Special feature: Texas death row DNA case (Part 3)

By Mary A. Fischer
on Oct 13, 2010 at 8:54 am

Part 1 and Part 2 in this series were published earlier on SCOTUSblog.

Part #3: Inside Texas–Dallas D.A. “without a doubt” would test DNA evidence

–“This case has been brutal.  Why?   Because it’s Texas, that’s why.” Attorney source close to the case.

It seems that in the pursuit of truth, like real estate, location is everything.  Had convicted murderer Henry Skinner requested post-conviction DNA testing in Dallas instead of Pampa, where the triple homicide occurred, the Supreme Court would not be hearing arguments in Skinner v Switzer this Wednesday — or any other time.

While Pampa’s District Attorney Lynn Switzer decided to “stand firm” and deny access to the Skinner evidence, 370 miles away, in Dallas, fellow chief prosecutor Craig Watkins, takes an opposite stance. “If I was faced with that decision, it would be an easy one,” he told me recently. “Without a doubt, I would test all the evidence. Whether Mr. Skinner waived his right to test the evidence at his trial is irrelevant. Whether justice has been served is what’s relevant.”

Among prosecutors in Texas — and the rest of the country — Watkins is a rare breed.  Elected in 2006, he created the country’s first convictions integrity unit that relies on DNA testing denied by previous prosecutors.  The results so far: fourteen innocent Dallas County men have been released from prison.

Many believe that prosecutors in Gray County, where Pampa is located, are “holdouts.”  “The extreme position taken by the prosecutors in Gray County is not one that we encounter very often in 2010 as the vast majority of them readily agree to perform DNA testing in capital cases,” says Nina Morrison, a staff attorney for New York’s Innocence Project who worked on Skinner’s court briefs.  “That Mr. Skinner has had to battle for a simple DNA test for over 15 years and come within 45 minutes of being executed without receiving one, makes this case a real outlier.”

To understand why Pampa prosecutors are “really dug in on Skinner,” says retired Austin capital defense attorney Roy Greenwood, “you have to know the history that is mixed up with politics, money and corruption.”

It starts with Harold Comer.  Before he defended Hank Skinner in 1995 for the murders of Twila Busby and her two sons, he prosecuted him for car theft and assault.  Comer was the district attorney in Pampa from 1988 to 1992, when he resigned–and was later suspended by the Texas State Bar–after admitting that he improperly borrowed $10,000 from a drug seizure fund.

Enter Comer’s successor, John Mann, who prosecuted Skinner for the 1993 murders. “John was a very complicated guy and certainly capable of making dire mistakes,” explains Jeff Blackburn who defended cases against Mann. “He was representative of a time in west Texas when all you needed to be a successful lawyer was show up and be a great courtroom warrior.  John could sell ice to Eskimos.  He was a good old-fashioned lawyer but a really bad lawyer for the modern age. “And Comer,” adds Blackburn, “was loyal to Mann.”

The conflict of interest stuns Northwestern University professor and Medill Innocence Project founder David Protess, whose team of journalism students investigated Skinner’s case. “No wonder he didn’t really put on a defense,” Protess told me. “This is the same lawyer who had convicted Skinner, twice, and then he was supposed to fight for the DNA evidence that could have exonerated him.”

In 2000, Mann was up for re-election.  In response to questions raised in the media regarding Skinner’s possible innocence, he decided to have additional DNA material tested. “I’m going to test it all and see if I can’t put a few more nails in that man’s [i.e. Skinner’s] coffin,” Mann announced to the press.

However, he didn’t send all the evidence to Dallas lab GeneScreen, including such items as the man’s windbreaker found next to Busby’s body “that could exculpate Mr. Skinner and potentially inculpate another individual,” claim Skinner’s attorneys.

Mann did test the hairs found in Busby’s right hand, but in November 2000, as that testing was still in process, Mann lost his re-election bid. Before he left office, he announced to the press that he had been told orally by GeneScreen that the hairs, as well as blood found on them, was Skinner’s.

The problem?  It wasn’t true. The final GeneScreen report concluded:

Henry Watkins Skinner is excluded as a potential contributor to these hairs. Neither Twila Busby nor a maternal relative of Twila Busby can be excluded as the potential contributor of these hairs.

The findings bolstered Skinner’s persistent claim that the real killer was Robert Donnell – Busby’s uncle on her mother’s side and therefore a “maternal relative.”

Mann was succeeded as Gray County’s new chief prosecutor by Rick Roach, who halted any further DNA testing and later disgraced the office when he became the target of an FBI investigation triggered by two state troopers who refused to take Roach’s bribes.  In 2002, according to FBI reports summarized in news accounts, Roach offered “Rolex watches and cash to the troopers in exchange for stepping up cash and drug seizures knowing that a third of the cash and property would come back to his office” –to support his drug habit.  In January 2003, agents stormed a Pampa courtroom, opened Roach’s briefcase and found two guns and a stash of methamphetamine.  He was sentenced to five years in federal prison.

The current district attorney, Lynn Switzer, was Roach’s former assistant. While Switzer denied that she knew about her boss’ drug habit, she acknowledged at the time that she knew Roach “was obsessed by money . . . [and] collecting it in these busts.” And, she continued, “I do know we argued about the strength of the cases he wanted to pursue.”

The impact of all this on Skinner’s case? “The real story here is that when exculpatory results came back, they stopped doing further testing,” says Northwestern’s David Protess.   “They’re afraid they might have made a mistake. I admire Texas for a lot of their free thinking. But how can we allow a man to be put to death when there is physical evidence that can conclusively determine if another man did it?  Any rational person knows the answer.”

Nearly every week at the courthouse in Pampa, defense lawyer Jeff Blackburn has some legal matter that involves Lynn Switzer.  “Ms. Switzer’s office is a classic example of everything that’s wrong in Texas,” he says.  “She is an unskilled lawyer who has found that the way to stay elected is to pander to the lowest law and order denominator. Gray County is economically devastated and the political viewpoints there would make people in the Tea Party blush.”

The specter of another high-profile Texas death penalty case looms over Skinner v. Switzer. On Thursday, a judge in Austin will re-examine arson evidence used to convict Cameron Todd Willingham, who was executed in 2005 for setting a house fire that killed his three young daughters. Serious doubts remain about the forensic arson evidence presented at Willingham’s trial, which has since been discredited by arson experts.

With seventeen exonerations in Texas to date, and allegations that Willingham and four others who were executed may have been innocent, “prosecutors are appropriately defensive,” says Austin attorney Roy Greenwood. “And Skinner is probably a do or die case for them.”