March 5, 2012 - DNA ISSUE by Justice4Hank

DNA  ISSUE

STATE’S BRIEF ON THE MERITS  MARCH 5, 2012

No. AP-76,675

In the Court of Criminal Appeals of Texas at Austin HENRY W. SKINNER, Appellant v. THE STATE OF TEXAS, Appellee On Appeal from the 31st District Court of Gray County, Texas Appellee’s Brief on the Merits

GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General DAVID C. MATTAX Director of Defense Litigation DON CLEMMER Deputy Attorney General For Criminal Justice

JONATHAN F. MITCHELL Solicitor General State Bar No. 24075463 ARTHUR C. D’ANDREA Assistant Solicitor General State Bar No. 24050471 OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1695 Fax: (512) 474-2697 COUNSEL FOR THE STATE OF TEXAS

TABLE OF CONTENTS Statement Regarding Oral Argument ................................................................................... 1 Statement of Facts ..................................................................................................................... 1 Procedural History of Skinner’s Motions for DNA Testing............................................... 7 Argument ...................................................................................................................................... 9 I.

Article 64.03(a)(2)(A) Precludes Skinner’s Request for PostConviction DNA Testing Because the Evidence of Skinner’s Guilt is Too Overwhelming to be Overcome with Favorable DNA Test Results ..........................................................................................................9 A. The doctrines of collateral estoppel and stare decisis preclude Skinner from re-litigating evidentiary claims that this Court and the federal habeas court have previously rejected .................................................................................................... 10

II.

III.

Article 64.03(a)(2)(B) Precludes Skinner’s Request for PostConviction DNA Testing Because His Request Is Made To Unreasonably Delay the Execution of His Sentence and The Administation of Justice ..................................................................................28 A.

Article 64.03(a)(2)(B) Requires Courts to Apply An ActualGuilt Standard When Determining Whether Skinner Is Unreasonably Delaying The Administration of Justice............... 30

Skinner is Unreasonably Delaying the Administration of Justice Because He Had the Opportunity to Test This DNA Evidence At His Trial and Deliberately Chose to Spurn It ................................................................................................... 32

Allowing Unwarranted Access to DNA Testing Threatens to Invade the Privacy of Victims and Impose Prohibitive Costs on Local Prosecutorial Budgets............................................................................36 A.

Post-conviction DNA testing invades the privacy of victims ..................................................................................................... 37

Post-conviction testing places unreasonable pressure on State prosecutors to test every piece of evidence in their possession ............................................................................................... 38

Conclusion .................................................................................................................................. 40 Certificate of Service ................................................................................................................ 42

TABLE OF AUTHORITIES Cases Berghuis v. Thompkins, 130 S. Ct. 2250 (2010) ......................................................................................................... 27 Cf. Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U.S. 104 (1991) .............................................................................................................. 11 Coleman v. Thompson, 501 U.S. 722 (1991) .......................................................................................................... 9, 33 Ex parte Acosta, 672 S.W.2d 470 (Tex. Crim. App. 1984) .......................................................................... 11 Ex parte Hood, 304 S.W.3d 397 (Tex. Crim. App. 2010) .......................................................................... 11 Ex parte Reynoso, 257 S.W.3d 715 (Tex. Crim. App. 2008) .......................................................................... 11 Jackson v. Virginia, 443 U.S. 307 (1979) .............................................................................................................. 30 Lawrence v. Florida, 549 U.S. 327 (2007) ................................................................................................................ 9 Miranda v. Arizona, 384 U.S. 436 (1966) .............................................................................................................. 27 People v. Rathbun, 21 Wend. 509 (N.Y. Sup. Ct. 1839)................................................................................... 33 Routier v. State, 273 S.W.3d 241 (Tex. Crim. App. 2008) ...................................................................... 8, 28 Skinner v. Quarterman, 528 F.3d 336 (5th Cir. 2008) ....................................................................................... passim Skinner v. Quarterman, No. 2:99-CV-0045, 2007 WL 582808 (W.D. Tex. Feb. 22, 2007) ......................... passim Skinner v. State, 293 S.W.3d 196 (Tex. Crim. App. 2009) ................................................................... passim Skinner v. State, 122 S.W.3d 808 (Tex. Crim. App. 2003) ................................... 1, 2, 8, 27

Statutes TEX. CODE CRIM. PROC. art. 64.01(b)(1)(B) ...................................................................... 8, 34 TEX. GOVT. CODE ANN. § 311.023(4) ...................................................................................... 11

Other Authorities CNN Interview with Hank Skinner, High court asked to give death row inmate chance to prove innocence, Oct. 11, 2010 .......................................................................................................................... 36 H. Lee Sarokin, Is the Supreme Court Going Soft on Crime?, HUFFINGTON POST (Mar. 9, 2011) ..................................................................................... 36 HOWARD COLEMAN & ERIC SWENSON, DNA IN THE COURTROOM 27 (Dwight Holloway & Teresa Aulinskas eds., 1994) ...................................................... 37 J.M BUTLER, MAAFS DNA WORKSHOP, INTRODUCTION TO LCN DNA TESTING ISSUES (May 3, 2006), at www.csti.nist.gov/biotech/strbase/training.htm. .......................................................... 38 OFFICE OF THE INDEPENDENT COUNSEL, THE INDEPENDENT COUNSEL’S REPORT TO CONGRESS ON THE INVESTIGATION OF PRESIDENT CLINTON 7 (1998) ................................................................................................................................... 37 Testimony of Arthur Eisenberg, University of North Texas Health Science Center, Texas House Committee on Criminal Jurisprudence, at 1:52 (Nov. 22, 2011) ........................................................................................................ 39

STATEMENT REGARDING ORAL ARGUMENT Oral argument is unnecessary. The record already contains overwhelming evidence of Skinner’s guilt, including two chilling statements that he gave to police investigators. And this Court has already held that no reasonable jury could have acquitted Skinner—no matter what another round of post-conviction DNA testing might reveal.

See Skinner v. State, 122 S.W.3d 808 (Tex. Crim. App. 2003).

Skinner has brought this vexatious and meritless lawsuit only to delay his execution date, and this Court should not accommodate his dilatory tactics by holding oral argument in this case.

STATEMENT OF FACTS Hank Skinner stands convicted of murdering his live-in girlfriend, Twila Busby, and her two mentally disabled sons, 22-year-old Elwin “Scooter” Caler, and 20-year-old Randy Busby. The murders occurred more than nineteen years ago, at a house shared by Skinner and Ms. Busby. Skinner v. State, 293 S.W.3d 196, 204– 07 (Tex. Crim. App. 2009); Skinner v. State, 122 S.W.3d 808, 811 (Tex. Crim. App. 2003). At midnight on New Year’s Eve, a police officer was dispatched to Skinner’s house and discovered Scooter dying on a neighbor’s porch, with a blanket pressed against a mortal stab wound under his left arm. He died at a hospital, 45 minutes later. Inside Skinner’s house, the police officer discovered the body of Twila Busby on the living room floor. She had been strangled into unconsciousness and then beaten at least fourteen times about the face and head with a mattock handle. The

mattock handle, stained with blood and matted with hair, was leaning against the couch. In a bedroom, the officer discovered the body of Randy Busby, laying face down on his bunk bed. He had been stabbed repeatedly in the back. Skinner’s bloody handprints were found throughout the house. Skinner, 293 S.W.3d at 204– 07; Skinner, 122 S.W.3d at 811. Skinner does not dispute that he was at home when all three murders occurred, and that he left before the police arrived. Skinner Br. at 3. Yet Skinner did not call the police or seek medical attention for the victims—even though Scooter Caler was still alive when Skinner fled the scene. Instead, Skinner walked four blocks to the house of Andrea Reed, his ex-girlfriend, dressed in clothes soaked with the victims’ blood and wearing socks but no shoes. Skinner arrived at Reed’s house with a cut wound in the palm of his hand, but rather than go to the hospital Skinner insisted on stitching the wound himself. Skinner threatened to kill Reed and her children if she called the police. When the police arrived, Skinner hid in a closet. Skinner, 122 S.W.3d at 811; see also Skinner v. Quarterman, 528 F.3d 336, 39–40 (5th Cir. 2008).

When the police informed Skinner that he was being

arrested on outstanding warrants unrelated to the murders, Skinner responded: “Is that all?” Skinner v. Quarterman, No. 2:99-CV-0045, 2007 WL 582808, at *39 (W.D. Tex. Feb. 22, 2007). The next morning, Skinner gave a videotaped statement to the police, which was admitted into evidence at his federal habeas hearing. (The video and transcript are attached to this brief as exhibits.) In the video, Skinner admits that he fought

with Twila Busby on the night of the murders because he caught her in bed with another man: MR. SKINNER: [W]hen I got back, she was in bed with Shane Bromlow . . . . I seen her in there with him, and I got real mad and I run him out of the house, and we started arguing and fighting. See Interview of Henry Watkins Skinner by Terry Young (Jan. 1, 1994), Skinner v. Quarterman, No. 2:99-CV-0045, 2007 WL 582808 (W.D. Tex. Feb. 22, 2007) (Resp. Ex. 35-A), at Tr. 4:16-25. Skinner’s statement of facts does not mention this confession, and his treatment of this evidence, while literally true, might mislead the Court into overlooking it. See Skinner Br. at 3 (“[T]here was no evidence that he had any motive to kill his girlfriend and her sons.”) (emphasis added) Skinner also admitted that he handled the murder weapon, that the fight occurred in same room where Ms. Busby’s body was found, and that the fight turned violent and bloody: MR. YOUNG: What were you arguing about? MR. SKINNER: About him and about her running off and leaving the house after I asked her not to, and I — I don’t remember where the stick came from. I know that she had it. She hit me with it and I took it away from her, I think, and — MR. YOUNG: What kind of stick? MR. SKINNER: Oh, it was just a — I think it was a mattock handle. MR. SKINNER: I think I remember seeking blood on her and on me. I thought we were just fighting and she just passed out or something. I don’t know.

MR. YOUNG: Where did this happen? MR. SKINNER: In the living room. (Resp. Ex. 35-A), at Tr. 5:4-24. Once again, Skinner’s statement of facts deals with this problematic statement with a subtle qualifier rather than forthright acknowledgement. See Skinner Br. at 3 (“There was no physical evidence showing that Mr. Skinner had handled any of the possible murder weapons.”) (emphasis added). When pressed for details, Skinner blamed the violence on Ms. Busby, her drunkenness, and on her refusal to follow his orders: Mr. SKINNER: We were fighting and arguing at first and I pushed her down and then the fight ended, and she went in the back room and then came back with the stick and hit me in the back with the stick, and then she had me down and knocked — it knocked the breath out of me and then knocked me down to the ground. And then she was on top of me and she had the stick across my shoulders. See, she was real, real drunk, real drunk. . . . At some point, the fight kind of let up for a minute and I asked her where she had been. She told me she had been over at Howard Mitchell’s house, and she’s forbidden to go over there by me . . . . And so, we started arguing and fighting about that. (Resp. Ex. 35-A), at Tr. 7:14-8:6. This led to “a shoving match,” during which “the stick got brought back into play”—and Skinner admits that he “thinks” that he “hit her with it”: MR. SKINNER: She kept saying Howard was her friend, Howard was her friend, and we got into a shoving match. And then the stick got brought back into play somewhere along the line. I can’t remember if she picked it up or I picked it up or — or what happened.

I just remember falling around and I remember — I remember she was swinging the stick at me and I was trying — I rolled up under the coffee table so she couldn’t hit me, and I think she turned the coffee table over or I did getting out from under it. I got the stick away from her again, and I think I hit her with it. (Resp. Ex. 35-A), at Tr. 8:6-8:17. Then Skinner told the police that the last time he saw Ms. Busby, she was “laying on the floor” with “blood on her head”: MR. YOUNG: How was she the last time that you can remember seeing her? MR. SKINNER: She — she — she was laying in the floor, and — *** MR. SKINNER: I remember seeing her laying on the carpet, and it seems — seems like to me she had some blood on her head, and I had blood on me, and I thought it was mine. I didn’t know. I don’t know. (Resp. Ex. 35-A), at Tr. 8:22-9:9. Next, Skinner fought with Scooter: MR. SKINNER: The next thing I remember after that sometime while we was fighting, I — I think Scooter run up behind me and grabbed me by the neck. He had me, you know, like a chokehold — *** MR. SKINNER: — And I got away from him, and I don’t remember what happened to him after that. (Resp. Ex. 35-A), at Tr. 9:10-9:16.

Skinner’s confession makes no mention of defending himself from Robert Donnell or any other mysterious attacker. But he fully recalled leaving for his exgirlfriend’s house—drenched in the blood of all three victims—immediately after fighting with Ms. Busby and Scooter: And when it seemed like the fight was over, I — I guess it was over, I got up and left. I put my clothes on and I walked over to Andrea Medley’s house. (Resp. Ex. 35-A), at Tr. 9:17-9:20. Three days later, after his arraignment, Skinner gave another statement to police, which was introduced into evidence at trial and at the federal habeas hearing. Skinner admitted that he “might have killed Twila,” but suggests that he acted in self-defense: HANK: I think Twila came home drunk and had that knife. I don’t know if she stabbed the boys and then we got in a fight or tried to stab me or what the hell happened. . . . But I think she’s the one that cut my hand. . . . Whose murder am I charged with? SHERIFF: You’re charged with all three. If you had just killed one person, it would be murder. . . . If you killed two or more people in the sequence of one crime, then it becomes capital murder. *** HANK: I can see me arguing with Twila. I can might even see maybe I might have killed her. But I can’t see killing them boys. RX 36-A. Before trial, the State of Texas gave Skinner an opportunity to test the DNA evidence that he now wants tested. Skinner, 2007 WL 582808, at *20-*32. But

Skinner and his trial attorneys made an informed, tactical decision to forego that opportunity. Id. As Skinner’s trial attorney explained in federal district court, he decided against more DNA testing because he knew that further testing could only implicate and not exonerate his client, as well as undermine the defense’s theory that Skinner had lain comatose on the coach while Twila Busby and her sons were murdered. Skinner’s trial team also wanted to attack the government at trial for its failure to test all the evidence, and use those omissions to plant seeds of doubt in the minds of jurors. Id. The federal habeas court found that this was reasonable trial strategy and dismissed Skinner’s ineffective-assistance-of-counsel claims. Id., at *19. Skinner also offered to plead guilty to first-degree murder prior to trial in exchange for a life sentence.

See Habeas Evid. Hr’g Tr. at 135.1

But no plea

agreement was reached, and the jury convicted Skinner of triple homicide and sentenced him to death.

PROCEDURAL HISTORY OF SKINNER’S MOTIONS FOR DNA TESTING This Court has twice rejected Skinner’s efforts to obtain DNA testing under article 64 of the Code of Criminal Procedure. The Court’s rulings rested on two independent grounds. The Court rejected Skinner’s first motion because he failed to satisfy article 64.03(a)(2)(A), which (at the time) withheld DNA testing unless “the

Although plea negotiations are usually kept confidential, Skinner accused his trial lawyers of ineffective assistance in his federal habeas proceedings, waiving the attorneyclient privilege and causing his plea offer to become part of the public record.

convicted person establishes by a preponderance of the evidence that . . . a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing.”

TEX.

CODE CRIM. PROC. article 64.03(a)(2); Skinner v. State (Skinner I), 122 S.W.3d 808, 811 (Tex. Crim. App. 2003). The legislature has since amended that provision to impose an even higher standard for those seeking post-conviction DNA testing; under the current statute, the convict must “establish[] by a preponderance of the evidence that [he] would not have been convicted if exculpatory results had been obtained through DNA testing.” TEX. CODE CRIM. PROC. article 64.03(a)(2)(A). See also Routier v. State, 273 S.W.3d 241, 257 (Tex. Crim. App. 2008) (holding that under the post-2003 version of article 64.03(a)(2)(A), “[t]he defendant must prove that, had the results of the DNA test been available at trial, there is a 51% chance that the defendant would not have been convicted.”). This amendment had been enacted at the time this Court rejected Skinner’s first motion for DNA testing, but it did not apply to Skinner’s case because his motion was filed before September 1, 2003. The Court rejected Skinner’s second motion for DNA testing because Skinner failed to satisfy article 64.01(b)(1)(B), which (at the time) prohibited post-conviction DNA testing if the convict could have tested the evidence at the time of his trial and was at “fault” for failing to do so. See TEX. CODE CRIM. PROC. art. 64.01(b)(1)(B), repealed June 17, 2011; Skinner v. State (Skinner II), 293 S.W.3d 196, 204–07 (Tex. Crim. App. 2009). The Court held that this provision precluded post-conviction

DNA testing because Skinner had the opportunity to test the evidence during his trial and chose to forgo that opportunity as a matter of “sound trial strategy.” Skinner II, 293 S.W.3d at 202. And because Skinner failed to establish ineffective assistance of counsel, the tactical decisions of his trial attorneys are imputed to him under the law of agency. See Coleman v. Thompson, 501 U.S. at 753; Lawrence v. Florida, 549 U.S. 327 (2007).

ARGUMENT I.

ARTICLE 64.03(A)(2)(A) PRECLUDES SKINNER’S REQUEST FOR POSTCONVICTION DNA TESTING BECAUSE THE EVIDENCE OF SKINNER’S GUILT IS TOO OVERWHELMING TO BE OVERCOME WITH FAVORABLE DNA TEST RESULTS. Article 64.03(a)(2)(A) blocks post-conviction DNA testing unless the applicant

“establishes by a preponderance of the evidence that . . . [he] would not have been convicted if exculpatory results had been obtained through DNA testing.” CODE CRIM. PROC. article 64.03(a)(2)(A).

TEX.

Skinner cannot satisfy this standard

because evidence of his guilt is overwhelming—even if one assumes that further DNA testing will yield the most favorable possible results for Skinner. In addition, this Court’s ruling in Skinner II considered and rejected almost all of the evidence that Skinner offers in his current application; those factual issues are precluded from relitigation in this proceeding. The only new evidence that Skinner offers for this Court is an unsworn declaration from Canadian toxicologist Harold Kalant, which falls far short of satisfying the demanding standard required by article 64.03(a)(2)(A).

The doctrines of collateral estoppel and stare decisis preclude Skinner from re-litigating evidentiary claims that this Court and the federal habeas court have previously rejected.

Litigants cannot use Article 64 proceedings to re-litigate factual issues that were decided against them in earlier proceedings.

As an example, the federal

habeas court found that Andrea Reed’s “recantation” testimony was “not truthful.” See Skinner v. Quarterman, 2007 WL 582808, *16. The state district court that rejected Skinner’s second Article 64 application likewise found that Reed’s recantation was not credible, and this Court affirmed that finding on appeal. See Skinner II, 293 S.W.3d at 204. Yet Skinner insists that this Court must disregard entirely the rulings of those previous courts, and “examine with new eyes the significance of favorable DNA test results in the context of all presently available exculpatory evidence.”

Skinner Br. at 53.

Skinner does not acknowledge the

doctrines of collateral estoppel or stare decisis, nor does he attempt explain how those doctrines might provide special dispensations for litigants in his position. Instead, Skinner insists that this Court must conduct a de novo review of the evidence because: (1) The 2003 amendments to under article 64.03(a)(2)(A) altered the required showing for obtaining post-conviction; and (2) Skinner claims that “much of the post-trial evidence upon which the present motion relies was not developed until, and even after, Mr. Skinner’s federal habeas corpus hearing in 2005.” Skinner Br. at 53. Neither of these reasons allows this court to disregard the doctrines of issue preclusion and stare decisis. Whenever a court resolves a discrete issue of fact

between two litigants—such as whether Andrea Reed’s recantation testimony was truthful—that issue is precluded from re-litigation between those parties in any other proceeding, and binds successor and inferior courts under the doctrine of stare decisis.

This remains true even if the standards for evaluating the legal

significance of the fact has changed, and even if a litigant presents additional facts and evidence in support of his legal claims. The Legislature enacted Article 64 against the background of the common-law doctrine of issue preclusion, and courts must therefore presume that collateral estoppel applies absent an express statutory abrogation. Cf. Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U.S. 104, 108 (1991); TEX. GOVT. CODE ANN. § 311.023(4).

Skinner does not even present an

argument for why this Court should exempt his Article 64 application from the principles of issue preclusion that govern every other state-court litigant—including capital litigants in state habeas proceedings. See Ex parte Hood, 304 S.W.3d 397, 403 n.21 (Tex. Crim. App. 2010) (“[T]his Court does not re-review claims in a habeas corpus application that have already been raised and rejected on direct appeal.”); see also Ex parte Reynoso, 257 S.W.3d 715, 723 (Tex. Crim. App. 2008); Ex parte Acosta, 672 S.W.2d 470, 472 (Tex. Crim. App. 1984). 1.

Both the federal habeas court and this Court have determined that Andrea Reed’s recantation testimony was “not truthful,” and that issue is precluded from relitigation under the doctrines of issue preclusion and stare decisis.

Skinner attempts to satisfy article 64.03(a)(2)(A) by trumpeting Andrea Reed’s “recantation” testimony.

See Skinner Br. at 7–11.

But many witnesses

testified in the federal habeas proceeding that Reed’s recantation was false, and the district court specifically found that Reed’s recantation was “not truthful” because it was contradicted by these disinterested witnesses. See Skinner v. Quarterman, No. 2:99-CV-0045, 2007 WL 582808, at *16. Wrote the Court: [T]he evidence presented at the evidentiary hearing and the facts before this Court simply do not support petitioner’s allegation that Reed lied at trial or was threatened by the police. First, while Reed testified at the hearing that she lied in her written statement and at trial about a number of things, her recantation was directly contradicted by a number of disinterested witnesses. In particular, Gerry Douglas testified at the hearing that, contrary to her recantation, she told him, within a matter of hours after petitioner had been in her home, that petitioner had come barging into her house, on his own accord, had run into the back bedroom, and had threatened her, telling her that if she told anyone where he was hiding that he would kill her and her kids. Connie Neighbors testified Reed told her that petitioner had told her he thought he killed Twila and the boys, that he wanted her to sew up his hand, and he had threatened her and her children if she called anyone. Finally, in her statement, Jessica Reed testified petitioner entered the house on his own and, apparently, entered and exited the bathroom on his own. Thus, Douglas’ and Neighbors’ testimony at the hearing, as well as Jessica Reed’s own statement given hours after the event, are in direct opposition to Reed’s new and/or recanted testimony that she had to help petitioner perform tasks in her home and that petitioner never threatened her life. The Fifth Circuit has recognized that recanting witnesses should be viewed with suspicion by the courts. See Wilkerson v. Cain, 233 F.3d 886, 893 (5th Cir. 2000). Such natural suspicion, coupled with the significant testimony in opposition to Reed’s recantation, renders petitioner’s assertion that Reed testified falsely at trial with little evidentiary support. See id., *15-*16 (emphasis added). See also id., at *16 (“[T]he undersigned finds Andrea Reed’s testimony at the evidentiary hearing on the issue of whether she was threatened or coerced and on the issue of whether her written statement to the police

and her trial testimony were false not to be credible. The evidence before this Court is that Reed for reasons of personal remorse or for whatever reason recanted her statement to the police and recanted her trial testimony, but such recantation is not truthful.”) (emphasis added). Skinner, however, treats Reed’s recantation testimony as established fact, see Skinner Br. at 7-10, and boldly proclaims to this Court that Reed had lied throughout Skinner’s trial without acknowledging either the witnesses who contradicted her recantation or the federal habeas court’s adverse findings until page 11 of his brief. Skinner’s lawyers try to downplay the contradicting witnesses by claiming that they “necessarily spoke only to the question of whether Ms. Reed had been coerced by agents of the State to give her trial testimony, not whether her testimony was false.” See Skinner Br. at 10. But the testimony of Gerry Douglas, Connie Neighbors, and Jessica Reed had nothing to do with whether Andrea Reed had been coerced; each of them directly contradicted the facts that Reed asserted in her recantation. Douglas testified that Reed had told him that Skinner had barged into her house uninvited and threatened to kill her and her children if she told anyone where she was hiding. Neighbors testified that Reed told her that Skinner said he thought he killed Twila, Scooter, and Elwin, and that he threatened Reed and her children if she called anyone. And Jessica Reed testified that Skinner entered the house on his own. None of this has anything to do with whether Reed had been coerced to give false testimony at trial, and everything to do with the veracity of Reed’s attempted recantation. These witnesses directly contradict the

claims in Reed’s recantation testimony that she helped Skinner into the house and that Skinner never threatened her life. Skinner’s lawyers also claim that “the testimony of those witnesses who said that Andrea Reed had told them the same story around that time—that Mr. Skinner had burst into her house and threatened her—is not inconsistent with Ms. Reed’s post-trial testimony that she was initially afraid to say anything different to anyone, fearing she would be charged as an accessory.” (emphasis added).

Skinner’s Br. at 10

But this carefully qualified statement does not account for

Jessica Reed, whose account rests on her first-hand observations of Skinner’s behavior rather than on reports of what Andrea had told her. See Skinner, 2007 WL 582808, at *9. Skinner’s lawyers do not assert that Jessica Reed was lying when she claimed that Skinner entered the house without assistance and before her mother arrived in the living room, but no court or jury can credit Andrea’s recantation testimony without necessarily concluding that Jessica’s statements were false.

And no reasonable court or jury would believe Andrea’s attempted

recantation—which purports to describe events that occurred many years earlier— over Jessica’s version of events, which has remained consistent throughout and is corroborated by other witnesses. As for the federal habeas court’s adverse finding, Skinner acknowledges that the court categorically rejected the truthfulness of Andrea Reed’s attempted recantation. See Skinner Br. at 10 (“[T]he federal magistrate judge who heard Ms. Reed’s recantation testimony chose not to credit it.”). But Skinner—without ever

acknowledging the doctrine of issue preclusion—thinks that this Court can simply disregard the federal habeas court’s conclusions because that court (according to Skinner) did not consider the truthfulness of Reed’s recantation in the context of testimony from William Lowry or Howard Mitchell, nor did it consider “the fact that Andrea Reed had no motive to change her testimony” other than to prevent injustice.

Skinner Br. at 11.

None of this allows Skinner to re-litigate the

truthfulness of Reed’s recantation testimony in this Court; litigants cannot surmount the doctrine of issue preclusion by establishing that the earlier court’s analysis was inadequate or mistaken. See, e.g., Sec. Exch. Comm’n v. Monarch Funding Corp., 192 F.3d 295, 304 (2d Cir. 1999). And in all events, the federal habeas court did specifically consider Lowry’s testimony when deciding that Andrea Reed’s recantation was untruthful, and ruled that Lowry’s testimony would remain non-credible even if Reed’s recantation were accepted as truthful: While petitioner contends that, without Reed’s false testimony, the State would have been unable to contradict the toxicologist Dr. William Lowry’s testimony that, in his opinion, petitioner was incapable physically and mentally of committing the murders due to his intoxication, there remains sufficient unrecanted testimony establishing petitioner’s abilities at the time of the murders which contradict Dr. Lowry. Specifically, it is undisputed that petitioner walked the three and a half blocks to Reed’s house shortly after the murders were committed, in the dark. (R. 26:506). Moreover, Reed has not recanted her trial testimony that petitioner told her he wanted her to stitch up his hand and that he instructed her not to call anyone, including Twila. (R. 26:493-95, 500). And, in his interview with the authorities on January 4, 1994, that was admitted into evidence at trial, petitioner admits that he awakened that night, realized his vodka bottle was gone, and went to Andrea’s to see if she could fix his hand. (State’s Ex.

59-A at 2, 4). In this same statement, petitioner told the authorities that they would be amazed what he did “mindwise” when he was drunk, as he can read and do math and he even defended himself successfully in traffic court once, although he does not remember things afterwards. (State’s Ex. 59-A at 17-8). All of this evidence contradicted Dr. Lowry’s testimony that most people at the level of intoxication petitioner was at midnight would have been comatose or asleep and that, in any event, between 12:00 a.m. and 3:30 a.m., petitioner would have been in a stupor, with impaired consciousness, general apathy, and an inability to stand or walk. (R. 29:1369). Indeed, Dr. Lowry acknowledged on crossexamination at trial that he was surprised petitioner located Reed’s house at midnight and that he asked Reed to clean and sew up his hand. (R. 30:1466, 1470). Accordingly, the evidence before this Court is that Reed’s recanted testimony regarding petitioner’s abilities shortly after the murders occurred is not material to the degree that, had defense counsel known that Reed was allegedly pressured into giving this testimony, there is a reasonable probability petitioner would have not been convicted. Petitioner’s third ground for relief is without merit, and it is recommended that it be denied. 2007 WL 582808, at *17 (emphasis added). In sum, Andrea Reed’s recantation cannot be used to satisfy article 64.03(a)(2)(A) for four independent reasons: (1) The federal district court’s factual finding that the recantation was “not truthful” is precluded from religiation in this Article 64 proceeding.

(2) Because this Court also rejected the truthfulness of

Andrea Reed’s recantation testimony in Skinner II, questions surrounding the truthfulness of Reed’s recantation are precluded from relitigation under the doctrine of stare decisis as well as collateral estoppel. See Skinner II, 293 S.W.3d at 204. (3) Even Skinner could find a way to surmount the doctrinal barriers of issue preclusion and stare decisis, he cannot establish by a preponderance of the evidence that a reasonable jury would credit Andrea Reed’s recantation when it is directly

contradicted by Jessica Reed’s statement that Skinner entered the trailer on his own, and when Gerry Douglas and Connie Neighbors testified that Andrea Reed told them a version of events that matches her trial testimony and contradicts her subsequent recantation efforts. (4) Even if a court or jury were to credit Andrea Reed’s recantation, Andrea Reed’s unrecanted trial testimony (which Skinner never attempts to refute in his brief) would prevent any reasonable jury from voting to acquit Skinner, even if one assumes the untested DNA will yield the most proSkinner result.

Reed never recanted her testimony that Skinner had told her

different stories about what had happened on the night of the murders.

Reed

testified that Skinner first told her that a Mexican had come to the house. (R. 26:495-96). Then (according to Reed) Skinner altered his story and told her that two Mexicans had come to the house, one at the front door and one at the back door. (R. 26:497-99). Reed testified that after giving this story, Skinner “kept telling me he would tell me the real story about what happened to his hand.” (R. 26:499). Reed claimed that Skinner told her that he caught Twila in bed with her exhusband, and that Skinner responded by hitting the ex-husband and kicking him out of the house. Skinner II, 293 S.W.3d at 198. Then Reed testified that Skinner told her that he thought he had killed Twila. (R. 26:501). In addition, Reed never recanted her testimony that Skinner told her that he wanted to stitch his hand, or that he told her not to call anyone. 2.

This Court has already found that Skinner “had the capacity to commit the murders,” and that factual determination is precluded from relitigation in these proceedings.

In Skinner II, this Court concluded that Skinner “had the capacity to commit the murders,” notwithstanding Skinner’s reliance on the same blood-spatter evidence, suggestions of a codeine allergy, and opinions of William Lowry that he presses in his current application. See Skinner II, 293 S.W.3d at 206. The doctrines of issue preclusion and stare decisis prevent Skinner from re-litigating that factual determination in this third Article 64 proceeding. The Court based this finding on the undisputed fact that Skinner walked three-and-a-half to four blocks from his home to Andrea Reed’s house immediately after the murders.

See Skinner II, 293 S.W.3d at 206.

Skinner’s lawyers

acknowledge that their client was able to make this four-block trek “within minutes after the murders occurred.” Skinner’s Br. at 6. But they have no answer for how to reconcile Skinner’s ambulatory skills and sense of direction with their efforts to paint him as “comatose” around the time of the murders. All they can offer are expressions of surprise and bewilderment about how their supposedly “stuporous” client “somehow managed to stagger” to Reed’s house immediately after the murders occurred. Skinner’s Br. at 6. That does nothing to overcome the barriers imposed by the doctrines of issue preclusion and stare decisis. And even if Skinner could avoid these doctrines, no reasonable jury could conclude that he lacked the capacity to commit the murders when he retained the coordination and strength to walk to Andrea Reed’s house within minutes of the murders. a.

Lowry’s opinion testimony is not credible, and Skinner offers nothing to change this Court’s previous decision to reject it.

This Court specifically rejected Lowry’s testimony because Lowry conceded that persons with a long history and alcohol and drug abuse would be more tolerant of these substances than the average individual, and also because Lowry conceded that Skinner might have taken codeine after the murders to ease the pain in his right hand. See Skinner II, 293 S.W.3d at 206. This Court also rejected Lowry’s opinion because Skinner had boasted to authorities that they “would be amazed” at what he could do “mind-wise” while drunk, such as reading and math, and defending himself (successfully) in traffic court. See id. Lowry also testified at the federal evidentiary hearing that Skinner should not have been able to walk to Andrea Reed’s house with such high amounts of alcohol and codeine in his system. See Skinner, 2007 WL 582808, at *23. No court (and no reasonable jury) can credit Lowry’s assessment of Skinner’s condition when his opinion cannot be reconciled with the undisputed facts of this case. See Skinner II, 293 S.W.3d at 206. Skinner does not deny that he abused alcohol and drugs for many years, nor does he deny the possibility that he took codeine after the murders.

Instead,

Skinner’s brief floats the idea that Skinner avoided using codeine out of a belief that he suffered from a codeine allergy, and therefore never could have developed the tolerance that would have enabled to him to commit the murders (and walk to Andrea Reed’s house minutes later) with the levels of codeine that were found in his system that night. See Skinner Br. at 16-18.

But Skinner never asserts that he

believed himself to be allergic to codeine, and never asserts that he avoided its use. His brief is filled with lawyerly statements carefully crafted to avoid those claims.

See Skinner Br. at 16 (“[E]vidence shows that Mr. Skinner once suffered from what he believed to be an allergic reaction to codeine.”) (emphasis added); id. (“[Y]ears of medical records confirm that Mr. Skinner thereafter consistently avoided being prescribed codeine by reporting to health care providers that he was allergic to it.”) (emphasis added). Skinner knows whether he avoided codeine or believed himself allergic to it, and he cannot satisfy article 64.03(a)(2)(A) when is unwilling even to assert that he avoided its use—or if his lawyers feel that they cannot make this factual claim consistent with their ethical obligations. In all events, even if Skinner made these assertions in his Article 64 application, they would not be credible. If Skinner believed that he suffered from a codeine allergy and avoided its use for that reason, then he needs to explain why he chose to consume such a high quantity of codeine on the night of the murders. Skinner also ignores the evidence that refuted his efforts to play the codeine-allergy card in the last round of Article 64 proceedings: (1) His ex-wife’s testimony that Skinner was not allergic to codeine, but did not like to use it because it wasn’t strong enough. See Skinner II, 293 S.W. 2d at 205. (2) The testimony of Skinner’s treating physician at the emergency room, Dr. Michael Chamales, who acknowledged that Skinner had self-reported a codeine allergy but explained that “in his experience, drug seekers will report false allergies so that doctors will be directed to prescribe more desirable medications.” Id. (3) The fact that Skinner had self-reported an allergy for Toradol yet nevertheless had a prescription for it filled in June of 1993. Id. (4) Dr. Chamales’s testimony that Skinner had been caught

stealing syringes from the hospital.

Id.

(5) The absence of any evidence that

Skinner suffered an allergic reaction to the codeine in his system on the night of the murders. Id. Skinner not only ignores this evidence, he offers nothing in the way of new evidence that could alter this court’s rejection of Lowry’s testimony or its factual finding that Skinner “had the capacity to commit the murders,” other than a me-too declaration from Harold Kalant. See Skinner Mot. Ex. 2 at Ex. 1; Skinner Br. at 1921 (noting that Kalant’s conclusions “essentially track” and “echo” Lowry’s). Skinner apparently believes that the doctrines of issue preclusion and stare decisis should allow Article 64 applicants to re-litigate any factual determination by a previous court—so long as they can trundle out another expert witness who agrees with their previous expert. This would allow every prisoner can continue to file Article 64 applications, no matter how many times his legal claims or factual assertions have been rejected in a previous Article 64 proceeding, simply by adding another expert-witness opinion into the mix.

This would effectively render the

doctrines of issue preclusion and stare decisis inapplicable to Article 64 proceedings. Yet even if this Court were to find that the existence of a new expert-witness opinion allows for de novo review of this Court’s previous factual determinations, the Kalant declaration adds nothing to Skinner’s defense. Kalant declares that Skinner’s body processed alcohol more quickly than the average person because Skinner was a heavy drinker; therefore his blood alcohol level on the night of the murders would have been higher than the numbers reported at trial.

This

observation is as harmful to Skinner as it is helpful.

As the Court has noted,

Skinner’s “long history of alcohol and drug abuse” indicates “that he would be more drug tolerant than the average individual.” Skinner II, 293 S.W.3d at 206. The remainder of Dr. Kalant’s declaration simply repeats what every juror already knows: that drunkenness would have made Skinner “not lucid” and unable to move about “in a coordinated manner.” Skinner Mot. Ex. 2 at Ex. 1. Similar observations were presented at trial and repeating them here adds nothing to Skinner’s efforts to satisfy article 64.03(a)(2)(A).

And Kalant’s declaration is

conspicuously silent on another well-know result of intoxication: domestic violence. b.

This Court has already found that Skinner “had the capacity to commit the murders” notwithstanding Skinner’s efforts to rely on the blood-spatter evidence in Skinner II.

When this court made its factual determination that Skinner “had the capacity to commit the murders,” it considered and explicitly rejected the bloodspatter evidence that Skinner advanced in his previous and current Article 64 applications. See Skinner II, 293 S.W.3d at 205-206. Skinner relied on the bloodspatter evidence to claim that Elwin was in the same room when Twila was murdered, and argued that he was too intoxicated to have overpowered both of them at once. This Court rejected those contentions and found that Skinner “had the capacity to commit the murders.”

This Court noted that Elwin had muscular

dystrophy, a disease that weakens muscles and hampers movement, so Elwin would have been an easy victim for Skinner.

Id.

The Court also noted the medical

examiner’s testimony that Twila would have been unconscious from strangulation

before she was beaten to death, so she could have been unconscious before Elwin entered the room. Id. This Court’s factual determination that Skinner “had the capacity to commit the murders” is precluded from re-litigation—regardless of whether Skinner offers new evidence or arguments to support his claims. Issue preclusion extends to any factual determination that was “actually litigated” and “necessarily decided” between the parties in the earlier proceeding. Murphy v. State, 239 S.W.3d 791, 795 (Tex. Crim. App. 2007). But when Skinner attacks this factual finding by offering the precise evidence and arguments that were rejected in the earlier Article 64 proceeding, he is exhibiting willful blindness to the doctrines of issue preclusion and stare decisis. Litigants cannot keep filing new lawsuits and re-litigating old issues until they finally get a result that they like. Skinner has had his day in court on the issue of whether he had the capacity to commit the murders, and this Court found in Skinner II that he did.

That decision cannot be disturbed, or even

reexamined, especially when Skinner simply regurgitates the same evidence and arguments that were rejected in the last go-around, adding only one new piece of evidence in the form of an unsworn declaration from Harold Kalant. If this is to be allowed, then there is nothing to stop Skinner from filing a fourth Article 64 application and demanding a de novo reevaluation of the evidence—if only he finds another expert witness to submit a declaration or affidavit on his behalf. 3.

This Court has already rejected Skinner’s efforts to rely on new mitochondrial DNA evidence.

Skinner claims that mitochondrial DNA testing of two hairs found in Twila’s hand undermines the Court’s 2003 decision. See Skinner Mot. Ex. 2 at 40–43. But the Court’s 2009 decision explains that this new mitochondrial DNA evidence “is simply too tenuous and speculative to warrant consideration,” Skinner II, 293 S.W.3d at 208, and “means nothing,” id. at 207. The fundamental defect with this evidence is that mitochondrial DNA is inherited entirely from the mother, so everyone in a given maternal line has exactly matching mitochondrial DNA. This means that Twila, her two murdered sons, and her maternal uncle Robert Donnell, all had matching mitochondrial DNA. This is why the Court concluded that the first hair, which matched the mitochondrial DNA of someone in Twila’s maternal line, “does not, by itself, convey any meaningful information about [Robert Donnell’s] potential involvement.” Id. at 207. The hair more likely belonged to one of Twila’s sons, or to Twila herself. The second hair found in Twila’s hand is even less helpful to Skinner. Skinner claims that the mitochondrial DNA testing of the second hair arguably excludes Twila, her sons, and Skinner. He argues that this evidence is “vitally important” because it suggests that the second hair “did not come from any of the four residents of the home” and so “the very real possibility arises” that the hair came from the real killer. Skinner Mot. Ex. 2 at 42–43. What Skinner’s motion does not say, however, is that the second hair could not have come from Robert Donnell either.

As we have explained, if the

mitochondrial DNA test excluded Twila and her sons, then it also excluded Robert

Donnell, Twila’s maternal uncle and the person Skinner claims is the real killer. This is exactly why the Court called the evidence of the second hair “too tenuous” to warrant consideration.

Skinner II, 293 S.W.3d at 208 (“Even if we accept Dr.

Shields’s opinion that the victims were excluded as contributors, that would also mean that Robert Donnell was excluded.”).

Skinner’s entire post-conviction

strategy centers on blaming Robert Donnell for the murders, so by excluding Robert Donnell, the second hair hurts rather than helps Skinner’s case. Moreover, the Court was not convinced that the second hair did not belong to Skinner himself. Id. (“Dr. Shields’s conclusion that [Skinner] was excluded was far more shaky.”). Skinner’s mitochondrial DNA evidence is simply too ambiguous to draw any “vitally important conclusion.” Skinner Mot. Ex. 2 at 42. Skinner has no answer to these objections. He has had two years to rebut the findings and arguments of the federal habeas court and this Court, yet his current motion for testing does not deign to acknowledge, let alone refute, the relevant portions of those decisions. And he refuses to acknowledge that his most “vital[]” piece of evidence, the mysterious second hair, actually excludes the person on whom he is trying to pin the murders. *** This Court explicitly found that Skinner “had the capacity to commit the murders,” and it remains bound by that finding under the doctrines of issue preclusion and stare decisis. Even if Skinner could somehow avoid those doctrines, he offers no new evidence that could change this Court’s factual determination on

this issue, other than the unsworn declaration from Harold Kalant. This Court therefore remains bound by its previous determinations that Skinner had the capacity to commit the murders, and that Andrea Reed’s attempted recantation was untruthful. When these binding factual findings are combined with the unimpeachable and compelling evidence of guilt that was presented at Skinner’s trial, such as Skinner’s bloody handprints on the walls of the house, Skinner’s admission that he was at home during the murders, Skinner’s failure to call the police or seek medical attention for the victims, Skinner’s ability to walk four blocks to Andrea Reed’s house within minutes of the murders, dressed in clothes soaked with the victims’ blood and wearing socks but no shoes, Skinner’s inability to tell a consistent story to Andrea Reed about what happened, Skinner’s decision to hide in a closet when the police arrived, Skinner’s response to the police when told he was being arrested on outstanding warrants unrelated to the murders (“Is that all?”), and Skinner’s admission to the authorities that he “might have killed Twila,” he cannot possibly establish by a preponderance of the evidence that he “would not have been convicted” of these crimes—even if one assumes that the untested DNA evidence could be linked to someone else.2 Nothing that DNA testing might reveal would lead a jury to acquit Skinner of involvement in these murders.

Skinner is wrong to assert that article 64.03(a)(2)(A) asks whether “at least one juror hearing the case would have harbored such doubt about Mr. Skinner’s guilt as to foreclose a guilty verdict.”). See Skinner Br. at 36 (emphasis added). Under the statute, Skinner must show that he “would not have been convicted” if exculpatory results were obtained. Changing the mind of “one juror” produces a hung jury, not an acquittal, and the next group of twelve jurors might convict at the retrial. What Skinner must show—by a preponderance of evidence—is that no group of twelve reasonable jurors

After Skinner’s conviction, the District Attorney tested more evidence, which further confirmed the jury’s verdict.

This Court has already reviewed the trial

evidence and the new evidence and concluded that Skinner is plainly guilty of triple murder. This Court’s 2003 review of the record in this case bolsters the conclusion that no further amount of testing would have made the jury unlikely to convict. See Skinner I, 122 S.W.3d at 813 (“[T]he appellant did not prove by a preponderance of the evidence that a reasonable probability existed that he would not have been prosecuted or convicted if the DNA test results were exculpatory.”). With all the evidence of Skinner’s guilt, it is impossible to conclude that Skinner may have avoided conviction based on evidence of stray DNA at the crime scene.

Even if the rape kit produced evidence of a stranger’s semen, State

prosecutors easily could have convinced a reasonable jury that this provides evidence of motive based on Skinner’s own statements to police.

Indeed, it is

impossible to believe that any reasonable juror would have believed that Ms. Busby was murdered by Robert Donnell or any other mystery attacker, when Skinner himself confessed to fighting with Ms. Busby, hitting her with the murder weapon, leaving her “passed out” in a pool of blood, and then immediately fleeing to his exgirlfriend’s house.3 Skinner’s theory of the case apparently rests on a hope that a

could possibly reach a unanimous verdict of guilt. This is quite different from the changing-themind-of-one-idiosyncratic-juror test that Skinner propounds in his brief.

This first statement to police was not admitted into evidence until Skinner’s federal evidentiary hearing, but the statements would be admissible in any retrial under the standards of Miranda v. Arizona, 384 U.S. 436 (1966), and Berghuis v. Thompkins, 130 S. Ct. 2250 (2010), and this Court must assume that prosecutors would introduce this statement into evidence to clarify the significance of the DNA test results. 3

jury might conclude that Skinner left Ms. Busby alive after bludgeoning her with a Maddock handle, and then Robert Donnell (or someone else) sneaked into the house and finished the job. Skinner’s gets no help from Routier v. State, 273 S.W.3d 241 (Tex. Crim. App. 2008), a case in which the evidence of guilt was much closer than the evidence here. It is always difficult to convince a jury that a mother stabbed to death her own children. See id. at 259 (“There is at least a 51% likelihood that the jury would have seen her as a victim herself.”). And Ms. Routier’s story of a masked intruder was made more believable by the serious wounds that she exhibited, including a “slash across her neck that came perilously close to severing her carotid artery.” Id. at 244. By contrast, the story of Twila Busby’s murder at the hand of a jealous and alcoholic boyfriend is tragically common. And the wound that Skinner suffered, a deep slice across his palm, commonly occurs when a murderer’s hand slides down the knife blade while stabbing the victim.

Skinner comes nowhere close to

satisfying the requirement of article 64.03(a)(2)(A). II.

ARTICLE 64.03(A)(2)(B) PRECLUDES SKINNER’S REQUEST FOR POSTCONVICTION DNA TESTING BECAUSE HIS REQUEST IS MADE TO UNREASONABLY DELAY THE EXECUTION OF HIS SENTENCE AND THE ADMINISTATION OF JUSTICE. Skinner’s brief devotes barely more than three pages to addressing Article

64.03(a)(2)(B), apparently believing that he can satisfy this provision simply by showing that he filed his third Article 64 application promptly after the legislature amended the statute in the summer of 2011. See Skinner Br. at 66-67.

The statute, however, does not ask whether the applicant unreasonably delayed the commencement of his lawsuit. The statute blocks any request that is made to “unreasonably delay the execution of sentence or administration of justice.” It is certainly true that death-row inmates who needlessly delay their Article 64 applications in the hoping of winning a last-minute stay of execution will flunk the article 64.03(a)(2)(B) standard. Cf. Franklin v. Lynaugh, 860 F.2d 165 (5th Cir. 1988). But these are far from the only applicants who will be precluded under article 64.03(a)(2)(B). Any prisoner who demands post-conviction DNA testing to unreasonably delay the execution of sentence or administration of justice must be barred from proceeding under the statute. There are two independent ways in which Skinner is using this Article 64 application to “unreasonably delay” the execution of his death sentence and the administration of justice. First, evidence that was not admitted at Skinner’s trial shows that he is actually guilty of the murders. Even if Skinner could somehow find a way to satisfy article 64.03(a)(2)(A), which focuses on whether Skinner would be convicted again based on the evidence admissible at trial, an Article 64 application brought by an actually guilty inmate is the very definition of an effort to “unreasonably delay” the administration of justice. Unlike article 64.03(a)(2)(A), which focuses on legal guilt or innocence, article 64.03(a)(2)(B) requires courts to apply an actual-guilt test when deciding whether an Article 64 applicant is seeking to unreasonably delay the administration of justice.

Second, Skinner is

unreasonably delaying the administration of justice because he could have tested

this DNA evidence at this trial and deliberately chose to forgo that opportunity for tactical reasons. Now he using his demands for post-conviction DNA testing as a weapon to postpone the imposition of his death sentence.

This Court cannot

tolerate a regime that lets capital-murder defendants who know they are guilty to deploy the type of sandbagging tactics that Skinner and his lawyers are using here. A.

Article 64.03(a)(2)(B) Requires Courts to Apply An Actual-Guilt Standard When Determining Whether Skinner Is Unreasonably Delaying The Administration of Justice.

Much of criminal law and procedure focuses on legal guilt and innocence—the question whether the evidence admissible at trial can support a finding of guilt beyond a reasonable doubt. See, e.g., Jackson v. Virginia, 443 U.S. 307 (1979). Post-conviction DNA testing is unique because it seeks to protect those who are actually innocent, though legally guilty, and it is not to be used as a weapon for actually guilty prisoners to carry out a grudge match against the State authorities. Article 64 seeks to screen out actually guilty inmates by requiring applicants to submit a sworn affidavit “containing statements of fact in support of the motion.” Article 64.01(a-1). But death-row inmates such as Skinner cannot be deterred by any marginal punishment that might be imposed for the crime of perjury, so this requirement is unlikely to be effective in stopping actually guilty death-row inmates from seeking post-conviction DNA testing. Skinner’s actual guilt is supported not only by the evidence that was introduced at his trial, see supra at PIN, but by the additional evidence that was admitted in his post-conviction proceedings. In a videotaped interview with the

police, Skinner admits to fighting with Twila in the living room and handling the murder weapon—specifically mentioning the words “mattock handle,” and admitting that “I think I hit [Twila] with it.” Skinner, 2007 WL 582808 *31–32, Resp. Ex. 35-A, at Tr. 8:6-8:17. Skinner told the police that he saw Twila “laying on the carpet” with “blood on her head.” Id. at Resp. Ex. 35-A, at Tr. 8:22-9:9. Skinner also admitted to the police that he fought with Scooter, and at no point in this interview (or in the other police interview that was admitted into evidence at trial) did Skinner mention that any mysterious intruder had entered the house. Skinner’s actual guilt is further confirmed by his pre-trial offer to plead guilty to first-degree murder in exchange for a life sentence. See Habeas Evid. Hr’g, Skinner, 2007 WL 582808 *31–32, Tr. at 135.

He did not offer to plead nolo

contendere; he offered to plead guilty, a process by which one confesses in open court to first-degree murder. Evidence of plea negotiations are typically excluded from admissible trial evidence at trial, and are irrelevant to the question of legal guilt. But this plea offer became public knowledge when Skinner accused his trial attorneys of ineffective assistance and waived the attorney-client privilege, and adds to the mountain of evidence of Skinner’s actual guilt. Finally, Skinner’s lawyers do not assert that their client is actually innocent in their papers that they have filed in this Court. They offer only carefully hedged observations about the evidence, statements that pertain only to legal innocence and not actual innocence.

See, e.g., Skinner Br. at 5 (“[A]n increasing body of

evidence suggests that Mr. Skinner was too incapacitated . . . to possess the

physical or mental agility needed to commit the murders.”).

Although Skinner

himself recently proclaimed his actual innocence in sworn affidavit, see Appendix, Skinner v. Switzer, 2:09-cv-00281, at 15 (N.D. Tex. July 14, 2011), his attorneys have not advocated that document in this court and do not appear to have played any role in preparing it.

It speaks volumes that Skinner’s own lawyers are

unwilling to stake their professional reputations and livelihoods on a proclamation of their client’s actual innocence. An actually guilty inmate who seeks post-conviction DNA testing is by definition engaging in an act that “unreasonably delay[s] the execution of sentence or administration of justice.” The evidence of Skinner’s actual guilt is even more overwhelming than the evidence of his legal guilt, and his actual guilt is not even contested by his attorneys in this Court. Skinner’s application for post-conviction DNA testing must therefore be dismissed under article 64.03(a)(2)(B). B.

Skinner is Unreasonably Delaying the Administration of Justice Because He Had the Opportunity to Test This DNA Evidence At His Trial and Deliberately Chose to Spurn It.

Skinner had the opportunity to test this DNA evidence during his trial, and deliberately chose to spurn it. Three courts have concluded that Skinner’s defense lawyers made a reasonable, tactical decision for forego testing because they feared that additional crime-scene evidence would further implicate Skinner rather than exonerate him. See Skinner, 2007 WL 582808 *31–32; Skinner, 528 F.3d at 341–42; Skinner II, 293 S.W.3d at 202. Each of those courts rejected Skinner’s contentions that his trial attorneys failed to satisfy the constitutional standards for effective

assistance of counsel, which means that the lawyers’ deliberate, intentional decision to pass up this opportunity for DNA testing is attributable to Skinner under the law of agency.

See Coleman v. Thompson, 501 U.S. 722, 753 (1991) (holding that

lawyers are agents, and that their actions are imputed to their clients regardless whether the principals “knowingly and willingly acquiesced.”); see also People v. Rathbun, 21 Wend. 509, 543 (N.Y. Sup. Ct. 1839) (“A prisoner . . . who defends by counsel, and silently acquiesces in what they agree to, is bound as any other principal by the act of his agent.”). The federal district court in Skinner’s habeas corpus proceedings made the most extensive findings regarding the strategic decisions of Skinner’s trial lawyers. See Skinner, 2007 WL 582808 at *31–32. The district court determined that Harold Comer (Skinner’s trial attorney) decided to pass on further DNA testing because he feared, based on the overwhelming evidence of Skinner’s guilt, that the testing would only further implicate Skinner and provide additional incriminating evidence for the prosecution. The items that had already been tested, such as the bloodstains on Skinner’s clothing, had damaged Skinner’s case and Comer did not want additional inculpatory evidence to be presented to the jury. Id. at *29. The district court found that Comer reasonably believed that he would be unable to keep the test results secret from the prosecutors, as the State had custody of the evidence, would know what items Skinner requested for testing, and would then decide to test those items for themselves. Id. at *31 & n.9. Comer also decided against further DNA testing because he wanted to attack the government at trial for its failure to

test all of the available DNA evidence, and use those omissions to plant seeds of doubt in the minds of jurors. Id. at *32. Skinner has not disputed any aspect of Comer’s testimony in his complaint or in his other filings with this Court, and even if he did, the state and federal courts’ rejection of Skinner’s ineffective-assistance claims would nevertheless bind this Court under the doctrine of issue preclusion (collateral estoppel). Skinner therefore cannot escape the conclusion that he is sandbagging, by seeking post-conviction DNA testing after deliberately bypassing the opportunity to test that evidence at his trial.

This is the paradigmatic example of a prisoner who is seeking to

“unreasonably delay the administration of justice.” Skinner’s lawyers will doubtless respond by pointing to the Texas legislature’s recent amendments to Article 64, which repealed a provision that withheld DNA testing from convicts who could have tested the evidence at the time of his trial and were at “fault” for failing to do so. See TEX. CODE CRIM. PROC. art. 64.01(b)(1)(B), repealed June 17, 2011.

But they would be gravely mistaken to

suggest that this statutory revision allows criminal defendants to lie behind the log and deliberately forgo testing DNA evidence at trial (or in their initial Article 64 proceeding). That would allow every capital defendant who knows he is guilty to deliberately forgo DNA testing at his trial (which can only confirm his guilt), and then use his post-conviction efforts to obtain DNA testing as a litigation weapon or propaganda tool to delay the imposition of his death sentence. Indeed, under this regime, any criminal defense lawyer worth his salt will decide to forgo DNA testing

at trial whenever he knows his client is guilty or deems his client likely to be convicted. Worse, death-row inmates who seek DNA testing under Article 64 will be allowed to do so in piecemeal fashion, by asking the Article 64 court to test only a small subset of the relevant evidence, and then initiating a new Article 64 proceeding as soon as a new execution date is set. This Court cannot construe article 64 in a manner that will create such perverse incentives for guilty criminal defendants and their lawyers. Nor can this Court reward criminal defendants who deliberately sleep on their rights and pass up the opportunity to test DNA evidence at their trial or in an earlier Article 64 proceeding. Anyone who engages in this type of gamesmanship is “unreasonably delaying the administration of justice.” The recent amendments to Article 64 still expand access to DNA testing. Under the previous version of Article 64, a convict could be blocked from seeking post-conviction DNA testing if his “fault” in failing to test the evidence earlier stemmed from mere negligence (either by the convict or his attorneys).

But a

criminal defendant whose “fault” reflects an intentional, strategic decision cannot be allowed to proceed under article 64.03(a); any other result would turn Article 64 into an invitation to sandbag.

Skinner cannot possibly maintain that the 2011

amendments have made fault irrelevant to the Article 64 inquiry, or that criminal defendants can deliberately bypass opportunities to test DNA evidence as part of a strategy to win an acquittal, and then, when that strategy fails, take a second bite at the apple and test in Article 64 proceedings the very evidence that they deliberately declined to test during their trials (or in an earlier Article 64

proceeding). See Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 129 S. Ct. 2308, 2329 (Alito, J., concurring) (noting that this type of regime “would allow defendants to play games with the criminal justice system.”).

And this Court

cannot construe Article 64 to produce such untoward results absent a clear statement of legislative intent. TEX. GOVT. CODE ANN. § 311.023(1), (5). III.

ALLOWING UNWARRANTED ACCESS TO DNA TESTING THREATENS TO INVADE THE PRIVACY OF VICTIMS AND IMPOSE PROHIBITIVE COSTS ON LOCAL PROSECUTORIAL BUDGETS. Skinner and his propagandists often assert that there is “no harm” in

allowing convicts such as Skinner access to post-conviction DNA evidence. They attempt to characterize post-conviction DNA testing as a win-win proposition: An innocence-proving test corrects a grave injustice and leads to the release of an innocent man, while a guilt-confirming test buttresses public confidence in the conviction as well as the criminal-justice system. They act as though they cannot understand why overwhelming evidence of guilt should foreclose access to postconviction DNA testing—especially when Skinner and his supporters have graciously offered to cover the laboratory costs of the testing.

See, e.g., CNN

Interview with Hank Skinner, High court asked to give death row inmate chance to prove innocence, Oct. 11, 2010. (“[A]ll the District Attorney’s gotta do is turn over the evidence, test it and let the chips fall where they may. If I’m innocent, I go home, if I’m guilty I die.”); H. Lee Sarokin, Is the Supreme Court Going Soft on Crime?, HUFFINGTON POST (Mar. 9, 2011) (“Mr. Skinner, convicted of a triple murder, sought DNA testing . . . . No harm could possibly come from the results.”).

Yet post-conviction DNA testing is far from Pareto-optimal. A regime that allows easy access to post-conviction DNA testing imposes steep costs on victims and local prosecutorial budgets, and Skinner’s crusade to seek DNA testing powerfully illustrates the need to limit post-conviction testing to those who have acted in good faith and make a credible showing of possible innocence. Article 64 cannot be construed to give inmates such as Skinner the benefit of the doubt, but should be strictly construed to limit post-conviction DNA testing to the circumstances delineated in the statute. A.

Post-conviction DNA testing invades the privacy of victims.

DNA testing will often reveal deeply personal information about crime victims—including private medical information and past sexual partners. Semen samples on clothing or mattresses can remain testable for years.

See HOWARD

COLEMAN & ERIC SWENSON, DNA IN THE COURTROOM 27 (Dwight Holloway & Teresa Aulinskas eds., 1994); OFFICE COUNSEL’S REPORT

OF THE

CONGRESS

INDEPENDENT COUNSEL, THE INDEPENDENT

ON THE

INVESTIGATION

PRESIDENT CLINTON 7

(1998) (reporting DNA results obtained from a semen-stained dress that was tested seventeen months after the incident took place).

Allowing undeniably guilty

inmates such as Skinner to freely test DNA evidence post-conviction will serve only to expose their victims’ medical and sexual histories to public view. Skinner’s motion for testing threatens the privacy and dignity of Twila Busby and her surviving family. Skinner is seeking DNA testing of a rape kit, containing evidence collected from Ms. Busby’s body on the night of the murders. Skinner and

his lawyers surely know that the rape kit will reveal the DNA of an unidentified male, given that Skinner told the police that he caught Ms. Busby in bed with another man on the night of the murders. Having outlived his victim by 19 years, Skinner (and his lawyers) now seek to publicize her sexual indiscretion in the Texas Tribune and New York Times. Had they sought this evidence at trial, it would have hurt Skinner’s case by confirming his motive for the crime.

But Skinner has

nothing to lose in this post-conviction setting, where the results will serve only as useful propaganda to bring political pressure on the district attorney who is prosecuting this case, and inflame lawmakers and journalist who are unfamiliar with the record. The Court should not accommodate Skinner’s efforts to further tarnish Twila Busby’s memory for his self-serving ends. B.

Post-conviction testing places unreasonable pressure on State prosecutors to test every piece of evidence in their possession.

It is prohibitively costly to test every shred of DNA evidence at a crime scene. Even fleeting physical contact can leave behind “touch DNA” that might be probative.

J.M BUTLER, MAAFS DNA WORKSHOP, INTRODUCTION

LCN DNA

TESTING ISSUES (May 3, 2006), at www.csti.nist.gov/biotech/strbase/training.htm. In a triple homicide, with blood and hair in every room, the amount of relevant items that could be subject testing can be overwhelming. This challenge is compounded by cost concerns. As the past chairman of the United States DNA Advisory Board recently explained, “[i]f you have a room covered in blood, you have to work with crime scene investigators. . . . You can’t test a hundred samples; maybe you can test 3 or 4.” Testimony of Arthur Eisenberg,

University of North Texas Health Science Center, Texas House Committee on Criminal Jurisprudence, at 1:52 (Nov. 22, 2011). Professor Eisenberg testified that crime labs nationwide are constrained by limited state and federal funding, so when a prosecutor or defense attorney sends his lab too many samples, they work with the attorneys to select the “five or six most probative.” Id. at 1:48-1:50. As a result of these scarcity constraints, courts and juries must rely, as with all evidentiary decisions, on the sound judgment of the prosecutor and defense attorney to decide what is most relevant to their case. But easy access to postconviction distorts the defendant’s incentives at trial. If the defendant knows he is guilty, then he has every incentive to follow Skinner’s example by refusing to test any additional evidence at trial, and then demanding multiple rounds of testing after his client is sentenced to death. The only way that a prosecutor could thwart this tactic is to test every scrap of DNA evidence prior to the trial.

But no

prosecutor can test all of this evidence without diverting his office’s scarce resources away from other important prosecutions. And that is exactly how Skinner and his lawyers would have it:

A world in which capital prosecutions become almost

impossible to carry out, because prosecutors will either have to undertake the expense of testing every piece of arguably relevant DNA evidence at the trial, or else allowing guilty criminal defendants to lie behind the log and delay their executions by making endless post-conviction demands for DNA testing. *****

Skinner (understandably) does not want to be executed. And it is certainly rational for death-row inmates in Skinner’s position to carry out the rear-guard action that he has been waging for the past 14 years. But Skinner’s transparently false claims of innocence do a grave disservice to the truly innocent prisoners who sit behind bars, who are less likely to be believed when inmates such as Skinner demand post-conviction DNA testing as a means of subverting capital punishment and delaying their eventual execution date. The State of Texas would never oppose the efforts of a wrongfully convicted inmate to clear his name and vindicate his innocence in court. But the State and the courts must vigorously resist the efforts of those (like Skinner) who make false claims of innocence, so that scarce judicial resources can be focused on the Article 64 applicants who make credible claims of possible innocence. The time has come for Skinner to accept responsibility for his actions and “submit to the punishment that the people of [Texas] deem him to deserve.” Foster v. Florida, 537 U.S. 990, 990 (2002) (Thomas, J., concurring).

CONCLUSION We respectfully ask this Court to affirm the trial court’s denial of Skinner’s third motion for DNA testing.

Respectfully submitted. GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General DAVID C. MATTAX Director of Defense Litigation /s/ Jonathan F. Mitchell JONATHAN F. MITCHELL Solicitor General State Bar No. 24075463 jonathan.mitchell@oag.state.tx.us ARTHUR C. Dâ&#x20AC;&#x2122;ANDREA Assistant Solicitor General State Bar No. 24050471 arthur.dandrea@oag.state.tx.us

OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1695 Fax: (512) 474-2697 COUNSEL FOR DEFENDANT