In my post “DNA: a civil right” of March 26, 2010, I described why I firmly believe that (post-conviction) access to DNA testing for the condemned (in this case Henry Skinner) should not hinge on how formalistic the question to the courts is phrased. It should be implied.
Today, the New York Times published an editorial that supports my statement: “Testing such evidence should not be left to a strategic decision; it should be standard in a serious criminal investigation.”
It correctly states: “Justice Sonia Sotomayor correctly noted that Mr. Skinner’s trial attorney made a strategic decision not to request DNA testing of the contested material in preparation for his trial, likely fearing the testing would further implicate his client. But to disqualify Mr. Skinner now from obtaining the testing would elevate game-playing over truth-seeking and ignore the need to ensure, best as possible, that the right person has been convicted.”
Hank Skinner is on death row for the 1993 murders of Twila Busby and her two mentally impaired sons Randy Busby and Elwin Caler. Skinner is supported by various organizations who are fighting for post-conviction access to pretrial evidence to be tested with modern technology in particular testing items for DNA. There is substantial doubt that Skinner is wrongfully convicted in this case.
The state announced in 2012 that a crucial piece of evidence is lost. There are still unanalyzed crime scene objects in this case as well as DNA from an unknown contributor found on a knife at the crime scene. On February 3-4, 2014 an evidentiary hearing took place in Pampa, Texas. The prosecution argued that the tests only confirmed Skinner’s guilt. The defense said the results raised enough questions about the real identity of the perpetrator. A jury would not have condemned him to death.
In July 2014, Judge Steven Emmert ruled that it was reasonably probable that Skinner would have been convicted of triple murder even if the DNA evidence had been available at his 1995 trial. In 2016 we learned that a new DNA interpretation might shed a clearer light on this case. However, there is nothing in the public domain about test results.