Those Who Judged Hank Skinner

Forgotten among those harmed by wrongful convictions are the jurors who were manipulated and deceived into casting an improper guilty verdict. I am particularly sensitive to those folks, having myself been the target of such manipulation and deceit.

In my case, my skepticism spared a kind, decent, and innocent gentleman from what would have effectively been a life sentence. Over the course of eight days of deliberation, I transformed a jury leaning 11 to 1 guilty, into a jury voting 10 to 2 not guilty. During the retrial, I worked closely with the defense, on a volunteer basis, to prepare them for the response they should expect from the next jury. I had access to all the case documents, and spent hundreds and hundreds of hours pouring over them. There is no doubt in my mind that my initial skepticism was justified. That decent and gentle person went home to his family a free man, assuming you  can ignore a half million dollars in legal bills and a life's work tarnished. I went home to my family a transformed individual.

While I am frustrated with jurors who I perceive to be insufficiently skeptical of the State, I have trouble faulting them. Jurors are all too frequently lied to and manipulated by the prosecution, the defense, and the judge. Crucial evidence is withheld from them. They are frequently sequestered, kept under house arrest in someone else's house. They are frequently not allowed to take notes, or have the transcripts read back to them. They are seldom allowed to ask questions, even though those questions would be filtered by the judge. They may be bombarded by expert testimony beyond their comprehension.

Jurors have no training or preparation for the difficult job society asks them to do. They are paid hardly at all for their service, far below the minimum wage the State demands of every other organization. They are put in a terrible position to weigh evidence, then are expected to do just that. As far as the trial courts are concerned, jurors are the judges of fact. As far as the appellate courts are concerned, jury verdicts are not to be questioned.

I feel for those jurors who later learn that they may have condemned an innocent person. The experience is so traumatizing that most jurors are loath to admit they made a mistake, even when overwhelming evidence makes it obviously so. Jury expert Douglas Keene apparently agrees with me: "Over time, they become more cemented into that original view because they can't even tolerate the view that they might have made a mistake on something so serious."

It is perhaps therefore remarkable that most of Hank Skinner's jurors, those asked to judge the facts of his case, are now willing to question their verdict. Students from the Medill Innocence Project located and interviewed most of them.

I won't paraphrase that article describing their work. It's better that you read it in its entirety. But I will borrow three quotes from the article. The first I have already used. It's the quote from Douglas Keene. The second and third I'll use to close this post.

"It would have been reasonable doubt," said juror Tiffany Daniel, wiping away tears. "Especially if we had all that evidence, and another person's fingerprints was on it, or if someone else's skin was underneath Twila Busby's fingernails. That's reasonable doubt that it could be somebody else."

"What's right is right and what's wrong is wrong," said juror Jerry Williams. "It should have been tested before ... Somebody's life is at stake."

A Response to Lynn Switzer: Hank Skinner's Statement to the Police

A couple weeks ago, I published Lynn Switzer's defense for her withholding of potentially probative DNA evidence in the death penalty case of Hank Skinner. I published her defense in its entirety and without comment, promising only to comment later. The time has come.

This will be the first of a four (or thereabout) part series in which I respond to the arguments she makes. In this post, I will address one of the most surprising aspects of her defense: the mention of "Mr. Skinner's videotaped statement to police about how he and Twila had fought with a stick", which she equated to the axe handle used to bludgeon Twila Busby.

I was not previously aware that Hank had given a statement, hence my surprise. I was surprised next to learn that it was my own fault for being unaware. Lynn Switzer, as it turned out, had extracted that tidbit from the transcript of a federal evidentiary hearing, and Hank Skinner, as it turned out, had posted that transcript on his website. (See www.hankskinner.org, then click The Case of Hank Skinner / Legal Documents / Evidentiary Hearing Transcript Volume 1)

While Hank Skinner has certainly not been advertising the existence of that statement, since it seems to be generally unfavorable, he was not keeping it a secret. He put it on his own site for anyone to find, at least anyone willing to look. I guess I was so busy bloviating when I first began writing about his case that I failed to carefully read through all the material he had made available. I did read much of it to be sure, but obviously not all of it. I'm officially contrite, and it's time to move on.

Hank Skinner apparently provided the statement around 9 AM, on New Year's Day of 1994 That would be the morning following the murder of Twila and her two sons on New Year's Eve of 1993. The statement was 10 minutes long and was recorded on video tape. All parties at the evidentiary hearing seemed to accept it as "involuntary" and "without counsel".

Rob Owen, for example, asked John Mann, the DA who prosecuted Hank Skinner, the following question. "Directing your attention specifically to the Skinner case, did you conclude that there was a risk that the video taped statement taken from Mr. Skinner by Detective Terry Young on January the 1st of 1994 might not be admissible?"

To which John Mann replied: "I didn't conclude that there was a risk that it might not be admissible. I knew darn well it wasn't admissible."

Though the tape was inadmissible for trial, Lynn Switzer argued during the evidentiary hearing that the tape should be subject to testimony in that hearing because it provided insight into the defendant's state of mind. The judge granted her leeway on the issue. She used that leeway to introduce into testimony the following, presumably carefully-selected excerpts.

I don't even remember Scooter being there except for it seems like when me and his momma were fighting, I -- it seems like he come up and grabbed me behind the neck and got me off of her, and that's how I got throwed in the floor, but I ain't sure if he done it or not, or if I just fell. (Page 186)

Well, I remember her hitting me in the back with a stick and knocked me down. She got on top of me and she had the stick across my throat and I don't remember if I throwed her off or if she got up off of me or -- or what happened, but the fight ended for a minute and she went -- I was still in the living room, I think, and I believe she went in the back room or something, ... No, no, that's not right. We were fighting and arguing at first and I pushed her down and the fight ended. She went in the back room and then came back with a stick and hit me in the back with the stick, and then she knocked me down -- it knocked the breath out of me and then she knocked me down on the ground. Then she was on top of me and she had the stick across my shoulders. (Page 198)

At some point the fight kind of let up for a minute and I asked her where she had been. She told me she had been over at Howard Mitchell's house, she was forbidden to go over there by me because there's nothing but a bunch of drunks over there, and they just are no-good people, and I don't want her around them. (Page 198)

I have several observations regarding these excerpts:

1) Those people advocating for Hank Skinner's execution are aware of Hank's statement, and are describing it as Hank Skinner's "confession." Lynn Switzer too used that term  liberally during the evidentiary hearing. In her defense of withholding evidence, however, she is more restrained and describes the statement only as a statement.

2) In her defense for withholding evidence, Lynn Switzer excerpted the excerpts she managed to introduce into the evidentiary hearing.

3) She has provided no context. Context is important. So that we may consider the excerpts in the context they were provided, I challenge Lynn Switzer to publish Hank Skinner's entire statement. If she provides that statement to me, in its entirety, I will post it here, in it's entirety. If she claims she is not allowed to make public that document, she might explain instead her legal basis for publishing an excerpt from it.

4) Hank makes no mention of an axe-handle. He said stick. Lynn Switzer equated the two. It's not at all clear that Hank equated the two. It's not at all clear Hank was in any condition to do any equating.

5) Hank had no wounds to his throat consistent with being choked by either a stick or an axe handle. He had no scratches on him consistent with any fighting.

5) Hank is having trouble telling a consistent story. I think, and I believe she went in the back room or something, ... No, no, that's not right. We were fighting ...

I believe that Hank was confabulating. (From the www.thefreedictionary.com -- Confabulate: To fill in gaps in one's memory with fabrications that one believes to be facts.)

Even the prosecution team seemed to consider that a possibility. I submit more excerpts from the evidentiary hearing. In the following Q&A, Ms. Georgette Oden of the prosecution team is questioning Dr. William Lowry of the defense team. (See Volume II, page 351.)

Q Now you previously testified that drug and alcohol abuse causes organic brain damage?

A Yes.

Q And with organic brain damage you can have what's called confabulations at any time?

A Yes.

Q You don't just have confabulation when you're taking the alcohol or when you're taking the drug?

A Correct.

Q And when you say confabulation you mean the brain is filling in blank when it doesn't know what happens?

A Correct.

Q And just because you're doing that doesn't mean you're taking drugs at that moment?

A Correct.

As more evidence of confabulation, consider the following excerpts from Andrea Reed's recantation. Recall that Hank Skinner showed up at Andrea Reed's door after the murder. He was bloody and claiming he had been shot.

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 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.

Clearly, Hank Skinner was telling story after story about what happened that evening, and getting none of them correct. He was shot. He had kicked Twila to death. Scooter grabbed him from behind by the throat. Twila came up from behind and tried to choke him with a stick. He told Andrea Reed multiple stories and swore her to secrecy "each time he gave me a different story about what happened." He told the police multiple stories of what happened.

Lynn Switzer carefully selected a few excerpts from Hank Skinner's "involuntary" police interview, the one taken "without counsel." Switzer then published those excerpts without any context as part of her defense for not testing potentially probative DNA evidence before executing Hank Skinner. It's unseemly, at best. As penance, I suggest Lynn Switzer read about the terrible injustice associated with false confessions.

Having now waded through all 845 pages of the Hank's evidentiary hearing transcripts (so you don't have to), I have grown weary of trying to sort out all the "he said", "she said", "but earlier he said", "oh yeah, earlier she said" business. It seems so silly to be doing so when we might be able to positively establish Hank Skinner's guilt or innocence by simply testing the damn DNA.

In the next post responding to Lynn Switzer, I believe I'll discuss the issue of Hank declining to test all the DNA prior to his trial. I believe I'll subtitle it "Harold Comer: The Gift That Keeps On Giving."

Radley Strikes Again

Radley Balko, aka "The Agitator", has another good article on the net, this one for Slate. He argues that it would be prudent for prosecutors to test all probative DNA evidence before trial, rather than argue whether more should be tested after trial. He uses the Hank Skinner case as an example of the problems associated with the "Test Some and Argue More" later approach.

Given the length of his article, he provides what may be the best and most balanced summary of Hank's complex case I've seen so far. If you are following Hank's case, Radley's article is certainly worth a read. It also has a rather unflattering picture of Rick Perry, perhaps the most unflattering I've seen so far.

That makes it tough to resist, doesn't it?

The Disturbing Case of Lamont Reese

Late last week, I invited readers to follow along, and even participate in an inquiry into the execution of Lamont Reese. I provided two links to the case summary, and invited any reader interested to provide a preliminary analysis of that case. Since there were no takers, I'll begin to discuss my concern about that case here. My concern is substantial.

I have a bad feeling about this one.

While searching for the 54 innocent people Texas may have executed, I allowed the case of Lamont Reese to pass through my coarse filter because of his persistent and demonstrative expressions of innocence. Other than that, the cards seemed stacked pretty well against him. Allow me to provide you an overview based on summaries provided by Wikipedia and the Texas Execution Information Center.

On March 1, 1999, 3 men flirted with Lamont Reese’s 18-year-old girlfriend, Kareema, outside a Fort Worth convenience store. After an exchange of words, Reese, Kareema, and 3 of his companions left the store and armed themselves. Kareema drove them drove them back to the store, bringing her 2-year-old son with her. Reese shot the three men who had flirted with Kareema, as well as two bystanders. Three of those who were shot died.

After the murders, Reese and his friends returned to Kareema's home where they bragged about their crime. One of them told another man who had not participated in the shooting that Reese had shot three people with an assault rifle. Reese did not dispute this statement. Instead, he boasted that he got the men who were at the pay phone at the store.

On the heels of his arrest police impounded Reese's vehicle and found five live cartridges in the glove compartment that were identical to several live rounds of ammunition discovered at the crime scene.

After his arrest Reese approached the jailer and asked if he was classified as a “celebrity inmate.” The jailer responded that Tarrant County had no such classification but instead classified appropriate inmates as “high profile.” When he assured Reese that he would check on his classification Reese announced, “Hell, I killed three people.”

Reese was convicted of capital murder. He forced his jailers to carry him to the death chamber. After being strapped to the gurney, Reese explained his behavior. ""I want everyone to know that I did not walk to this, because this is straight-up murder. I am not going to play a part in my own murder. No one should have to do that."

Reese also addressed the victims' relatives who were in attendance. "I do not know all of your names, and I don't know how you feel about me, and whether you believe it or not, I did not kill them." 

Reese's girlfriend Kareema and his three friends / accomplices were each convicted of capital murder. Kareema was sentenced to life. The others to 50 years, 45 years, and 30 years.

I had little luck finding information about the case. Generally, I can find written decisions by appellate courts that provide insight into a case. I found none for Lamont Reese. I found instead several adverse decisions unaccompanied by any written opinion. At one point Reese went on a hunger strike to draw attention to his poor legal representation, but that too was to no avail. He was sped through the appeals process and executed with hardly a whimper from the press, public, or legal profession.

Finally I stumbled across a defense for Lamont Reese, the only one I have found so far. It was an open letter written by a fellow death row inmate. I include that defense in its entirety below. 

From: MICHAEL TONEY

3872 F.M. 350 S. #999314
Livingston, Texas 77351
Website: www.michaelaim.org
Email: innocentmanintx@yahoo.com

June 15, 2004

***URGENT PLEA FOR HELP******

On March 1st, 1999 at approximately 9:00 PM as 21-year-old Lamont Reese, his 18- year-old girlfriend, Kareema Kimbrough and their 2-year-old son were at a Hollywood Video Store returning some videos and renting others, a gang related shooting was taking place at a convenience store about three miles away.

5 young men were shot, 3 died. The two survivors testified that they did not see who shot them. The following day 15-year-old Steven Kindred shot 18-year-old Curtis Sealy purportedly to silence him in regard to the previous nights murders. Steven Kindred, AKA: “Little Hoova,” was subsequently arrested for the aggravated assault (shooting) of Curtis Sealy. During police interviews Kindred began trying to “deal” his way out of his predicament. When he was questioned about the convenience store shootings he pointed the finger at someone other than Lamont Reese and Kareema Kimbrough. In his efforts to save his own skin, his stories evolved and he eventually pointed the finger of blame at Lamont and Kareema. As time progressed and the lies became more complex, a total of five people were charged in the shooting, including Steven Kindred.

Desperate for someone to corroborate his version of the events, 15-year-old Kindred turned to his 25-year-old girlfriend. He in turn told her to tell the authorities that Lamont Reese went to her house minutes after the shooting and allegedly “confessed” to her and then went to the video store. When Kindred’s adult girlfriend approached the police with her story, she was told that she could be charged with “aggravated sexual assault of a child,” because of her sexual relationship with the juvenile, Kindred.

To make a long story short, 3 of the 5 who were charged with this crime (shooting, murders) used lies to bargain their way out of death or life sentences. Lamont Reese was sentenced to death, and Kareema, life in prison. Kindred’s girlfriend was given “transactional immunity” for the charge of Aggregated Sexual Assault in return for her testimony. If that wasn’t adequate motive for perjury, I’m sure it was enhanced by her desire to help her juvenile lover.

No physical evidence was presented to support the testimony of Kindred’s girlfriend, who admitted she had been smoking crack all the day of the shooting.

I have no way of verifying any of this and no investigator has ever attempted to talk to any of the co-defendants or supposed witnesses, including the “crack smoking child molester.” However, Lamont has in his possession a receipt that shows he was in fact at the Hollywood video around 9 PM returning videos and renting more. He frequented this store often. The store security video shows Lamont, his girlfriend and their child in the store around this same time. The tape has never been properly analyzed to break down the exact times.

The problem is he is about to get an execution date. His case has moved through the courts at an alarming rate of speed. The crime happened March 1st, 1999. He was sentenced to death December 4, 2000. His direct appeal was affirmed November 6, 2002, the state writ application; relief was denied April 30th, 2003 and then by law he had one year to prepare and file his Petition for writ of Habeas Corpus in Federal Court, but the judge ordered it due in 45 days. The state responded 45 days after that and relief was denied August 14th, 2003. Now the Fifth Circuit has denied COA, May 10th, 2004. He expects an execution date very soon.

His federal writ attorney (appointed) was none other than Lisa Mullen, who as an Assistant D.A. in Tarrant Co. sent a handful of men to death row. Some have been killed.

I’m trying to be as brief as possible, but it seems if someone would take enough interest and investigate the case, especially the crack smoking lady who was given “immunity” for the charge of aggravated sexual assault of a child, enough new evidence may be found that allows Lamont to file a “Subsequent State Writ Application.”

Also, Lamont may very well be mentally retarded. The federal judge stated something to the affect “If he was smart enough to go to the video store for an alibi, he is not mentally retarded.” That is not a direct quote, but a synopsis of what was written in the opinion.

I, too, am without question a victim of a miscarriage of justice in the same county, so I know how easily it happens. If I could be wrongfully convicted in my situation, I’m certain he could be in the scenario I have just described. Personally, I believe Lamont is telling the truth. I believe him, because he has not detoured from his story under my constant scrutiny, because of the video receipt and tape, but mostly because he is determined to help his girlfriend obtain justice after he is (God forbid) killed by the State of Texas. He is more concerned with helping someone he loves than he is with himself. I perceive that as indicative of an innocent person.

Anyone who is willing and able to help Lamont can contact him at the following address.

Mr. Lamont Reese #999374
3872 F.M. 350 S.
Livingston, TX 77351

I determined that Michael Toney was accurate about at least one aspect of his story. "I, too, am without a question a victim of a miscarriage of justice in the same country, so I know how easily it happens."

I did a Google search on him. The first hit provided this tidbit.

Toney's conviction was overturned on December 17, 2008 by the Texas Court of Criminal Appeals because the prosecution suppressed evidence relating to the credibility of its only two witnesses against him. The Tarrant County District Attorney’s Office subsequently withdrew from the case based on the misconduct findings. In September 2009, the Attorney General's Office, which had been specially appointed to the case in the wake of Tarrant County’s withdrawal, dismissed the indictment against Toney.  He had consistently maintained his innocence.  The case had gone unsolved for 14 years until a jail inmate told authorities that Toney had confessed to the crime.  The inmate later recanted his story, saying he had hoped to win early release.

It also provided this tidbit.

Michael Toney, who recently became the 136th person exonerated and freed from death row since 1973, died in a car crash on October 3 in East Texas.  He had been released from jail one month ago on September 2 after the state dropped all charges against him for a 1985 bombing that killed three people.

How very, very sad.

Please read carefully what Michael Toney had to say about Lamont Reese. I won't ask anyone to submit a discussion of the case. I'll simply ask instead for someone to post a comment regarding whether or not this case deserves further consideration, and a brief thought on why.

I'll wait a bit before providing my perspective.

Good night.

The Possibly Transformative Case of Lamont Reese

This may be just another of several million blog posts that go down the cyber drain hole every day. On the other hand, this may be the post that launches the next phase of the actual innocence movement. Please keep reading.

There are approximately 60 innocence projects in the US. In a good year, some of them may help free one, rarely two, factually innocent people from prison.

There are somewhere between 20,000 and 200,000 factually innocent people incarcerated in the US. I'm working to substantiate and narrow that order-of-magnitude estimate, but for now I'll simply submit it in good faith.

While I always caution users against attempting math without formal training, the point here is painfully obvious. Innocence Projects, noble and praiseworthy as they certainly are, cannot possibly handle the workload that awaits them. Check with any of them. They are swamped, overloaded, deluged, inundated, barraged, engulfed and overwhelmed while being underfunded, understaffed and under-appreciated.

We need a new model for investigating potential cases of wrongful convictions, for setting right what we have, as a society, done wrong.

At this point, I formally propose nothing. I have, however, been thinking about thousands (rather than dozens) of innocence projects, each representing a single individual (rather than a large region of the country), each sharing its experience, skill, and talent with the others via the internet.

I am entertaining the idea of an Army of Davids Innocence Network.

I adopt here Glenn Reynolds' concept of an Army of Davids. From the Amazon description, I excerpt the following explanation:

In Army of Davids, author Glenn Reynolds, the man behind the immensely popular Instapundit.com, provides an in-depth, big-picture point-of-view for a world where the small guys matter more and more. Reynolds explores the birth and growth of the individual's surprisingly strong influence in: arts and entertainment, anti-terrorism, nanotech and space research, and much more.

"George Orwell feared that technology would enable dictators to enslave the masses. Glenn Reynolds shows that technology can empower individuals to determine their own futures and to defeat those who would enslave us." -- Michael Barone

"Blogger extraordinaire Glenn Reynolds shows how average Americans can use new technologies to overcome the twin demons of corporate greed and incompetent government. Reynolds is a compelling evangelist for the power of the individual to change our world." -- Ariana Huffington

"Glenn Reynolds is an engaging, uniquely qualified guide to the do-it-yourself movements transforming business, politics, and media." -- Virginia Postrel

From personal experience, I have reason to believe that an Army Of Davids approach to innocence project efforts can work. From that same experience, I know that such efforts are not for the faint of heart, the easily discouraged, or those equipped only with good intentions. And based on my experience, I fear both failure and success.

So rather than simply jumping in, I've decided to dip my toe.

Now finally, after all this time, I am ready to mention Lamont Reese, the subject of this post. And now that I have mentioned him, I won't be speaking much more of him, at least for now. That's because I hope to work through his case with you, the readers of this blog. I want to see if we can work together to investigate the case of Lamont Reese and, if appropriate, set right what we may have done wrong.

I'm giving you an opportunity to become directly involved in the work of identifying and freeing those we have wrongfully convicted. I am giving you the chance to join an Army of Davids, to be among the very first to enlist in a ragtag team of actual innocence foot soldiers.

The first step, assuming you wish to participate, is to review the paltry evidence available on the internet. Usually I summarize these cases for you, but this is actual innocence boot camp, and you must do this yourself. Should any of you decide to investigate and to prepare a cogent summary of why one might be concerned about this case, I will be pleased to post your summary here, on this blog, under your name if you wish to reveal it. Email your summary to skepticaljuror@gmail.com

Once we have a decent overview of the case, we will decide whether it's worth pursuing further and, if so, what we might do next. For now, however, you are on your own. I offer but two links to get you started.

Texas Execution Information Center

Wikipedia