[JURIST] The Texas Court of Criminal Appeals [official website] on Monday stayed the execution [order, PDF] of convicted murderer Henry “Hank” Skinner [advocacy website] in order to review changes to a state law that may permit DNA testing in relation to his case. Skinner, who was convicted in 1995 of killing his girlfriend, Twila Jean Busby, and her two adult sons, was scheduled to be executed Wednesday. Skinner and his attorneys argued that the court must consider a new law [AP report] passed by the Texas legislature that permits an offender to request DNA testing, despite refusing the testing as a trial strategy. Skinner’s counsel had refused DNA testing at the time of Skinner’s 1995 trial for fear that the testing would bolster the prosecution’s case. Attorneys for the state contend that the law, which went into effect on September 1, does not apply. The court, however, granted Skinner’s plea for consideration of the new Texas statute:
Texas Code of Criminal Procedure Chapter 64, which provides for DNA testing, has undergone several changes since its creation, but those changes have never been Skinner reviewed in the particular context of this case. 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.
The court also ordered that the lower court submit its legal determinations for denying the request for new testing so that Skinner may make a meaningful appeal. The stay does not guarantee that evidence will be tested.
Skinner has insisted he is innocent, saying he was not capable of committing the murders because of the amount of drugs and alcohol in his system on the day of the murders. While the prosecutors in the case did rely on some DNA evidence in the case, Skinner’s attorneys argue they were selective in the tests they conducted. In March, the US Supreme Court [official website] ruled [opinion, PDF] 6-3 for Skinner in Skinner v. Switzer [Cornell LII backgrounder] that a convicted prisoner seeking access to biological evidence for DNA testing may assert a civil rights claim [JURIST report] under Section 1983 [text]. A year earlier, the Supreme Court granted a temporary stay of execution [JURIST report] just one hour prior to Skinner’s scheduled execution so he could pursue his civil rights claim. In District Attorney’s Office v. Osborne, the court held that a defendant does not have the right to obtain post-conviction access to the state’s biological evidence in order to do DNA testing. The decision involved a claim for access under section 1983, but the majority rejected that approach saying it “would take the development of rules and procedures in this area out of the hands of legislatures and state courts shaping policy in a focused manner and turn it over to federal courts applying the broad parameters of the Due Process Clause.”