Judge considers DNA tests for convicted killer

October 25, 2011 - 12:45 PM

HOUSTON (AP) — Just weeks away from execution, a Texas death row inmate is asking the courts to force prosecutors to turn over knives and clothing that were never tested for DNA, claiming that the evidence could show he didn't kill his girlfriend and her sons nearly two decades ago.

But prosecutors say the latest request from Henry Watkins Skinner, who came within an hour of lethal injection last year before the U.S. Supreme Court stepped in, is an empty tactic to again delay his death.

Both sides will argue their case Monday in Amarillo before federal Magistrate Judge Clinton Averitte. The hearing comes after the U.S. Supreme Court ruled that Skinner could ask for the untested evidence, but left unresolved whether those items had to be surrendered by Gray County District Attorney Lynn Switzer.

The ruling came in a federal lawsuit that Skinner filed against Switzer, claiming the state violated his civil rights by withholding access to the evidence. Prosecutors want the lawsuit tossed, while defense attorneys are asking Averitte to delay ruling on the federal suit until the DNA testing issue is decided at the state-court level.

Skinner, 49, is scheduled for execution Nov. 9.

Skinner was sentenced to death for the 1993 deaths of his girlfriend, 40-year-old Twila Busby, and her sons Elwin "Scooter" Caler, 22, and Randy Busby, 20. The victims were strangled, beaten or stabbed on New Year's Eve at their home in Pampa in the Texas Panhandle.

About three hours after their bodies were discovered, police found Skinner hiding in a closet in the home of a woman he knew. Tests showed that blood of at least two victims was on him, and authorities said a trail of blood led police from the bodies to his hiding place a few blocks away.

Skinner has acknowledged being inside the house where the killings took place but has insisted he couldn't be the murderer because he was passed out on a couch from a mix of vodka and codeine. In a hand-written Aug. 31 affidavit, Skinner told the court: "I am actually, factually and totally, legally and any other definition, innocent of this crime."

The evidence now being sought was not tested at the time of Skinner's trial because his lawyer feared the results would hurt his case. But his attorneys now argue that forensic DNA testing "has a strong likelihood of confirming Mr. Skinner's claim."

The untested evidence includes vaginal swabs taken from Busby during an autopsy, fingernail clippings, a knife found on the porch of Busby's house, a second knife found in a plastic bag in the house, a towel with the second knife and a jacket next to Busby's body.

Skinner contends that Caler, who had several stab wounds, likely bled on him while trying to roust him from his stupor. Skinner has said the woman's blood likely got on his clothes because they were nearby as she was being bludgeoned with a pickax handle. He and his attorneys point to the woman's now-deceased uncle, Robert Donnell, as the possible killer.

Skinner's lawyers have already asked the state courts to delay the execution and want Averitte to withhold any decision on the federal lawsuit until a request for DNA testing before Skinner's trial court — the third such request from Skinner — is resolved there. Defense attorneys also argue that a new state law allows DNA testing of evidence even if the offender chose not to seek testing before trial.

Prosecutors contend the DNA request is a delay tactic, saying Skinner's claims about the evidence aren't new and that other courts have already decided the issue. The Texas Attorney General's Office, in its written arguments, said the new state law still blocks additional DNA testing in Skinner's case.

"It is the responsibility of this court to close the door on the dilatory and piecemeal litigation tactics that Skinner has deployed, and establish a precedent that will deter other death row inmates (and their lawyers) from following Skinner's example," Texas Solicitor General Jonathan Mitchell wrote to the court.