All crime-scene evidence should be DNA tested.

The law, lawyers, and the court.
June 8 2010 9:59 AM

Certain Knowledge

Why all crime-scene evidence should be DNA tested.

Rick Perry. Click image to expand.
Texas Gov. Rick Perry 

The state of Texas was 47 minutes from executing Henry "Hank" Skinner in March when Justice Antonin Scalia gave him a last-minute stay. Last month, the Supreme Court as a whole agreed to hear Skinner's case in the fall. At issue is whether Skinner should be given access to crime-scene evidence and DNA testing that he and his lawyers say will prove his innocence. However the court comes out, Skinner's case raises a fundamental question about how police and district attorneys investigate and prosecute crimes: Why wasn't this evidence tested before Skinner's trial? And why hasn't it been tested since?

The answers lie in the adversarial nature of our criminal justice system. There are times when neither the prosecution nor the defense is particularly interested in discovering the truth. That's where policy makers need to step in. In cases like Skinner's, they should establish a common-sense rule: When there is biological evidence at the crime scene, all of that evidence should be sent for DNA testing. No exceptions.

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The details of Hank Skinner's case illustrate both the problem and how such a rule would solve it. Skinner was convicted in 1995 for the 1993 murders of his girlfriend Twila Busby and her two adult sons.

Skinner doesn't dispute that he was in the house when his girlfriend and her sons were murdered. He claims he was unconscious at the time, knocked out by a near-lethal mix of alcohol and codeine. Back in 1995, the evidence against him seemed formidable. He was present at the crime scene. He had smears of blood from two of the three victims on his shirt. Andrea Reed, Skinner's neighbor and ex-girlfriend, says Skinner came to her home shortly after the crime and first implicated himself, then told Reed a number of other implausible and contradictory stories about who committed the murders.

But Skinner has always maintained his innocence. In 1999, Northwestern University's Medill Innocence Project began looking into Skinner's conviction. As professor David Protess and his student journalists began interviewing witnesses and reviewing evidence, the state's case against Skinner  started to unravel. Reed recanted her testimony and now says she was pressured by police investigators to implicate Skinner. Toxicology reports showed the amount of codeine and alcohol in Skinner's blood at the time of the murders would have likely have rendered him unconscious or put him in a hazy stupor. His defenders say he couldn't have killed three adults in that condition. The students also found that Busby had been stalked by an allegedly lecherous uncle named Robert Donnell, whom witnesses said had approached her at a party the night of her death. She left frightened, and he appeared to have followed her. Friends say Donnell had raped Busby in the recent past. Days after the murders, a neighbor saw Donnell cleaning and repainting his truck.

There are other problems with Skinner's conviction. His court-appointed attorney, Harold Lee Comer, was a disgraced former prosecutor who left office after pleading guilty to siphoning off asset forfeiture funds in a drug case. The judge, a friend of Comer's, appointed him to represent Skinner, then ordered Comer's pay in an amount roughly equal to what Comer still owed for his own criminal conduct. Worse, Comer had previously prosecuted Skinner on a minor assault and theft charge. At Skinner's sentencing trial, the prosecution argued that those two crimes were aggravating factors that should be considered in Skinner's sentencing. Comer didn't object.

Most of these flaws have been litigated, and the courts have found that none of them is enough to win Skinner a new trial. But the most troubling aspect of Skinner's case is the biological material collected from the crime scene. Law enforcement officials tested the small blood smears on Skinner's shirt, and those matched two of the three victims. But given that Skinner admits he was at the crime scene and says he awoke to find the victims' bodies, it isn't surprising that he'd have some of their blood on his shirt. The blood on the murder weapons has never been DNA tested. Nor has any material from the rape kit taken from Busby. The state also never tested skin cells taken from under Busby's fingernails, or a blood-stained windbreaker left at the scene that witnesses say matched one often worn by Donnell. "They only tested the material they thought would implicate Skinner," Protess told me via phone. "They fixated on their suspect, and once they thought they had enough for a conviction, they stopped."

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