Former Head of FBI and Texas Governor Call for Delay in Texas Execution

William Sessions (pictured), the former Director of the FBI, and Mark White, former Governor of Texas, called on Texas to delay the November 9 execution of Hank Skinner and allow access to untested DNA evidence. Skinner, who has always maintained his innocence, has repeatedly petitioned for testing of several items from the crime scene that contain DNA. The items - a windbreaker jacket similar to the one an alternative suspect wore, the victim’s fingernail clippings and human hairs found in the victim’s hands - could conclusively prove the presence of a third party, or could confirm Skinner’s guilt. In an op-ed in the Austin American-Statesman, Sessions and White wrote, “We hope the courts’ actions will reflect the belief of the majority of Texans that inmates should have access to DNA testing that could prove their innocence. This belief also is shared by more than a dozen current and former elected officials and former judges, prosecutors and law enforcement, who have joined together to urge state officials to test the DNA evidence.” The op-ed continued, “It is unconscionable that the prosecutor refuses to test the available DNA evidence when such testing has the power to confirm the verdict or prove the other suspect’s guilt. Testing the evidence is just common sense.” (DPIC Note: On November 3, a Gray County trial court denied without comment Skinner’s request for DNA testing. An appeal is being filed with the Texas Court of Criminal Appeals.) Read full op-ed below. UPDATE below.

UPDATE: Henry Skinner was granted a stay of his Nov. 9 execution date by the Texas Court of Criminal Appeals on Nov. 7 to consider his request for DNA testing. The Order accompanying the stay stated: “Because the DNA statute has changed, and because some of those changes were because of this case, we find that it would be prudent for this Court to take time to fully review the changes in the statute as they pertain to this case.” (Skinner v. Texas, No. AP-76-675 (Nov. 7, 2011)).

No good reason for state to deny DNA testing
Mark White and William Sessions, Special Contributors

Texas officials have been running from the truth in the Hank Skinner case for more than 10 years. The state plans to execute Skinner on Nov. 9, but leaders continue to bury their heads in the sand, inexplicably refusing to test DNA evidence that could prove whether Skinner is guilty.

Skinner was convicted of the 1993 murder of his girlfriend, Twila Busby, and her two adult sons, Elwin Caler and Randy Busby. He has always maintained his innocence and has repeatedly sought testing of several untested items from the crime scene that contain DNA. But the Gray County district attorney has continually refused to allow that testing.

State and federal courts have the opportunity to order DNA testing. If the courts drop the ball, however, Gov. Rick Perry should intervene so Skinner won’t be executed before DNA testing can be performed.

We hope the courts’ actions will reflect the belief of the majority of Texans that inmates should have access to DNA testing that could prove their innocence. This belief also is shared by more than a dozen current and former elected officials and former judges, prosecutors and law enforcement, who have joined together to urge state officials to test the DNA evidence.

We agree that the death penalty is an appropriate punishment for certain crimes. But we also are united in our deep conviction that when it comes to the death penalty, there is no room for uncertainty. The DNA testing that Skinner seeks could prove that he committed the murders, or it might prove he didn’t.

A 2000 investigation uncovered new evidence that an alternative suspect stalked and harassed Busby on the night of the murders. Witnesses also saw him frantically cleaning his truck immediately following the murders. A windbreaker, similar to one that he often wore, was found next to Busby’s body. Yet no one has ever tested the DNA evidence from perspiration and human hair on this windbreaker. Also untested are Busby’s fingernail clippings and human hairs found in her hands — items which could pinpoint the identity of the individual with whom she struggled before her death.

It is unconscionable that the prosecutor refuses to test the available DNA evidence when such testing has the power to confirm the verdict or prove the other suspect’s guilt. Testing the evidence is just common sense. The only potentially legitimate objection would be cost, but an outside group has offered to pay for the test, meaning there is literally no cost to the state. Further, the state continues to waste untold taxpayer dollars fighting this test — vastly more than it costs to just test the evidence.

Also incredible is that the prosecutor moved to set a November execution date despite the fact that two court proceedings involving the DNA testing are still in progress. The Legislature passed an important law this summer that should entitle Skinner to the long-sought DNA testing, but Skinner is still waiting for Texas courts to fully review the claim.

Additionally, the U.S. Supreme Court court ruled last year that Skinner has a right to file a claim under a federal civil rights law to get access to the DNA evidence. However, the Supreme Court sent the case back to the district court to hear that claim, and Skinner is still awaiting a district court ruling. Either of these proceedings could result in an order to test the DNA, but neither has fully played out in the courts. At the very least, the prosecutor should have waited for these proceedings to conclude before seeking an execution date. If the courts do not intervene, Perry must stop the state’s effort to rush Skinner to the execution chamber before DNA testing.

It’s been said that the truth will set us free. The fact is that the truth might or might not set Skinner free, because until the evidence is tested, we will not know whether he is innocent or guilty. But the truth will certainly free Texans from the burden of uncertainty in their criminal justice system. Texas officials should take their heads out of the sand, stop the scheduled execution, and order the DNA testing.

White served as Texas governor from 1983 to 1987 and Texas attorney general from 1979 to 1983. Sessions formerly served as the chief judge of the U.S. District Court for the Western District of Texas and as director of the FBI. They both serve on the Constitution Project’s Death Penalty Committee.

(M. White and W. Sessions, “No good reason for state to deny DNA testing,” Austin American-Statesman, November 2, 2011). See New Voices and Innocence.