Actually, it's worse than that. In 2000, on an episode of the Nancy Grace Show, Protess publicly challenged Skinner's prosecutor to test the remaining biological evidence, even offering to pay for the testing himself. "He agreed, and I actually sent him an e-mail complimenting him," Protess says. But when mitochondrial DNA testing of the hair Busby was clutching in her hand at the time of her death didn't match Busby or Skinner, the state halted the testing of any more evidence and has refused to run any tests since. As Skinner's execution neared in March, Texas Gov. Perry again declined to grant Skinner a stay so the evidence could be tested, even after a lab in Arizona offered to conduct the tests for free. Never mind that all of this comes amid continuing controversy over Texas' 2004 execution of Cameron Todd Willingham, a man many believe was innocent, as well as allegations that Texas Gov. Rick Perry subsequently undermined an investigation into the dubious forensic evidence used at Willingham's trial.
For the prosecution, refusing to test the crime scene evidence is about establishing finality and closure, regardless of justice. But Skinner's defense counsel wasn't interested in discovering the truth either. At trial, Skinner could have asked for DNA testing of the remaining evidence. Skinner actually told his attorney Comer, in writing, that he wanted the tests. But Comer declined on his behalf. Comer says he feared the test would have confirmed Skinner's guilt. That's possible, Comer's shortcomings aside. Criminal defense attorneys often represent guilty people, and they wouldn't be doing their jobs if they allowed for testing that may confirm a client's guilt. Of course, Comer also seems to have been incompetent. But Skinner's request for the tests doesn't mean his attorney would have been obligated to ask for them.
Nor does Skinner have a constitutional right of due process to DNA testing following conviction. In a case last year, the Supreme Court rejected exactly this proposition, and so Skinner is asking the court to revisit the question under federal civil rights law. In District Attorney's Office for the 3rd Judicial District v. Osborne, last year's case, Justice Alito argued in a concurring opinion that guilty people could refuse to request DNA testing at trial, then prolong the appeal process (and stave off execution) by requesting DNA testing afterward. To find a right to post-conviction testing in the Constitution's protection of due process, Justice Samuel Alito wrote in his concurrence, "would allow prisoners to play games with the criminal justice system."
That's precisely why the testing should be done before trial. Arguing over which evidence gets tested shouldn't be part of either side's strategy. The prosecution and the defense should begin knowing that all of the evidence has been tested or will be. For old cases like Skinner's, if there's significant doubt about the defendant's guilt that testing could resolve, legislators shouldn't wait for the courts—they should make sure themselves that testing is done. A typical DNA sample costs about $1,000 to analyze, with a usual turn-around time of about 30 days. Innocence Project spokesman Eric Ferrero told me that his organization on average pays about $8,500 per case for DNA testing, since most cases have multiple samples of evidence.
No less a death penalty supporter than George W. Bush said in 2000, when he was governor of Texas, "Any time DNA evidence can be used in its context and be relevant as to the guilt or innocence of a person on death row, we need to use it." Bush then granted a stay of execution to accused killer Rickey Nolen McGinn to allow for such testing. It confirmed McGinn's guilt. Did McGinn game the system to buy extra time? Probably. Does it matter? McGinn got an extra month of life. Everyone else in Texas got certainty that the state didn't execute an innocent person—and that the actual killer wasn't still running free.
DNA testing may well confirm Hank Skinner's guilt, too. But the incriminating DNA may also match Robert Donnell (or someone else). In which case Skinner would become the 252nd person to be exonerated by DNA. Either way, we'd know. By refusing to answer the question, Texas officials are acting as if preserving a conviction is more important than knowing for certain who killed Twila Busby and her sons.
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