well that’s the kind of information we didn’t have, you know.” He informed Mitchell that he would be speaking with Donnell: “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.

The trial took place in March of 1995. The defense introduced evidence that 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.

He testified 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, in September 1997, Howard Mitchell filed the following affidavit.

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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 work for Hank Skinner’s trial attorneys. She told me this several times.

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It’s not clear why Mitchell only remembered to reveal this information almost four years after the murder. It seems that Mitchell tended to enhance his memory as time went on. His testimony at trial, for example, included considerably more detail that he included in his interview with the DA investigator. In fact, in that 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 of February 2001.

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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 bad 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. 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.

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I doubt that even the damning information revealed in Carpenter’s report, had it been revealed during the trial, would have saved Skinner. Assuming Donnell killed Twila and her sons, the defense needed to place him at the crime scene. Had they done that, the jury would likely have set Skinner free.

Harold Comer, Skinner’s over-priced and under-motivated attorney, made no effort to place Donnell at the murder scene, though he had obvious opportunity to do so. He could have had tested the blood, hair, and sweat left at the scene against Donnell’s DNA.

Even if he had been unable to obtain a sample of Donnell’s DNA, he could have determined if the DNA evidence was consistent with a male, maternal relative of Twila. That in fact happened after the trial. The hairs found clasped in Twila’s hand, the hairs pronounced by the DA to belong to the killer, turned out to come from a male, maternal relative of Twila. They did not come from Hank Skinner. According to the standard set by the DA before the testing, those hairs exonerated Hank Skinner.

Even in the absence of testing any DNA, the defense could have compared prints found on the trash bag with those of Robert Donnell. He wouldn't have even needed Donnell's permission. Donnell’s prints were already on file due to his frequent encounters with the law. That trash bag contained the knife with the blood on it, and a bloody dish towel probably used to wipe prints from the knife. Whoever put the knife and dish towel in that trash bag left his signature behind in the form of hand and fingerprints.

It is inconceivable that no one has ever compared the prints from that trash bag against those of Robert Donnell. The authorities certainly understood the significance of those prints. They compared the prints against those of Hank Skinner, only to be surprised they did not match. Are we to believe they didn’t take the few minutes necessary to check them against those of a man identified by several people as the likely killer?

Are we to believe that?

And finally, the tenth and final part of this series: The End.

Hank Skinner Part X: The End

Compare the two photos below.  They are nearly identical. Nearly.

The student of history will recognize the photos to be of Vladimir Lenin surrounded by supporters and random members of the proletariat. That’s Lenin in the center. He’s wearing the dark coat that extends to the bottom of the photo.

Even a casual observer will realize that the second photo is simply an altered version of the first. Several people have been removed. Working counter-clockwise from Lenin’s head, the following people in the first photo are missing from the second: the man in the upper left corner with the pronounced full-facial beard and moustache; the man in the lower right corner with the dark eyes and dark beard; and the man just to the right of Lenin, the one with the hat and glasses, the one saluting.

I can’t identify either of the first two people who have gone missing. The third person, the one saluting, is Leon Trotsky. He criticized Stalin’s leadership, was exiled to Mexico, assassinated there, and removed from the Soviet’s official history.

The two photos are not oddities. They are not unusual, nor are they examples unique to the Soviet Union. Oppressive states sustain themselves in part by controlling information. People disappear from photos as they disappear from life; data are altered; inconvenient results suppressed or destroyed.

Even states that consider themselves enlightened, as do they all, fall victim to the temptations of controlling information.

I find it inconceivable that the prints lifted from a trash bag, containing a bloody knife, found at a murder scene, would not automatically be compared against state and federal fingerprint databases. I find it simply inconceivable.

I find it suspicious that a rape kit sent for post-conviction DNA testing, sent “to put a few more nails in that man’s coffin,” would simply disappear. As did the man with the full-facial beard.

I find it too convenient that broken fingernail clippings sent for post-conviction DNA testing, sent because John Mann “knew that bastard was guilty”, would simply vanish. As did the man with the dark eyes.

I find it deplorable that the state of Texas would refuse to reveal even the location of that rape kit and those fingernail clippings, to refuse even to acknowledge their very existence.

I find it reprehensible that the state of Texas, via its representative John Mann, would for seven months inform its citizenry that the hairs found clutched in Twila Busby’s lifeless hand justified its intent to kill Hank Skinner, when in fact that very evidence exonerated him.

And I find it execrable that those who have the power to intervene refuse to do so, refuse to insist that the DNA be tested and the fingerprints be compared prior to the execution of one of their own.

Harold Comer Part I: Fiscal Foibles

Ed Wood is frequently credited as the worst movie director of all time. Responsible for such movies as Plan 9 from Outer Space and Glen or Glenda, Ed plumbed the depths of mediocrity with a panache unmatched to this day. While many have tried to be as bad as Ed, few have succeeded.

Ed’s story is well told in the movie Ed Wood, with Johnny Depp portraying the B movie master. In one of the great lines from that movie, Ed declared: “Why if I had half a chance, I could make an entire movie using this stock footage.”

With that in mind, I do hereby declare Harold Comer, Hank Skinner’s defense attorney, to be the Ed Wood of the legal profession. This honor is bestowed not only because of Mr. Comer's ineptitude in his defense of Hank Skinner, but also because of Comer's practice of creating legal motions out of stock footage. Even before Comer was officially appointed to represent Hank Skinner, he filed 21 motions on Hank's behalf. Each of those 21 motions was copied verbatim from a Texas capital murder defense manual, with a scanner, and then signed.

Ed Wood would have been proud.

In honor of Harold Comer's newly bestowed title of The Ed Wood of the Legal Profession, I will be running a brief series of posts about his career as a defense attorney. I begin by detailing his fiscal foibles. In the spirit of Ed Wood, I will create this post primarily by cutting and pasting. In this case, though, I will extract my work from a quality product, rather than from some grainy government film. I will cut and paste from an appeal prepared by Hank’s skilled and dedicated appellate attorney, Rob Owen.

So hang on. Here we go.

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Harold Comer was a close political supporter of the trial judge and was himself the former elected district attorney for Gray County. Comer had been run out of office for embezzlement of public funds and drug abuse. As district attorney, Comer prosecuted Mr. Skinner for two of the felonies that were used against Mr. Skinner at the sentencing phase of his trial.

There is nothing in the record to show that Mr. Skinner was told by Comer or the trial judge of the deleterious effect this conflict would have on his case or that he had a right to a different lawyer. Throughout the trial, counsel failed to present evidence or conduct cross-examination that would have exposed the weaknesses in the state's case. Yet, by the time the trial ended, the court had awarded Comer one of the largest fees ever collected by a court-appointed lawyer in Texas - enough to help Corner payoff some of his obligations to the Internal Revenue Service for filing false tax returns. Comer's conflict of interest was never explained to, or knowingly waived by, Mr. Skinner.

On May 2, 1994, Comer met with Judge Sims to discuss his fee. The 31st Judicial District Court only had $25,000 budgeted to pay for the services of all of the attorneys who represented indigent criminal defendants that year. Comer and Judge Sims knew that the county commissioners would have to greatly increase the funding for that item to compensate Comer for his work in Mr. Skinner's case.

On May 9, 1994, Judge Sims signed an unusual "Payment Agreement" that guaranteed Comer an hourly fee of $100 plus expenses with no cap. Written contracts for the 60 professional services of court appointed lawyers are almost unheard of in Texas. In virtually all cases, the fee for services performed outside of the courtroom is at least 25% lower than the hourly payment for court appearances. Formal caps on total fees are common and informal caps are usually enforced in practice. None of these limitations were contained in Comer's Payment Agreement.

On May 17, 1994, Comer collected a payment for the first of many interim bills that he submitted. Comer charged the county $3,452.87 for the services that he performed between January 10 and February 24, 1994, before Judge Sims formally appointed him. Included in that statement was a fee of $450 for merely copying from a form book the 21 motions that he filed on February 9, 1994. The law prohibited any compensation for any of the services that Comer performed prior to his formal appointment, but Judge Sims signed his voucher.

On May 22, 1994, the first negative story about the cost of Mr. Skinner's defense appeared in a local newspaper. The County Judge warned that the cost would "far exceed" the amount budgeted for all indigent criminal cases that year. She suggested that it might be necessary to borrow the money or use other funds that were designated for indigent health care and a hospital.

In an effort to make the payment of his fee more palatable to the public, Comer announced to the press that he "voluntarily" used $2,000 of his first check to reimburse Gray County for costs that it incurred in a whistle blower law suit as a result of his mishandling of public funds when he was district attorney.

Comer collected about $80,000 in interim payments for attorney fees. The County Commissioners had to raise local taxes to pay him. No other attorney in the history of Texas has been paid as much money for representing an indigent defendant in one criminal case as Comer collected for defending Mr. Skinner.

Several of the finest capital defense attorneys in the State could have been hired to take the case at that price. There were at least ten skilled criminal defense attorneys in the nearby cities of Amarillo and Lubbock with significant capital trial experience who were paid only $20,000 to $40,000 to represent indigent capital defendants in comparable cases at about the same period of time.

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That wasn’t so hard. Maybe some day Johnny Depp will star in the the movie Harold Comer.

In Part II of this series, I’ll cut and paste a chilling tale of Comer’s close ties to both the judge and the prosecutor who judged and prosecuted Hank Skinner.

Living on Borrowed Time

February 24, 2010 -- Today is the day Hank Skinner was originally scheduled to be executed. Sometime after 6 PM Texas time, the Great State of Texas was hoping to strap Hank Skinner to a specially designed table, clean the crook of his elbow with an alcohol swab (to prevent infection later), and insert an IV line. They were planning then to inject a sequence of sedative and lethal chemicals, so that Hank Skinner would pass from this earth.

Meanwhile, District Attorney Lynn Switzer withholds copious and probative DNA evidence of Hank's actual guilt or innocence. She may also be withholding exculpatory results from a rape kit and fingernail scrapings.  The rape kit and fingernail scrapings were, afterall, sent long ago for testing, yet the results remain a secret to this day.

Rick Perry, the man who initially appointed Lynn Switzer to her current position, watches the polls.

Texas' plans for today were put on hold due to a clerical error and an astute attorney. As for our role in this unfolding tragedy, we have been ineffectual. We have failed to persuade Rick Perry, or Lynn Switzer, or the Texas Board of Paroles and Pardons to release the DNA for testing. We have been unsuccessful in bringing any noticeable incremental attention to this case.

We are not even gnats to be swatted. We are, at best, but a small fragment of a gnat to be swatted. Our impact has been as we predicted, but refused to accept. So now ...

We can continue with our current plan.

We can give up.

We can try something else.

The Wisdom of a Clerical Error

In Texas, a clerical error has shown more wisdom than have the leaders of that state. The 31st District Court, while steadfastly refusing to order testing of copious and probative DNA evidence, has ordered a one month delay in Hank Skinner's execution because of concern over the filing date of the original death warrant.

It is now time to RELEASE THE DNA evidence for testing by an independent agency. It will cost the State of Texas nothing and, if Hank Skinner is in fact guilty as Governor Perry and Lynn Switzer insist, there will be no further delay in Hank's execution.