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Among the items found next to the body of Twila Busby in 1993 was a windbreaker, spattered with blood, stained with sweat, and with two human hairs attached. Busby had been raped and bludgeoned to death in the home she shared with her boyfriend and her two grown sons, who were also killed, in the Texas Panhandle town of Pampa. Also found in the house were two knives, one of which was a likely murder weapon, and a bloody towel.

With so much physical evidence surrounding the deaths of Busby and her sons, the potential for DNA leading conclusively to the killer was enormous. But eighteen years later, none of the items has ever been tested. Neither were fingernail scrapings taken from Busby, nor swabs obtained from her rape kit.

Texas authorities long ago decided they knew who committed the crime: Busby’s boyfriend, Hank Skinner, the only other person known to be in the home that night, and who survived the brutal attack. Skinner was convicted of the murders in 1995 and sentenced to die. Last year, he came within less than an hour of execution before the US Supreme Court intervened. Now 49, he has consistently and vehemently denied any role in the grisly killings—and, he maintains, the bloody pile of evidence found at the scene should prove his innocence. Nevertheless, unless the state’s highest criminal court or Governor Rick Perry put a stop to it (or unless the US Supreme Court intervenes), Skinner may be executed on November 9, without the state ever knowing for sure if it is punishing the right man.

Texas was not always so reluctant to do DNA testing. According to his 30-year-old daughter, Natalie, the state began testing on hairs found at the scene years ago—including of one found clutched in Busby’s hand. The first tests came back inconclusive, and the state pushed forward. But when the hair was found not to match Skinner—results suggested it belonged to a maternal relation of Busby’s—the state ceased all testing. That was in 2000. Since then, no additional testing of any of the remaining evidence has taken place. “As soon as that result came back, they shut it down and have refused any more testing,” says Natalie Skinner.

In 1999, the Innocence Project at Northwestern University took up Skinner’s case, uncovering additional complicating evidence, including statements from a key witness who recanted statements implicating Skinner, as well as a potential alternative suspect, an uncle who had reportedly stalked—and some say sexually assaulted—Busby in the past. That man, Robert Donnell, died in 1997.

A Texas law passed in 2001 provides for post-conviction DNA testing in cases where untested evidence remains—a provision that, in a state with forty-four DNA exonerations to date, 85 percent of Texans support. The state’s refusal to test the evidence in the Skinner case is considered unacceptable, not just by his supporters but by current and former Texas lawmakers and law enforcement officials.

“We believe that the death penalty is an appropriate punishment for certain crimes, and we understand that the DNA testing might well show that Mr. Skinner is deserving of that punishment,” seventeen officials, including several former state prosecutors and police officers, wrote in a letter to Perry, Pampa District Attorney Lynn Switzer and Texas Attorney General Greg Abbott, delivered on October 27. “But we are also steadfast in our belief that when it comes to the ultimate penalty, we must do everything in our power to ensure certainty before taking the irreversible step of carrying out an execution.”

Skinner does not deny that he was in the home the evening that Busby was murdered, but insists that he was knocked out by a potent cocktail of booze and codeine—the consequence of an allergic reaction to the pain medication (an allergy shared by his daughter, Natalie). Toxicology testing revealed a near fatal dose of drugs in Skinner’s system; even if he had not been passed out, his defenders have argued, Skinner certainly would not have had the strength or coordination to incapacitate three adults. Skinner has always maintained that he awoke to find the carnage.

Was someone else was at the crime scene on that fateful night? DNA could answer this question. Skinner and his lawyer, Rob Owen, a law professor at the University of Texas, Austin, where he co-directs the school’s Capital Punishment Clinic, have been pressing for additional testing since 2001, when Texas passed its post-conviction DNA law. Skinner has offered to pay for the testing. But for nearly a decade, Gray County, Texas, DA Switzer has fought in court to deny any access to the untested evidence. In 2003, the notoriously pro-prosecution Court of Criminal Appeals, the state’s highest criminal court, sided with Switzer, ruling that DNA testing alone wouldn’t necessarily be enough to conclusively demonstrate Skinner’s innocence.

Owen returned to the court in 2007, again requesting DNA testing, and again getting rejected. This time the court justified its ruling by arguing that Skinner’s trial attorney should have requested DNA testing in 1995—and putting the blame on Skinner. (The 2001 DNA law allows for post-conviction testing where there had previously been none “through no fault of the convicted person.”) Natalie counters that her father has “been asking for this since his original trial, but his lawyer refused;” Owen says that punishing a client in perpetuity for a trial lawyer’s decision is a “jarring” redefinition of fault. “It seems to me they’re exalting technicalities over the substance of the law,” Owen said last year. The second denial prompted him to file a federal civil rights suit to access the DNA testing; in 2010, the US Supreme Court gave Skinner the green light to take that approach.

Before the civil suit could move forward, however, the Texas Legislature took action this spring to beef up the post-conviction DNA law, removing the “fault” provision. The new law passed, was signed by Perry, and went into effect on September 1; Skinner filed a new motion the following day, again seeking testing. Meanwhile, Switzer’s office sought—and obtained—a new execution date.

On November 3, without written explanation, the district court again sided with Switzer and denied access to the evidence for testing—a move that again moves the case to the Court of Criminal Appeals. Now, the question will be whether that court will follow the revised provisions of the DNA law without the “fault” provision, or whether they too will deny the request, falling back on their previous position that DNA testing alone isn’t enough to prove Skinner is innocent.

“We are deeply disappointed that the trial court has denied Mr. Skinner’s request for DNA testing,” Owen said in a statement. “…It will now be up to the Court of Criminal Appeals to give Mr. Skinner’s case the deliberate consideration that is necessary to ensure a correct result. We are confident that upon such careful review, the Court will conclude that DNA testing is necessary in this case to ensure the reliability of the verdict.”

In the meantime, Owen said “the [CCA] must stop the scheduled…execution rather than allow itself to be rushed to a hasty and ill-considered decision. The stakes in this case are too high to allow Mr. Skinner to be executed before he has a fair chance to make his case that the trial court made a grave mistake in denying his request for DNA testing.”

Of the CCA rules against him, Skinner will have a few remaining options: he can head back to federal court, where his civil rights case is being held in abeyance, pending the outcome of his state court case, and hope that the US Supreme Court intervenes again. Or, he can hope that Perry, who has presided more thabn 237 executions since taking office in 2001, will issue a 30-day stay that would allow further litigation of the DNA issue. So far, an effort to get Perry to do just that has generated more than 120,000 signatures on an online petition, says Skinner’s wife, Sandrine.

For now, Natalie is bewildered: She is hoping for the best, but preparing for the worst—and she is angry with the state of Texas. “The state has just passed a measure that, in essence, could be called the Hank Skinner [DNA testing] law. Now, the state of Texas, in its infinite wisdom, has turned around and [is] saying, ‘This is denied.’ The state is moving in one direction, and the courts don’t care,” she says. “I can’t just pretend that everything is going to be OK anymore—I have to deal with the fact that Texas wants to kill him.”

UPDATE:

The Texas Court of Criminal Appeals today granted a stay of execution for Hank Skinner, in order to give itself more time to consider his ongoing appeal seeking access to numerous items of evidence for DNA testing. In its order, the court noted that it needs to consider whether Skinner’s case is impacted by changes made this year to the state’s post-conviction DNA law. Further, the court noted that it has not received any documentation regarding why the trial court denied Skinner’s DNA testing request; the court has ordered the district court to file its findings by the beginning of December.

Skinner’s lawyer, Rob Owen, is pleased with the court’s decision. "The [CCA] in its decision today, has ensured that Mr. Skinner’s request for DNA testing will receive the thorough and serious consideration it deserves," he said. "We are grateful for the Court’s action and look forward to the opportunity to make Mr. Skinner’s case for DNA testing in that forum."

Image courtesy of Texas Department of Criminal Justice