FACTUALLY EXONERATED!

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 manipulating information.

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More than five years after the conviction of Hank Skinner, District Attorney John Mann sent previously-untested DNA samples from the case to GeneScreen laboratory for testing. The fourteen samples included a rape kit, fingernail clippings, a bloody cassette tape, a bloody piece of gauze, a bloody notebook, and multiple hairs. Of particular note were two hairs found clutched in Twila Busby’s right hand.

Before the testing, John Mann declared those hairs to have come from the person who murdered Twila Busby. At the time, he believed Hank Skinner to be the murderer. “The D.A. said late last week he felt certain the test will prove the hair in Twila’s hand is Skinner’s which he says convinces him that she fought with him for her life.”

But when tested, DNA results from both those hairs excluded Hank Skinner as the donor. One hair was matched to Twila Busby herself. The second was matched to an unknown male, possibly a maternal relative. Neither hair came from Hank Skinner. In fact, none of the items tested included Hank Skinner as a possible donor.

By Mr. Mann's own assessment, the DNA tests factually exonerated Hank Skinner.

When DNA testing factually exonerates a convicted person, the standard response, and the only reasonable response, is to grant that person a new trial or dismiss the charges completely. Inconceivably, in this case the state of Texas decided instead to proceed with Hank Skinner's execution. The troublesome test results would be no great impediment. They would simply disappear, as if they were nothing more than inconvenient dissenters in a grainy photo.

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After declaring he would do "whatever it took" to "shut up" those who doubted Skinner's guilt, John Mann spent the final seven months of his term suppressing and lying about the results of the DNA tests he personally approved. Rather than release the results to the public, he launched a smear campaign against the man he had unintentionally exonerated.  "Hairs found in the hand of murder victim Twila Busby belonged to Henry Watkins Skinner," John Mann bloviated. "In all the sampling," he prevaricated, "there has been no DNA from a third person."

Equally insidious is the disappearance of the rape kit and the fingernail clippings. Even after John Mann's departure from office, even after the results for the other items were finally released, the results from the rape kit and fingernail clippings went unreported. To this day, the state of Texas refuses to make those results public. To this day, the state of Texas refuses to reveal the physical location of the rape kit and fingernail clippings. It refuses even to acknowledge their very existence.

As Texas prepares to execute Hank Skinner just days from now, its leaders and representatives present us an altered portrait. A rape kit that once would cause us to "shut up" has gone missing. Fingernail clippings that once would "put a few more nails in that man's coffin" have vanished. A hair pulled from the head of the killer is dismissed with a shrug and a few unabashed lies.

We are supposed to look upon their work and remain silent.

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We at The Skeptical Juror declare Hank Skinner to be facutally exonerated. We base our declaration on the hair clutched in Twila Busby's right hand, on the testing that excluded Hank Skinner as the donor of that hair, and on District Attorney John Mann's pronouncement that Twila Busby pulled that hair from her killer during the final struggle of her life.

We submit that the execution of Hank Skinner, should it be now be allowed to proceed, will indelibly tarnish the reputation of the great state of Texas, and will bring infamy upon all those who could have stopped the execution but elected instead to stand silent.

We call upon innocence projects throughout our country, and throughout Texas in particular, to review the circumstances of the impending Hank Skinner execution, and to make a public pronouncement of their own should they too find Hank Skinner to be factually exonerated.

CORRECTION:

While the rape kit and fingernail clippings were not tested (as I correctly reported), they have not gone missing (as I incorrectly reported). I am informed that the State of Texas has control of that evidence, and that the evidence is secure and viable for testing.

Hank Skinner Part I: Introduction

February 12, 2010 -- Two weeks ago tomorrow, I learned of a disturbing case. On that day, The Skeptical Niece sent me an email regarding a case she had come across. Would I consider it, she enquired, as the basis for a future addition to The Skeptical Juror series?

The case was that of Hank Skinner, convicted of a triple murder in 1993 in Pampa, Texas. I learned quickly that Hank Skinner is scheduled to be executed this month, on the 24th of February.

My initial reaction was to unequivocally exclude the case from consideration, now and forever. My concern was that, if I worked on the case after the execution, I might discover something I could have done to help an innocent person had I only thrust myself immediately and aggressively into the case. Such a discovery would weigh too heavily on me. Ignorance, while not necessarily bliss, seemed a preferable option.

I was unable to ignore the case, though. A cursory review suggested that Hank Skinner might indeed be innocent. Adding to my unease, there seemed to be substantial DNA evidence yet to be tested, or already tested and yet to be released. Under both circumstances, the State of Texas was fighting mightily to hoard all DNA evidence so that Hank Skinner could quickly and quietly go to the needle.

By the next day, I had reconsidered. I would be willing to add the case to our series, on one condition. The Skeptical Niece would need to join me in a frantic, no-holds-barred effort to assist Hank Skinner in the woefully brief time before his execution. Though the chance of success was, and still is, miniscule, we agreed to commit ourselves to the case.

By Monday evening we had the outline of a plan. Clearly, there was no time for a book of any length before the scheduled execution. In fact, we decided it was futile to rely solely on the written word. Many supporters had already written lengthy and well-researched articles about the case, yet the execution was proceeding apace. Instead, we decided we had to focus on a single, overriding issue, and we needed to present that issue in an eye-catching, single-page graphic. We would put the graphic in the hands of those people having the power to avert the ultimate injustice. Those people would be tempted to peek and compelled to act.

Or so we willingly deceived ourselves, in lieu of giving up.

We decided the overriding issue in this case is the sequence of executing first and testing later. Our catch phrase became:

RELEASE THE DNA BEFORE KILLING HANK SKINNER.

We divided ourselves into two understaffed teams of one person each. I assumed responsibility for absorbing the facts of the case, and for devising a graphic image. (We would pay for a graphic designer to convert the concept into a professional product.) The Skeptical Niece assumed responsibility for everything else, including the mailing list and all external communications.

We won't speak of our next two weeks, difficult as they may have seemed for us at the time. Our travails and our time lost are unworthy of discussion when compared against the tribulations of Hank Skinner, and the prospects which await.

Our resulting work product, the graphic and a provocative cover letter, are now available. Surely you must have seen them above. The nature of our product, however, prohibits a thorough presentation of all facts and arguments, for both sides. We hope to do that here, or at least lead you to sources which tell the story more completely.

One such source, Brandi Grissom, a reporter for the The Texas Tribune. She has so far published three well-researched articles titled Case Open and Case Open: The Investigation and Case Open, File Closed.

In Part II of this series, we begin telling, in our fashion, the chain of the events which has led us all here today.

Hank Skinner Part II: The Crime Scene

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, wearing nothing except a pair of bloody undershorts. They called for help. Elwin died at the hospital before he could reveal the identity of his killer.

Elwin was Twila Busby's 22 year old son, six-foot six-inches tall, 215 pounds, and mentally challenged. He lived at the house next to 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 guaze.

There was a bloody handprint on the front storm door. Investigators would remove the glass panel 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 copious blood stains on the living room floor. Twila Busby's body lay face down in that blood, her head smashed 14 times by an ax handle which 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, an unintentional victim of the ax handle. Broken glass was mingled with the blood below.

The medical examiner would later determine that Twila had been strangled, apparently before being bludgeoned. Her larnyx was crushed and one of her two hyoid bones broken.

Twila's pants were unzipped and her blouse pulled up. The investigators took a rape kit, swabbed for semen and combed for foreign hairs. The medical examiner would 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 Caler. Randy was Twila's 20-year-old son. He was partially covered with a bloody blanket. He had been stabbed three times in the back. The lower bunk, where Caler slept, was free of blood. Caler had been stabbed elsewhere.

Clues abounded. There were four more bloody handprints to be found. One was a mere 18 inches off the floor on the frame of the boys' bedroom door. Two were on the back door, as if someone had left through that door while another person had left through the front.

The remaining handprint was on a garbage bag. Inside the bag, investiagtors discovered a second knife and a bloody dish towel. No fingerprints were found on the knife. Perhaps someone had attempted to clean this knife as well. If so, it would be the same modus operandi as that associated with the objects on the front porch.

The investigators also found a windbreaker on a chair in the living room. It was a DNA gold mine of blood, hairs, and sweat.

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.

In Part III of this series, the wheels of justice begin their grind.

Hank Skinner Part III: Target Fixation

In World War II, pilots reported incidents of nearly flying into the targets they were strafing. The phenomenon was sufficiently common to deserve a name: target fixation.

Target fixation is blamed today for some motorcycle accidents in which riders mindlessly steer towards an object that fixes their attention. The phenomenon has also been used to explain instances in which skydivers fail to deploy their parachutes.

I argue that target fixation is the primary root cause for many, perhaps most false convictions. See if the phenomenon makes sense to you as an explanation for what happened in the case of Hank Skinner.

The police found Hank Skinner three hours after their arrival on the murder scene. 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, apparently a knife wound, on his right hand.

At trial, Reed would testify that Hank forced his way into her home, had confessed to killing Twila, and had threatened to kill her should she attempt to call the police.

The authorities believed they had solved the case quickly. Hank Skinner was in their gun sight, and they would never look left, right, up, or down. They were fixated.

They ignored the pleas of Howard Mitchell. Mitchell explained it was impossible for Hank to have murdered Twila. Hank had been completely incapacitated, passed out on the couch next to the remains of a vodka bottle. Mitchell had tried to rouse Hank to attend a New Year's Eve party with Twila at his residence, but he could not wake Hank, much less get him to stand. And that was little more than a half-hour before the murder.

Mitchell provided the name of a more likely suspect, Robert Donnell. Donnell was Twila's 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 life by speaking of him.

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

The investigators choose to ignore Mitchell. They did not investigate Donnell. They were fixated and they would fly this case into the ground.

They tested the bloody handprints against Hank Skinner. Hank was good for the three near the back of the house. The one on the trash bag, and presumably the one on the front storm door, belonged to someone else. Perhaps they belonged to Robert Donnell, Twila's dangerous and lecherous uncle.

It would have been mere child's play to check the prints against Donnell. He was a four-time felon, and his fingerprints were already in the system. They choose not to.

They tested but a small subset of the copious DNA evidence collected from the scene. They took a DNA profile from Twila but not from her two murdered sons. They took a DNA profile from Hank Skinner, but not from Donnell. They tested the blood found on Hank's shirt and pants, but not the vaginal swabs from the rape kit. Perhaps most shockingly, the failed to test the scrapings from Twila's broken fingernails, though Hank had no scratches on him.

The blood on Hank's shirt came from his own wound and from Twila. The blood on his pants came from himself, Twila, and Elwin. The case was a slam dunk. All that remained was a conviction and a syringe.

If they were lucky, Hank would end up with an attorney who would not insist that all the DNA and fingerprints be tested. But what were the chances of that? One in a million gazillion?

Then, as if manna from heaven, the court appointed Harold Comer to represent Hank Skinner.

Part IV, Fix of a Different Sort, follows.

Hank Skinner Part IV: Fix of a Different Sort

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 elected 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.

Harold Comer's transition from Hank's prosecutor to Hank's defender was -- well -- shall I say -- blemished. Yeah, that's it, blemished. 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 himself addicted to drugs. One failing was undoubtedly tied to the other, and neither was of inconsequential magnitude. After he was ejected from his job, the IRS tagged him with a $90,000 bill for unreported taxes.

Comer needed to find honest work, and he needed to find it quickly. Luck was on his side: Judge M. Kent Sims had been assigned to handle the trial of Hank Skinner. That wasn't just good news, it was great news. Comer had been a close political supporter of Judge Sims, and sure enough, Sims assigned 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."

Comer had good reason to expect he would earn somewhat more than the $800 cited by Dwyer in 2003. Hank would be tried in 2005, so there was inflation to be considered. And Palma wasn't necessarily the rural section of Texas of which Dwyer wrote. And, most significantly, Hank's case was a death penalty case. That was the best part. 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. It was the largest fee ever paid by Texas to a court-appointed attorney. It simply boggles the mind to think of how much they might have paid him had he defended Hank successfully.

Though to this day he claims otherwise, Harold Comer didn't really seem to give it his best shot. For example, his effort to independently investigate Robert Donnell as the likely culprit was uninspired. He hired Kirvin Roper as his private investigator.

Comer and Roper went way back. When Comer was still District Attorney, Roper worked for him, at least for the office. Comer absolutely knew that Kirvin's work wasn't top notch, because Comer had, as the DA, fired him for incompetence and embezzlement. Now Comer hired him back to check out the violent, knife-wielding, sexually-obsessed uncle.

Kirvin didn't come up with much of anything. He didn't get a copy of Donnell's fingerprints or DNA, best we can tell. He apparently didn't discover that Donnell's truck was seen outside Twila's house that night, or that Donnell repainted the truck and replaced the carpeting almost immediately after the crime. Nor does it seem he learned that Donnell had bragged of killing someone earlier in a bar fight. It's not obvious what, if anything, Kirvin brought to the party.

More significantly though, Comer failed to demand that all the DNA be tested. Hell, he didn't even ask. Nor did he demand that the handprints be tested against Donnell. He would argue later it was all part of a well-conceived strategy: he wanted to make the police look bad because they didn't do the testing voluntarily.

As you already realize, that strategy sucked.

Part V, The Trial, coming soon.