Hank Skinner Will Be The 55th Innocent Person Executed by Texas

“They told me there would be no math.” -- Chevy Chase as President Gerald Ford on Saturday Night Live, 1975.

Texas is eager to execute, reluctant to exonerate. Since 1976, Texas has executed 450 people. That’s more than a third of all executions from all 50 states combined. On the other hand, Texas has exonerated only 11 people from death row. That means in 2 cases out of every 100, Texas spared a person rather than executing him, usually at the insistence of a state or federal court.

The other forty-nine states have been somewhat less eager to execute but substantially more willing to exonerate. Since 1976, the forty-nine other states have executed a total of 743 people while exonerating 122 from death row. That means in 14 cases out of every 100, the other forty-nine states have spared a person rather than executing him.

Before proceeding to the shocking implication of these numbers, I want to clarify what I mean by the term “exoneration.” Elsewhere, we at The Skeptical Juror Project declared Hank Skinner to be “factually exonerated.” We based our declaration in large measure on post-conviction DNA testing conducted by the State of Texas, and on the significance the State assigned to that testing prior to receiving the results. We used the term “factually exonerated” to indicate Hank Skinner was exonerated by probative facts, even though he has not been legally exonerated by the courts, even though Texas plans still to execute him.

For this analysis, on the other hand, I use the term “exoneration” without qualification. I use it instead as defined by The Death Penalty Information Center, from where I obtained the list of exonerees. To be included in their list, the defendant must have been convicted, sentenced to death and then subsequently acquitted at re-trial, or had all charges dropped, or had been granted an absolute pardon by the governor based on new evidence of innocence.

Hank Skinner would not be considered exonerated based on the definition used in this analysis. Also excluded by this definition would be any person who had his death sentence reduced to life in prison based on some failing of the State during the death penalty phase of the trial. One example from that category would be Cory Maye of Mississippi.

Put simply, the exonerees included in this analysis should never have been on death row in the first place, based on evidence learned only after the trial.

One final delay before the shocking implications. I want make clear two assumptions. First, I’m assuming the juries (in some cases the judges) in Texas are neither more foolish nor more wise than their counterparts in the other forty-nine states. This means I’m assuming the same percentage of factually innocent people have been sent to death row in Texas as in the other states.

My second assumption is that not every innocent person on death row is identified and exonerated. Some, pehaps many, are executed. If I’m correct in this assumption, the results which follow are less disturbing than they should be. If I'm wrong in this assumption, if every innocent person is identified and spared before execution, then that would be of great comfort. Unfortunately, as we shall see, I’m probably not wrong.

Okay. Everything is in place. Here we go.

If Texas juries are neither more wise nor more foolish than their counterparts in the other states, then Texas juries placed the same percentage of innocent people on death row as did the other states. We can estimate that number using the death row exonerations-to-executions ratio from the other forty-nine states. Recall that number was 14 exonerations for each 100 persons executed or exonerated.

Since Texas executed 450 people while freeing 11, we can calculate they should have exonerated 14% of the 461 individuals. That equals 65 and a fraction.

They should have exonerated 65 people, give or take some statistical variation. They exonerated 11.

The difference is 54 wrongfully executed people who should have been exonerated.

Hank Skinner will be 55.

A Simple Request to Each Innocence Project

We have sent a letter to each of the 60 innocence projects in the United States requesting each to take a public position opposing the execution of any person who has been exonerated by DNA testing. We have asked also that each of them take a public position against the execution of any person while probative DNA testing remains untested. The body of the letter follows:

As you may be aware, Hank Skinner is to be executed by the State of Texas on the 24th of this month, March 2010. You may not be aware, however, that this execution is unique in its disregard for DNA evidence which corroborates actual innocence. Mr. Skinner’s impending execution therefore is an affront to every innocence project in this country and to every wrongfully-convicted prisoner who prays that innocence will one day absolve him.

Announcing it would do "whatever it took" to "shut up" those who doubted Mr. Skinner's guilt, the State of Texas submitted fourteen pieces of evidence for post-conviction DNA testing. None on the results inculpated Mr. Skinner. To the contrary, the results either excluded him or were deemed “inconclusive.”
 
Notably, a hair found clutched in the victim’s hand, a hair declared by the district attorney prior to testing to have been grasped from the murderer as the victim struggled for her life, excluded Hank Skinner as the donor.
 
Without shame, the State quickly secreted other test results, particularly those for bloody and broken fingernail clippings and those for a rape kit. The fingernail clippings are especially significant because Hank Skinner had no fingernail scratches on his body. Nonetheless, the State refuses to reveal those results, the status of the testing, or the physical location of the evidence. Indeed, the State refuses to acknowledge even the existence of the evidence which, prior to testing, was well-kept and allegedly probative. The State’s behavior is particularly egregious since it announced with confidence beforehand that the testing would “put a few more nails in that man’s coffin.”
 
And finally, the State refuses to release for testing additional probative DNA evidence, though David Protess of the Medill Innocence Project has offered for more than a decade to fund it. Items which remain untested include a bloody knife and a bloody axe handle (the likely murder weapons), a bloody dish towel (found in a trash bag with a handprint from an unidentified third party), and a foreign windbreaker (contaminated with hairs, blood, and sweat.)
 
Based on the exculpatory results from the hair found clutched in the victim’s lifeless hand, on the significance of that hair as declared by the State when they anticipated Mr. Skinner’s guilt, and on all other exculpatory evidence in this case, we at The Skeptical Juror declare Hank Skinner to be factually exonerated.
 
But we are only one small voice.
 
For these reasons, we humbly implore each innocence project in the United States to take a public stand, prior to March 17, 2010, condemning the execution of any person while probative DNA is withheld from testing and scrutiny.
 
Also, we humbly implore each innocence project in the United States to publicly condemn, prior to March 17, 2010, the execution of any person factually exonerated by DNA testing.
 
And should you have time to review the specific case of Hank Skinner, and should you find as well that he has been factually exonerated, we humbly implore that you so publicly declare before his execution on March 24, 2010.
 
With a robust and collective condemnation against the practice of executing factually exonerated individuals, the innocence community will help curtail the abuse of our government’s power to take from its citizenry their inalienable right to life.
 
We close by reminding you of the tragedy of Cameron Todd Willingham and of all others executed though factually innocent. It is in their legacy we hope to save Hank Skinner’s life.

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.

###

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.

###

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.

###

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.