In Search of the 54

I recently made the outrageous claim that Texas has executed 54 innocent people since 1976, give or take some statistical variation.  I calculated that number using ratios of people exonerated from death row to people executed. That ratio for Texas was a paltry 2.4% compared to 14.1% for the rest of the nation. Assuming Texas juries were no more wise or foolish than the rest of the county, that discrepancy suggests that Texas has executed 54 innocent people, give or take.

I've decided to find the 54.

That sentence was surprisingly easy to write. It's going to be hard as hell to accomplish. I start with an unfortunately large list of 450 people executed. If I were able to round up and evaluate the information on one person per day, it would take me a year and a half. But it will take many, many days per person.

I recognize also, that I will never be able to "prove" any of them to be innocent. I will have to establish some criteria by which I include or exclude people from the list. I will have to be satisfied to allow the list to grow slowly, since I begin with no time to spare for this massive effort. I'll probably have to recruit help. I'll have to be clever.

As I said, it won't be easy. Nonetheless, I've decided to find the 54. I'll keep you posted.

Part II is here.

Part III is here.

Former Texas DA Wants DNA Tested Before Execution

Sam Millsap once was the District Attorney for Bexar County, Texas. Bexar County, for reference, includes the city of San Antonio.  In the March 9, 2010 edition of the Houston Chronicle, Millsap makes his case that the DNA evidence in the Hank Skinner case should be tested prior to Skinner's execution.

We have been trying to make that case for quite a while now. Millsap's experience, however, gives him a unique perspective on the execution of persons possibly innocent. Consider this segment from the article.

Several years ago, this newspaper argued persuasively that Ruben Cantu, a defendant I prosecuted who was put to death in 1993, may well have been innocent. Twenty years after Cantu's trial, my star witness recanted his trial testimony. Many people consider his recantation credible because he had nothing to gain by reversing his position except a whole lot of trouble.

That case brought home to me, in a way that nothing else could have, that the system we trust to determine who may live and who must die simply doesn't work in all cases. Other investigative stories have revealed that Texans Carlos DeLuna, who was executed in 1989, and Cameron Todd Willingham, executed in 2004, were almost certainly innocent.

Now if we can get a few innocence projects to join the call, maybe many will follow. And maybe then Governor Perry will see the wisdom in testing the DNA before executing Hank Skinner.

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.