April 13, 2012 - DNA ISSUE

DNA ISSUE

APPELLANT’S REPLY BRIEF APRIL 13, 2012

TABLE OF CONTENTS INTRODUCTION AND SUMMARY OF ARGUMENT..................................... 1 ARGUMENT ........................................................................................................ 1 I.

Mr. Skinner Has Shown That He Satisfies the Requirements of Art. 64.03(a)(2)(A). ..................................................................................... 1 A.

As a Preliminary Matter, the Doctrines of Collateral Estoppel and Stare Decisis Are Inapplicable Here........................ 1

B.

Appellee's Heavy Reliance on This Court's Discussion of the Evidence in Skinner II Shows that It Misunderstands the Standard the Court Must Apply When Evaluating the Evidence Under Art. 64.03(a)(2)(A). ............................................... 5

C.

There Is at Least a 51% Probability that a Jury Would Harbor Reasonable Doubt About Mr. Skinner's Guilt If Presented with All the Reliable Evidence Plus Exculpatory DNA Testing Results. .................................................................... 11

D.

The Alleged "Confessions" on Which Appellee So Heavily Relies Do Not Change the Analysis. ............................................. 25

II.

Article 64.03(a)(2)(B) Does Not Preclude Mr. Skinner's Request for DNA Testing. ...................................................................................... 39

III.

Public Policy Favors Granting DNA Testing in This Case. .................. 45

CONCLUSION................................................................................................... 49

i

TABLE OF AUTHORITIES Page

Cases Federal Cases

Anderson v. City of Bessemer City, N.C.,

470 U.S. 564 (1985)....................................................................................... 10

Beecher v. Alabama,

389 U.S. 35 (1967)......................................................................................... 37

Bordenkircher v. Hayes,

434 U.S. 357 (1978)....................................................................................... 45

Brown v. Illinois,

422 U.S. 590 (1975)....................................................................................... 37

Carella v. California,

491 U.S. 263 (1989)....................................................................................... 12

Dist. Att'y's Office v. Osborne,

557 U.S. 52, 129 S. Ct. 2308 (2009) ............................................................. 41

Evitts v. Lucey,

469 U.S. 387 (1985)....................................................................................... 41

Lytle v. Household Mfg., Inc.,

494 U.S. 545 (1990)....................................................................................... 11

Mincey v. Arizona,

437 U.S. 385 (1978)................................................................................. 37, 38

One Lot Emerald Cut Stones & One Ring v. United States,

409 U.S. 232 (1972)......................................................................................... 5

Skinner v. Switzer,

131 S. Ct. 1289 (2011)................................................................................... 41

ii

United States v. Chrismon,

965 F.2d 1465 (7th Cir. 1992)....................................................................... 38

Withrow v. Williams,

507 U.S. 680 (1993)....................................................................................... 41 State Cases

Ayre v. J.D. Bucky Allshouse, P.C.,

942 S.W.2d 24 (Tex. App. – Houston [14th Dist.] 1996) ............................... 5

Bawcom v. State,

78 S.W.3d 360 (Tex. Crim. App. 2002)........................................................... 6

Brooks v. State,

323 S.W.3d 893 (Tex. Crim. App. 2010)....................................................... 11

Disheroon v. State,

687 S.W.2d 332 (Tex. Crim. App. 1985)......................................................... 3

Gonzalez v. State,

301 S.W.3d 393 (Tex. App. – El Paso 2009)................................................... 4

Ex parte Gutierrez,

337 S.W.3d 883 (Tex. Crim. App. 2011)..................................... 33, 39, 40, 41

Mayes v. Stewart,

11 S.W.3d 440 (Tex. App. – Houston [14th Dist.] 2000, pet. denied)........... 4

Montez v. State,

824 S.W.2d 308 (Tex. App. – San Antonio, 1992)........................................ 12

In re Morton,

326 S.W.3d 634 (Tex. App. – Austin 2010, no pet.)..................................... 42

Routier v. State,

273 S.W.3d 241 (Tex. Crim. App. 2008)............................................. 9, 12, 25

Skinner v. State,

293 S.W.3d 196 (Tex. Crim. App. 2009)............................................... 4, 9, 47 iii

Skinner v. State,

122 S.W.3d 808 (Tex. Crim. App. 2003)....................................................... 22

Smith v. State,

165 S.W.3d 361 (Tex. Crim. App. 2005)................................................... 9, 43

State v. Colyandro,

233 S.W.3d 870 (Tex. Crim. App. 2007)......................................................... 7

SWEPI, L.P. v. Camden Resources, Inc.,

139 S.W.3d 332 (Tex. App. – San Antonio 2004)........................................... 5

Sysco Food Servs., Inc. v. Trapnell,

890 S.W.2d 796 (Tex. 1994) ........................................................................ 4, 6

Ex parte Tomlinson,

295 S.W.3d 412 (Tex. App. – Corpus Christi 2009, no pet.) ....................... 45

Ex parte Tuley,

109 S.W.3d 388 (Tex. Crim. App. 2002)....................................................... 45

Watson v. State,

204 S.W.3d 404 (Tex. Crim. App. 2006).................................................. 11-12 Statutes

48 Tex. Jur. 3d Judgments § 515 ........................................................................ 5 Ark. Code Ann. § 16-112-208(e)(3) (2006) ........................................................ 13 Certain Pretrial and Post-Trial Procedures and Testing in a Criminal Case, 82d Leg., 2011 Reg. Sess., ch. 14 § 5, 2011 Tex. Sess. Law Serv. Ch. 278 (H.B. 1573) (Vernon) ............................................................. 47 Tex. Code Crim. Proc. Ann. art. 64.01 ....................................................... passim Tex. Code Crim. Proc. Ann. art. 64.03 ....................................................... passim

iv

Additional Sources Mark Blagrove, Effects of Length of Sleep Deprivation on Interrogative Suggestibility, 2 J. Experimental Psychol.: Applied (1996) ....................... 28 House Journal, Eight-Second Legislature, Regular Session, Proceedings, May 20, 2011, at 4364, available at http://www.journals.house.state.tx.us/hjrnl/82r/pdf/82RDAY81FINAL.P DF#page=2 .................................................................................................... 51 Saul M. Kassin,

A Critical Appraisal of Modern Police Interrogations, in Investigative Interviewing: Rights, Research, Regulation (T.

Williamson, ed. 2006) ................................................................................... 32

Know the Cases: Eugene Henton, Innocence Project,

http://www.innocenceproject.org/Content/Eugene_Henton.php (last visited Apr. 12, 2012).................................................................................... 35

Know the Cases: Christopher Ochoa, Innocence Project,

http://www.innocenceproject.org/Content/Christopher_Ochoa.php (last visited Apr. 12, 2012) .......................................................................... 33

Know the Cases: Search the Profiles, Innocence Project,

http://www.innocenceproject.org/know/SearchProfiles.php?check=check&title=&yearConviction=&yearExoneratio n=&jurisdiction=&cause=False+Confessions+%2F+Admissions&per petrator=&compensation=&conviction=&x=28&y=5 (last visited Apr. 12, 2012) ................................................................................................ 33

Richard A. Leo, "False Confessions: Causes, Consequences and Implications," 37 J. Am. Acad. Psychiatry Law 332 (2009)........................ 31 Bill Mears, High Court Asked to Give Death Row Inmate Chance to Prove Innocence, CNN.com (Oct. 8, 2010), http://articles.cnn.com/2010-1008/justice/us.scotus.texas.death.penalty_1_twila-busby-dna-testsdeath- row?_s=PM:CRIME...................................................................... 48-49 Order, Skinner v. State, AP-76,675 (Tex. Crim. App. Nov. 7, 2011) ................ 6

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Petitioner's Motion in Limine, Skinner v. Quarterman, No. 2:99-CV-0045, 2007 WL 582808 (N.D. Tex. Feb. 22, 2007) ....................................................................................... 17 Rob Warden & Steven A. Drizin, eds., True Stories of False Confessions (2009) ....................................................................................................... 32, 36 Senate Journal, Eighty-Second Legislature—Regular Session. Austin, Texas Proceedings, Apr. 6, 2011, at 955, available at http://www.journals.senate.state.tx.us/sjrnl/82r/pdf/82RSJ04-06F.PDF#page=13 ............................................................................................ 50 Statement of Facts, [Pretrial] Writ of Habeas Corpus, Vol. I, Skinner v. Quarterman, No. 2:99-CV-0045, 2007 WL 582808 (N.D. Tex. 2007) ...................................................................................................... 39 Texas Legislature Online, History, Bill SB 122, Legislative Session 82(R), http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=82R&Bill=S B122 (last visited Apr. 11, 2012) ................................................................................ 50 Transcript of Hearing on Pretrial Motions (September 19, 1994) at 116, State v. Skinner, No. 5216 (31st Jud. Dist., Gray Cnty., Tex. 1994) ........ 39

vi

Appellant Henry Watkins Skinner ("Mr. Skinner") respectfully replies to the Appellee's Brief on the Merits filed on March 5, 2012 ("Appellee's Br.").

INTRODUCTION AND SUMMARY OF ARGUMENT On November 6, 2011, this Court stayed Mr. Skinner's execution to give itself sufficient time to consider the impact of two amendments to Chapter 64 ("Chap. 64") that relaxed the legal standards under which Mr. Skinner's previous Chap. 64 motions had been denied. Appellee takes the remarkable position that although the stricter standards have been removed from the provisions the Legislature amended, the Court should read them into language elsewhere in the statute. For example, Appellee maintains that this Court should continue to require that a prisoner seeking DNA testing show

that

exonerating

test

results

would

prove

him

innocent,

notwithstanding the Legislature's having amended the statute in 2003 specifically to clarify that proof of innocence is not required.

Similarly,

Appellee contends that any prisoner who fails to ask for DNA testing prior to trial should be categorically barred from obtaining relief under Chap. 64, despite the Legislature's having amended the statute less than one year ago specifically to eliminate any such bar. Appellee urges the Court to thumb its judicial nose at the Legislature by reading these restrictions into language barring motions that "unreasonably delay[]" execution of sentence.

Appellee's Br. at 32 (quoting art. 64.03(A)(2)(B)).)

1

(See

Having set an improperly high "actual innocence" standard for Mr. Skinner to meet, Appellee then relies almost exclusively on a statement Mr. Skinner gave in response to police interrogation just hours after the murders, when he was still under the influence of the massive amounts of alcohol and drugs he had consumed only 12 hours earlier. which

that

statement

was

given

render

The circumstances under it

completely

unreliable.

Furthermore, it was obtained in violation of Mr. Skinner's constitutional rights, so obviously so that the prosecutor made no effort to offer it at trial; as he later acknowledged, he "knew darn well it wasn't admissible" because "it was so blatantly violative of the defendant's rights." (EH I:88.)

Thus, Appellee demands that this Court reinstate legal standards that the Legislature has expressly repudiated, and then—in an effort to show that Mr. Skinner cannot meet those standards—relies heavily on an alleged confession that is patently unreliable and never was, and never can be, heard by a jury. These efforts fall far short of rebutting Mr. Skinner's compelling case for relief under Chap. 64, and the trial court's decision denying that relief should be reversed.

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ARGUMENT I.

Mr. Skinner Has Shown That He Satisfies the Requirements of Art. 64.03(a)(2)(A).

A.

As a Preliminary Matter, the Doctrines of Collateral Estoppel and Stare Decisis Are Inapplicable Here.

1.

The State Has Waived Any Collateral Estoppel Defense.

Throughout its brief, Appellee invokes the doctrine of collateral estoppel, asserting that Mr. Skinner's motion for DNA testing seeks to relitigate factual disputes that have already been decided by this Court and the federal habeas court.

Not only is Appellee wholly incorrect in the

assertion that the issues presented here have been decided in prior litigation, as discussed below, but Appellee has also waived the ability even to raise collateral estoppel in this Court.

After Mr. Skinner filed his Third Motion for DNA testing, the State filed two responses: an original opposition, and a revised opposition a day later. (SR 1:93-110; SR 2:1-16.) In neither pleading did the State assert, or even imply, that collateral estoppel precludes Mr. Skinner's reliance on evidence previously discussed in prior litigation. Having failed to raise that objection in the district court, Appellee is foreclosed from raising it here. See,

e.g., Disheroon v. State, 687 S.W.2d 332, 335 (Tex. Crim. App. 1985) (finding "[n]othing . . . presented for review" where "[n]o objection . . . based on the doctrine of collateral estoppel was made" at trial); Sysco Food Servs., Inc. v.

1

Trapnell, 890 S.W.2d 796, 805 (Tex. 1994) (same); Gonzalez v. State, 301 S.W.3d 393, 400 (Tex. App. – El Paso 2009) (same); Mayes v. Stewart, 11 S.W.3d 440, 450 (Tex. App. – Houston [14th Dist.] 2000, pet. denied) (same).

2.

In Any Event, Collateral Estoppel Would Not Preclude Mr. Skinner from Relying upon Evidence Previously Addressed by this Court or the Federal District Court.

Even if the State had not waived collateral estoppel, that doctrine would not apply here. Collateral estoppel precludes relitigation of a factual or legal issue only where the party seeking to invoke the doctrine shows, among other things, that the issue decided in the prior action is identical to the issue in the pending action. See Sysco Food Servs., Inc., 890 S.W.2d at 803; 48 Tex. Jur. 3d Judgments § 515.

No issue presented to this Court in the present litigation is identical to any issue previously litigated between Mr. Skinner and the State of Texas.

To be sure, some of the same evidence was analyzed at length in prior litigation: For example, the credibility of Andrea Reed's recantation testimony was addressed by the federal habeas court and by this Court in

Skinner v. State, 293 S.W.3d 196 (Tex. Crim. App. 2009) ("Skinner II").

Similarly, both the federal habeas court and this Court have had occasion to consider the evidence Mr. Skinner has presented here regarding his incapacity to commit the murders. The crucial distinction between all of that prior litigation and this case, however, is that none of that evidence has ever 2

been considered, by any court, applying the standard set forth in the current version of art. 64.03(a)(2)(A), the provision by which that evidence must now be evaluated—as this Court recognized in staying Mr. Skinner's execution in November. (See Sections I.B. and I.C., infra.) That alone is enough to defeat Appellee's belated collateral estoppel defense.

See Ayre v. J.D. Bucky

Allshouse, P.C., 942 S.W.2d 24, 28 (Tex. App. – Houston [14th Dist.] 1996) ("Collateral estoppel requires that the issue decided in the first action be identical to the issue in the pending action." (citing Getty Oil Co. v. Ins. Co. of

N. Am., 845 S.W.2d 794, 802 (Tex. 1992))).1 Furthermore, even in a case where all the elements of collateral estoppel are present, a court need not apply the doctrine where it deems the purposes underlying issue preclusion will not be served. The "[a]pplication of collateral estoppel also involves considerations of fairness not encompassed in the 'full and fair opportunity' inquiry." Sysco Food Servs., Inc., 890 S.W.2d at Moreover, relitigation of an issue is not barred when the party against whom preclusion is sought had a significantly heavier burden in the initial action than in the subsequent action. See, e.g., One Lot Emerald Cut Stones & One Ring v. United States, 409 U.S. 232, 234-35 (1972); SWEPI, L.P. v. Camden Resources, Inc., 139 S.W.3d 332, 340 n.10 (Tex. App. – San Antonio 2004). There is a distinct difference between the burden of proof in a federal habeas corpus proceeding and in a proceeding under the current version of Chap. 64. This Court is not sitting as the final arbiter of whether particular testimony is true or false. Thus, for example, Mr. Skinner's burden is not to convince the Court that Andrea Reed's recantation testimony is truthful; instead, he need only show that when that testimony is considered along with presumed exonerating DNA test results, a rational jury would likely consider it as an additional basis for harboring reasonable doubt as to Mr. Skinner's guilt.

1

3

804 (finding that collateral estoppel would not preclude litigation of claims because of the procedural uniqueness of the pending case, including the change in circumstances created by the recent amendment of a previously applicable statute).

This Court has already noted the unique procedural

nature of this case and the need to address fully the issues now before it. See Order, Skinner v. State, AP-76,675 at 1-2 (Tex. Crim. App. Nov. 7, 2011) (granting stay of execution because changes to Chapter 64 "have never been reviewed in the particular context of this case" and finding it would be "prudent for this Court to take the time to fully review the changes in the statute as they pertain to this case"). Accordingly, even if collateral estoppel were somehow applicable here, using the doctrine to foreclose full review would contravene fairness and justice.

3.

The Doctrine of Stare Decisis Likewise Is Not Implicated Here.

Though Appellee baldly invokes the doctrine of stare decisis throughout its brief, it makes no attempt to explain why that doctrine applies here.

Stare decisis is designed to foster reliance on judicial decisions and contribute to the integrity of the judicial process.

Bawcom v. State, 78

S.W.3d 360, 363 (Tex. Crim. App. 2002). It applies with greatest force in statutory construction cases because, if a court misconstrues a statute, the mistake presumably will be rectified by the legislature. See, e.g., State v.

4

Colyandro, 233 S.W.3d 870, 885 (Tex. Crim. App. 2007) (Keller, P.J., concurring).

Absent such legislative action, the reasoning goes, a court

should adhere to its prior precedent. Id. In this case, Appellee argues that the doctrine should be applied not just until the Legislature amends a statute, as it did here twice, but even

afterward to deny effect to the legislative action. But stare decisis obviously does not command this Court to stubbornly cling to prior precedent even after it has been overturned by the Legislature.

The doctrine simply is not

implicated here.

B.

Appellee's Heavy Reliance on This Court's Discussion of the Evidence in Skinner II Shows that It Misunderstands the Standard the Court Must Apply When Evaluating the Evidence Under Art. 64.03(a)(2)(A).

Even when Appellee's mistaken reliance on collateral estoppel and stare decisis is put to one side, Appellee still insists that this Court's treatment of the evidence in Skinner II is dispositive of the inquiry this Court must undertake in applying art. 64.03(a)(2)(A).

Appellee asserts, for

example, that in its 2009 decision in Skinner II, this Court "resolve[d]" as "a discrete issue of fact" that Andrea Reed's recantation testimony was untruthful, foreclosing Mr. Skinner from relying on it to satisfy Chap. 64's conditions for obtaining post-conviction DNA testing. (Appellee's Br. at 1011; see also id. at 11 (asserting that "this Court ha[s] determined that Andrea 5

Reed's recantation testimony was 'not truthful'").) In the ensuing pages of Appellee's brief, what Appellee shows is only that the federal magistrate judge who heard Ms. Reed's testimony elected not to credit it. (See id. at 1112, 13, 14, 15 (emphasizing Appellee's reliance on the incorrect standard through use of phrases such as "the [federal] district court specifically found," "the federal habeas court's adverse findings," and "the federal habeas court

did specifically consider").)

From that premise, Appellee leaps to the

conclusion that Mr. Skinner may not rely on Ms. Reed's testimony as any part of his showing to satisfy art. 64.03(a)(2)(A). Appellee makes the same sweeping assertion with respect to the other evidence that raises doubts about whether Mr. Skinner is guilty. (See, e.g., id. at 17-22.) For at least two reasons, Appellee's analysis of this Court's 2009 opinion, the federal court decision on which this Court relied, and their relevance to the present appeal is mistaken.

1.

Appellee's Argument Ignores the Context of This Court's Observations About the Trial Evidence in Its 2009 Opinion.

The context in which this Court analyzed the trial evidence in its 2009 opinion is essential to understanding why those findings are not relevant to the present appeal. In the relevant portion of Skinner II, this Court was weighing whether there was any basis for excusing, in the "interests of justice," the decision by Mr. Skinner's trial counsel not to pursue DNA testing 6

prior to trial.

Skinner II, 293 S.W.3d at 197. That inquiry flowed from

former art. 64.01(b)(1)(B), the "fault" provision the Legislature has since stripped from the statute. See id. at 209 (noting that the Court's focus in discussing post-trial evidence was on whether that evidence could "require us to retrospectively second-guess a trial strategy that was reasonable at the time"). (See also, e.g., Appellant's Opening Brief ("Appellant's Br.") at 59-64.)

Simply put, the Court in 2009 was answering a different question.

Today, the issue facing the Court requires it to look at the available evidence from all sides.

Its task is not to determine whether the evidence so

overwhelmingly suggests the defendant's innocence that the Court should carve out an exception to the now-defunct "no-fault-of-the-convicted-person" requirement, but instead to predict what conclusion a reasonable jury would likely reach in a retrial where the overall evidentiary picture is supplemented

not only with the post-trial evidence but also with exculpatory DNA results on every piece of evidence that Mr. Skinner seeks to have tested. That is the inquiry mandated by the amended version of art. 64.03(a)(2)(A), as the Legislature meant it and this Court has interpreted and applied it. See, e.g.,

Smith v. State, 165 S.W.3d 361, 363-64 (Tex. Crim. App. 2005); Routier v.

State, 273 S.W.3d 241, 257 (Tex. Crim. App. 2008). Appellee's insistence that the Court has, in effect, already ruled against Mr. Skinner on this question is its first analytical error.

7

2.

The Federal Habeas Court's Findings in No Way Foreclose the Likelihood that a Reasonable Jury Would Reach Different Conclusions.

Appellee assumes that the federal habeas court's adoption of one particular view of contested evidence—e.g., its choice not to credit Andrea Reed's recantation of her trial testimony—rules out the possibility that a reasonable jury would reach different conclusions about whom or what to believe. That assumption is mistaken.

The federal habeas court was required to choose between competing contentions supported by evidence on both sides.

Where it perceived

conflicts, it was entitled, as the ultimate trier of fact in habeas, to resolve them; where it found particular circumstances weightier than others, it was entitled to attach dispositive significance to them. All those actions were legitimate, and inhere in—indeed, define—the role of fact-finder.2 But saying that a court was entitled to draw the conclusions that it did—that its findings are supported by the record, cf. Anderson v. City of

Bessemer City, N.C., 470 U.S. 564, 577 (1985)—is far from saying that no rational fact-finder could have reached a different conclusion. Two different rational fact-finders viewing the same evidentiary record could draw Theoretically, a reviewing court could declare that the evidence so conclusively supports a single interpretation of events that any contrary finding would be positively irrational. The present appeal does not implicate this hypothetical, however, because the federal district court—understandably, on this record— nowhere suggested that its view of the evidence was the only rational one.

2

8

diametrically opposed conclusions, and neither finding would be "clearly erroneous" if both interpretations "ha[d] support in inferences . . . drawn from the facts in the record." Id. As the Supreme Court has emphasized, "we have long recognized [that] a jury and a judge can draw different conclusions from the same evidence." Lytle v. Household Mfg., Inc., 494 U.S. 545, 555 (1990) (citing Railroad Co. v. Stout, 17 Wall. 657, 664, 21 L. Ed. 745 (1874)). This is particularly so where the fact-finding body is a criminal trial jury duty-bound to apply the presumption of innocence—a presumption that works to resolve all reasonable doubts in favor of the defendant at trial, but is not present at a habeas corpus proceeding. It is also particularly so where the jury would be viewing that evidence in the context of a trial in which it also heard evidence of exonerating DNA testing results.

Thus, the fact that the federal district court on habeas review chose to resolve these disputes against Mr. Skinner is irrelevant to the question that confronts the Court in resolving this appeal.

To honor the extraordinary

importance Texas has historically attached to the jury's role,3 the Court must

Texas is "the most jury-deferential state in the nation." Brooks v. State, 323 S.W.3d 893, 923 (Tex. Crim. App. 2010) (Cochran, J., concurring). The Framers of the 1876 Texas Constitution "had great faith in juries—their fellow citizens," and that confidence has been a cornerstone of Texas jurisprudence ever since. Watson v.

State, 204 S.W.3d 404, 429 & n.47 (Tex. Crim. App. 2006) (Cochran, J., dissenting on other grounds). Texas "allow[s] jury trials under situations virtually no other state permits; our constitution holds that trial by jury is an 'inviolate right' which cannot be abridged; we permit jury sentencing in all criminal cases; we forbid a trial judge from commenting on the weight of the evidence, to name but a few of our 3

9

not defer perfunctorily to the federal judge's view of the evidence or yield to the temptation to draw its own conclusions about how conflicts in the proof should be resolved. The only question this Court must address is whether there is a 51% chance that a rational jury in a new trial, weighing all the admissible evidence plus exculpatory DNA test results on every item of evidence Mr. Skinner seeks to have tested, would harbor a reasonable doubt about Mr. Skinner's guilt. For the reasons we set out below, the answer must be "yes."4 state's unusually jury-deferential laws and policies." Id. at 429 n.47 (citing George D. Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis 53–57 (1977)). Texans would emphatically agree with Justice Scalia that the right to trial by jury "'reflect[s] a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges.'" Carella v. California, 491 U.S. 263, 268 (1989) (Scalia, J., concurring) (alteration in original) (citation omitted).

Against the plain language of the statute, Appellee argues that it would lower the standard for obtaining DNA testing to grant it where exculpatory results would lead even one juror to harbor reasonable doubt about guilt. (See Appellee's Br. at 26-27 n.2.) The Legislature in art. 64.03(a)(2)(A) did not burden a movant with showing that exculpatory test results would produce his acquittal, but instead only with showing that, if such results were presented, he "would not have been convicted."

See Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)A); see also Routier, 273 S.W.3d at 259 (expressing the standard as whether the exculpating DNA results "would more likely than not have caused the jury to harbor a reasonable doubt as to [Routier's] guilt and decline to convict her"). Acquittal and failure to convict are not synonymous. See Montez v. State, 824 S.W.2d 308, 309 (Tex. App. – San Antonio, 1992) (observing that for purposes of Strickland’s "prejudice" inquiry—i.e., whether, absent counsel's errors, the result of the proceeding might have been different— either "a hung jury or an acquittal" would constitute a "different outcome"). The Legislature certainly could have used the term "acquitted" if that is what it meant.

Cf. Ark. Code Ann. § 16-112-208(e)(3) (2006) (court may grant a new trial if DNA test results, "considered with all other evidence in the case . . . [would] establish by compelling evidence that a new trial would result in an acquittal" (emphasis added)).

4

10

C.

There Is at Least a 51% Probability that a Jury Would Harbor Reasonable Doubt About Mr. Skinner's Guilt If Presented with All the Reliable Evidence Plus Exculpatory DNA Testing Results.

Appellee nowhere disputes that in deciding the question set forth above, this Court must presume a jury that has before it DNA test results most favorable to Mr. Skinner—i.e., that the results on each and every one of the seven items to be tested all point to a single individual other than Mr. Skinner who was present at the scene, had physical contact with Twila Busby, handled the murder weapons, wiped his hands on a bloody dish towel, and left his jacket behind. That evidence alone would be more than enough to cause a rational jury to have reasonable doubt about Mr. Skinner's guilt.

Yet Appellee pays it no heed.

Appellee instead focuses on the other evidence developed post-trial that a jury on retrial would hear, quarreling that because such evidence has previously been found to be not credible, that should settle the question whether it could be viewed by a rational jury as casting doubt on Mr. Skinner's guilt.

Even on this score, Appellee is wrong.

The post-trial

evidence, especially when viewed together with exonerating DNA test results, would provide powerful additional support for a jury's refusal to convict.

11

1.

A Rational Jury Could Readily Credit Andrea Reed's Recantation Testimony If Viewed in the Context of Other Exonerating Evidence, Including Exculpatory DNA Testing Results.

Notwithstanding that the federal habeas court and this Court have failed to credit Andrea Reed's recantation testimony in other contexts, many of the circumstances surrounding that testimony would give a rational jury ample grounds to accept it as more consistent with other evidence of Mr. Skinner's innocence, including exonerating DNA test results.

Take, for

example, Andrea Reed's recantation of her claim, made at and before trial, that she "did not know" how Mr. Skinner got into her house. Ms. Reed's testimony at the federal evidentiary hearing presented a detailed and specific explanation of how she had to help the drunken and incoherent Mr. Skinner onto her porch and into her home. (See EH I:228, id. at II:270.) The federal district court found Ms. Reed's trial testimony more believable, apparently based on the police statement of Ms. Reed's eleven-year-old daughter Jessica and the testimony of neighbor Gerry Douglas.

(See

Appellee's Br. at 12 (citing the federal district court's opinion).)

Faced with exculpatory DNA results, a rational jury likely would reach the opposite conclusion based on the same record, notwithstanding Jessica Reed's statement.

By her own account, Jessica Reed was in her mother's

bedroom—located at the far end of the house from the front porch—when

12

Ms. Reed helped Mr. Skinner inside. (See RX 6 at 1.)

The only possible

source for Jessica Reed's statement on the night of the murders that "when she [Andrea Reed] got to the living room [Mr. Skinner] was in the house" is Andrea Reed herself, for whose police interrogation Jessica Reed was present. In other words, Jessica Reed had no firsthand knowledge of what happened, and her secondhand claims were based on precisely the same statements her mother explained and disavowed at the federal hearing.

Nor would Gerry Douglas's testimony compel a rational juror to reject Ms. Reed's recantation on this point. First, such a juror might well dismiss Mr. Douglas's testimony altogether as unreliable. For instance, Mr. Douglas in federal court described how Mr. Skinner was brought out of Ms. Reed's home wearing a shirt that was "tore up and . . . had blood on it."

III:754.)

(EH

In fact, Mr. Skinner was shirtless at the time. (Tr. 25:358 (Mr.

Skinner was wearing only "a pair of blue jeans and a pair of socks" when he was arrested).) A rational juror could disregard Douglas's testimony on this basis alone.

And, even if Ms. Reed did tell the same false story to Mr.

Douglas on the morning after Mr. Skinner's arrest, a rational juror would likely find that fact perfectly consistent with her federal court testimony. As Ms. Reed explained, once she inferred—however mistakenly—that the investigating officers thought she might have been assisting Mr. Skinner, and as a result feared they might charge her as an accessory, she stuck 13

steadfastly to the false details she had created to minimize Mr. Skinner's impairment and cast herself as a hostage in her own home. (See, e.g., EH 1:241.) Thus, the fact that Ms. Reed consistently told everyone the same false story then would not foreclose a juror from crediting her recantation

now.

In much the same fashion, a rational juror would likely credit Ms. Reed's post-trial admission that Mr. Skinner was so impaired that he needed help to get from one room to another inside Ms. Reed's home. True, it is undisputed that on the night of the crime, Mr. Skinner somehow managed to get from the house he shared with Twila Busby to Ms. Reed's house. But that fact alone would not necessarily convince a rational juror that Mr. Skinner was able to maneuver without assistance once inside an enclosed space. The expert testimony suggests that Mr. Skinner would have stumbled, fallen, and collided with fences and other objects repeatedly while covering the short distance between the two homes.

The record leaves plenty of room to

conclude that it took Mr. Skinner as much as a half hour, or even more, to traverse the few blocks between the two homes.5

The district court apparently doubted Ms. Reed's hearing testimony that Mr. Skinner, in fact, never threatened to kill her because only such a threat seemed to explain Ms. Reed's decision to try to sew up Mr. Skinner's hand herself, rather than seeking outside medical attention. But a rational juror could view these actions simply as reflecting Ms. Reed's unsophisticated and self-reliant character.

5

14

Other considerations the district court treated as important in making its findings with respect to Ms. Reed are similarly disputed by other substantial evidence in the record. For example, the district court apparently chose not to credit Ms. Reed's recantation in part because it perceived her as acting out of "personal remorse."

(See Appellee's Br. at 12-13 (citing the

federal court's opinion).) This may reflect the court's view of Ms. Reed's 1997 statement that she came forward in part because she did not want "to be responsible for the execution of a man who may be innocent." (See EH PX 1 at 7.) But the bulk of the record evidence actually shows that Ms. Reed showed remarkable persistence and assertiveness in coming forward to tell what really happened. Indeed, once Ms. Reed admitted that key parts of her trial testimony were false, she was immediately targeted by prosecutor John Mann and threatened with a perjury charge for signing her recanting affidavit. See Petitioner's Motion in Limine at 2-4 & Exs. 1-3, Skinner v.

Quarterman, No. 2:99-CV-0045, 2007 WL 582808 (N.D. Tex. Feb. 22, 2007), ECF No. 128 (showing both that Ms. Reed was brought before the grand jury and aggressively threatened by Mr. Mann with being prosecuted for perjury for having signed her recanting affidavit, and—troublingly—that Mr. Mann thereafter instructed the court reporter not to make that questioning part of the official record). Even facing that extreme pressure, Ms. Reed did not wilt.

Again concerned that the State might attempt to punish her for recanting by 15

charging her with perjury for her testimony in federal court, she consulted with court-appointed counsel during the 2005 evidentiary hearing—and, despite those concerns, nevertheless chose to return to the stand and testify.

A rational juror would likely find from these circumstances that the only pressure placed on Ms. Reed has come from the State, in the wake of her recantation.

Moreover, it is evident that Appellee clearly misunderstands the relevance of Andrea Reed's testimony that Mr. Skinner "had told her different stories about what had happened on the night of the murders" (Appellee's Br. at 17).

Appellee seems to think that this fact somehow

undermines the credibility of Andrea Reed's recantation of other parts of her trial testimony, or even that a rational juror would view this testimony, standing alone, as inculpatory.

Neither inference is reasonable.

It has

always been the position of the defense that Mr. Skinner told a series of wild, incoherent, and inconsistent stories to Andrea Reed. He did so because he was deeply confused and fighting through a heavy haze of drugs and alcohol, and was trying to make sense of what had happened earlier on the night of the crimes.

This kind of babbling is the "confabulation" described in Dr.

Lowry's testimony. (Tr. 29:1381-82.) It does not undermine Mr. Skinner's claim that he was too impaired to have committed the crime; it corroborates it. For the same reason, this testimony would lead a rational juror to credit 16

Andrea Reed's recantation of other parts of her testimony. The overall tenor of Ms. Reed's recantation is to confirm that Mr. Skinner was much more intoxicated than her trial testimony suggested.

The fact that he was

compulsively and unsuccessfully trying to reconstruct the events of earlier in the evening is more consistent with her corrected testimony in the federal hearing, and tends to show it to be true.

2.

Presented with the Evidence as a Whole, Including Exculpatory DNA Results, a Rational Jury Would Likely Conclude That There Is No Inconsistency Between the Evidence that Mr. Skinner Lacked the Capacity to Commit the Murderers and Yet Was Able to Travel on His Own to Ms. Reed's House.

Appellee rejects the possibility that a rational juror could be persuaded by the expert opinions of Dr. Lowry and Dr. Kalant that Mr. Skinner was too incapacitated to commit the murders. Appellee points to the federal district court's decision to discount Dr. Lowry's opinion after he testified in the federal hearing that it was surprising that Mr. Skinner was "able to walk to Andrea Reed’s house" despite the very large quantities of alcohol and codeine in his system. (Appellee's Br. at 19.) Appellee seriously misconstrues the evidence.

The question of Mr. Skinner's tolerance for drugs and alcohol was a key issue at trial. The State presented no toxicological evidence of its own; its only hope of countering the defense's expert testimony concerning the degree 17

of Mr. Skinner's impairment was to argue explicitly to the jury that Dr. Lowry's testimony did not apply to persons of "tolerance."

(See, e.g., Tr.

30:1553.) Thus, in evaluating how a rational juror armed with exculpatory DNA results would view Mr. Skinner's incapacitation defense, the question is whether there is evidence—proof that a reasonable juror likely would credit— that Mr. Skinner had not developed a tolerance for the specific drug with which his blood was suffused on the night of the crime—codeine.6 A rational juror would likely find from the evidence that Mr. Skinner had not engaged in the sole behavior that would have made him tolerant of codeine—namely, regularly using codeine for an extended period of time. The years of medical records in which Mr. Skinner regularly reported an allergy to codeine—records never presented at trial—are strong evidence that he avoided taking it. (See EH II:304-05.) If, as these records document, Mr. Skinner rarely, if ever, sought or ingested codeine, then a jury today would likely conclude that he lacked any "tolerance" for codeine, and thus that its synergistic effect when combined with alcohol would have been the same in Appellee engages in minute parsing of our opening brief to accuse us of trying to avoid saying that Mr. Skinner believed himself to be allergic to codeine and in fact avoided using it, and thereby developed no tolerance to codeine. (See Appellee's Br. at 19-20 (denouncing "lawyerly statements carefully crafted").) Yet Appellee cites the very passages of our opening brief in which we directed the Court to the evidence showing that Mr. Skinner, prior to the crime, had experienced what he believed to be an allergic reaction to codeine, and pointed out that years of medical records document that Mr. Skinner regularly reported such an allergy to health care providers. Appellee's umbrage on this score is a red herring.

6

18

Mr. Skinner as in any other person with no history of codeine use. (Id. at II:306-07).

It does not matter whether Mr. Skinner was in fact medically allergic to codeine, so Appellee's extended arguments on this score (see Appellee's Br. at 20-21) utterly miss the point.

Instead, the evidence shows that Mr.

Skinner avoided codeine, regardless of whether he was mistaken—or even lying—when he reported being allergic to it.7

It is irrelevant that Mr.

Skinner may have abused other drugs, including synthetic opioids like hydrocodone and its brand name equivalents, like Talwin and Vicodin (EH II:302), because in doing so he would not have developed a tolerance to codeine (Id. at II:307).8 Appellee places dispositive weight on the notion that because Mr. Skinner managed to get himself from the Busby house to Ms. Reed's house a

The State's own evidence from the federal hearing showed that Mr. Skinner avoided codeine—albeit for a reason other than allergy. His ex-wife Connie Neighbors confirmed that Mr. Skinner avoided codeine, although she claimed he did so because "it wasn't strong enough" for his taste. (EH at III:802-03.) Dr. Chamales likewise testified that drug abusers like Mr. Skinner often reported an allergy to codeine so they would be prescribed something stronger. (Id. at II:500; id. at II:50203.)

7

Chemically, codeine is a different substance than the synthetic opioids and it metabolizes into a different substance than they do. (EH II:307). As a result, the likelihood that a person is allergic to both codeine and the synthetics is low; indeed, synthetic opioids were developed "to try to reduce the adverse effects of codeine and morphine as a substitute for those, and it's perfectly common practice to substitute hydrocodone for a person having an adverse effect and reactions to codeine and/or morphine." (Id. at III:835; see also id. at III:835-36.)

8

19

short distance away, no juror could possibly credit Dr. Lowry's testimony about the extreme degree of Mr. Skinner's physical and mental impairment on the night of the crimes. (See, e.g., Appellee's Br. at 15-16.) But Appellee's position fails to acknowledge that a rational juror could easily conclude that Mr. Skinner was too impaired to commit the murders—especially if, in doing so, Mr. Skinner had to contend simultaneously with both Twila Busby and Elwin Caler, as confirmed by the police department's own blood spatter analysis9—but not so impaired that he was unable to stumble or stagger the few hundred yards from one house to another.10 After all, Dr. Lowry testified that Mr. Skinner was not comatose but instead was in a "stuporous" state.

(Tr. 29:1382.)

In that condition, he

"would have impaired balance and staggering gait and would require some assistance to remain in an upright position and commonly holding onto The blood spatter report showed that spots of Twila Busby's blood had been cast off onto Elwin Caler's under shorts, likely because he was present when she was being beaten. (See EH PX 75 at 1.) A rational juror, viewing the overall evidentiary picture in light of favorable DNA test results, would likely find that the report directly rebuts the State's claims at trial that (1) even a highly intoxicated and heavily drugged Mr. Skinner could have murdered both Randy Busby and Elwin Caler, because all he had to do was stab them as they lay sleeping in their bunks, and (2) Mr. Skinner's handprint on the door frame of the bedroom shared by Caler and Randy Busby was not left when Mr. Skinner fell in a drunken stupor but when Caler, realizing Mr. Skinner was trying to kill him, came out of his bunk and knocked Mr. Skinner down. (See Tr. 30:1607-08.)

9

Appellee says Elwin Caler would have been an "easy victim" for an assailant because he allegedly suffered from "muscular dystrophy, a disease that weakens muscles and hampers movement." (Appellee's Br. at 22.) In fact, the medical examiner testified that she saw nothing "in relation to muscle or to body structure that would cause . . . Elwin Caler to be physically disabled." (Tr. 28:1212.)

10

20

things is [sic] a way to maintain that upright position." (Id. at 29:1384.)

A

person in such a state "would be exerting primarily most of [his] energy trying to stand or walk" and would be in no condition to summon the energy or coordination necessary to inflict lethal injuries on three people with a club or a knife. (Id. at 29:1376.) A reasonable juror could easily reconcile that degree of impairment with the known fact that Mr. Skinner managed to stagger down the alley to Andrea Reed's house. Staggering and stumbling does not require the mentally and physically impaired subject to overmatch or subdue anyone else, and it can be done on the subject's own time: He can take as long as needed, even if his travel is interrupted by repeatedly falling down or pausing to regain his balance by holding on to a backyard fence, a garbage can, or a garage door.

Finally, in addition to the toxicology and other forensic evidence described above, other important evidence would tend to persuade a rational jury—particularly one working to reconcile the rest of the evidence with exculpatory DNA test results—that Mr. Skinner lacked the physical capacity to inflict some of the fatal injuries sustained by Twila Busby.

Medical

examiner Elizabeth Peacock attested that Twila Busby was strangled to the point of unconsciousness, and that her assailant strangled her with such force that Ms. Busby's right hyoid bone and larynx were broken.

(Tr.

28:1186-87; see also EH RX 27 at 4 (autopsy report) ("Internal examination of 21

[Twila Busby's] neck reveals fracture of the right hyoid bone and fracture of the thyroid cornu of the right larynx, with attendant soft tissue hemorrhage").) Six months before the crimes, Mr. Skinner had sustained an injury to his right hand; at trial, professional occupational therapist Joe Tarpley testified that this injury had left Mr. Skinner unable to apply the force necessary to inflict these extreme strangulation injuries. (Tr. 29:130920.)

Appellee does not even mention this evidence, and for an obvious

reason—it is another red flag that the State may well have the wrong man, and, in combination with exculpatory DNA results, evidence that would very likely leave a rational jury harboring reasonable doubt about his guilt.

3.

Appellee Is Conspicuously Silent Regarding the Evidence Pointing to Robert Donnell as the Real Killer.

Glaringly absent from Appellee's analysis is any mention of the evidence pointing to Robert Donnell as the real killer. Appellee's silence can only be read as acknowledgement that this evidence would have a profound impact on a jury hearing it alongside exculpatory DNA testing results.

The federal court did not consider whether the additional evidence about Donnell developed during habeas proceedings might have made a difference to jurors weighing the State's case against Mr. Skinner.11 This

The federal court considered the evidence pointing toward Donnell only in the context of whether trial counsel were ineffective in presenting only a small portion of it. Having found that trial counsel's performance met minimal standards of 11

22

Court, however, must predict the behavior of a jury that not only hears all of the reliable evidence, including the abundant evidence pointing the finger at Donnell, but also has before it exculpatory DNA test results.

See, e.g.,

Routier, 273 S.W.3d at 257-59. In the context of this case, that means DNA test results that place someone other than Mr. Skinner or the victims at the scene of the murders—someone whose DNA is present on the knives found there, whose DNA is also present under Twila Busby’s fingernails, on the "rape kit" swabs, and on the bloody dish towel, and whose DNA is present on the men's windbreaker jacket found next to Twila Busby's body. A review of the evidence concerning Donnell makes clear that a rational juror would not find that the State's case had been proven beyond a reasonable doubt.12

performance, the court did not reach the question of whether Mr. Skinner was prejudiced by that performance. Notably, Mr. Skinner's lead trial counsel Harold Comer agreed in his federal hearing testimony that if the defense had known what Ms. Ellis knew about Donnell, they probably would have presented it. (EH I:15152.)

Appellee contends that the results of mitochondrial testing of the two hairs found in Twila Busby's hand do not help Mr. Skinner because the hair that came from Twila or a maternal relative could as easily have come from Twila herself or one of her children as from Donnell, and the other, which plainly did not come from Twila or a maternal relative, excludes Donnell as a contributor. (Appellee's Br. at 24-25.)

While both statements are true, they are of little consequence here. The significance of the evidence presented at the federal evidentiary hearing regarding GeneScreen's mitochondrial testing of the hairs is not that the results necessarily implicated Donnell but that, when properly understood, they show that Mr. Skinner was likely not the source of either hair, contrary to the District Attorney's claims at the time, and contrary to the assumption about those hairs this Court made in Skinner v. State, 122 S.W.3d 808, 811 (Tex. Crim. App. 2003) ("Skinner I"). (See Appellant's Br. at 53-58 (discussing Skinner I and the GeneScreen testing); id. at 58 (acknowledging that the GeneScreen test results "contribute little to an art.

12

23

The testimony of Donnell's next-door neighbor, Deborah Ellis, would weigh especially heavily on such a juror's mind. Ms. Ellis would paint a vivid picture of Donnell as an abusive drunk who routinely was violent toward his wife and anyone else who annoyed him. (See Appellant's Br. at 22.) She also would tie Donnell to the windbreaker jacket found next to Twila Busby's body and describe his total lack of emotion when informed of the crime. (Id. at 2223.) And, most dramatically, she would detail for the jury Donnell's maniacal scrubbing of his "clunker" of a pickup truck within a few days after the murders in an apparent effort to destroy evidence.

(Id. at 23-24.)

This

startling testimony—coupled with the testimony from James Ellis and Vickie Broadstreet regarding Donnell's violent nature and his jealousy of Twila Busby's affairs with other men (see id. at 24-25), and with the evidence that

was presented at trial of Donnell's stalking Twila Busby at the New Year's Eve party and then suddenly disappearing shortly after she left the party (id. at 25)—certainly provides abundant grounds for any rational juror to doubt

64.03(a)(2)(A) finding, other than to suggest that if one of the hairs in Ms. Busby's hand did come from the murderer, that person was not likely Mr. Skinner").) More to the point, the fact that the results of the mitochondrial testing of the second hair exclude Donnell does not in any way rule out Donnell as the murderer, notwithstanding Appellee's contrary implication (see Appellee's Br. at 25 ("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.")).

24

Mr. Skinner's guilt.

In failing to address this evidence, Appellee tacitly

admits that this is so.

D.

The Alleged "Confessions" on Which Appellee So Heavily Relies Do Not Change the Analysis.

Appellee asserts throughout its brief that what it describes as

Mr. Skinner's "confessions," obtained during two sessions of post-arrest interrogation by law enforcement, foreclose any reasonable likelihood that he could be acquitted in a new trial. (See, e.g., Appellee's Br. at 2-6, 27, 31.)

That assertion is mistaken. As we show below, there are numerous legal and factual reasons not to place any weight on those statements in deciding whether this case satisfies art. 64.03(a)(2)(A).

The statements resulted from a January 1, 1994 interview with Detective Terry Young and a second interview three days later, on January 4, 1994, with Sheriff Randy Stubblefield and Investigator Billy McMinn. The second statement was admitted in evidence at Mr. Skinner's trial. Contrary to Appellee's characterization of it, it is not a confession. Rather, it is the transcript of an interview in which Mr. Skinner repeatedly said he cannot remember what happened. (See, e.g., Appellee's Br., App. 3 at 2 ("I don't remember anything"; id. at 12 ("I don't know what happened. I wish I did.

I'd tell you."). The closest it comes to an admission is Mr. Skinner's highly qualified statement, selectively quoted by Appellee (Appellee's Br. at 6), that: 25

"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" (Appellee's Br., App. 3 at 12 (emphasis added)).

But the transcript is also replete with statements in

which Mr. Skinner says he does not in fact believe he killed anyone. (See,

e.g., id. at 10 ("I can't imagine me killing anybody, you know. I really don't know what happened. I wish I did.").) Thus, a jury having a full record of the admissible and reliable evidence before it, plus exonerating DNA test results, would in no way be foreclosed by the January 4 statement from acquitting Mr. Skinner.

The first of the two statements, given to Detective Young on January 1, was never admitted into evidence at the trial. Indeed, the prosecution made no effort to have the first statement admitted. For the reasons we explain below, that statement should not be considered by this Court for any purpose in its art. 64.03(a)(2)(A) analysis.

1.

The January 1 Statement Is Factually Unreliable.

The circumstances under which the January 1 statement was given make it highly unreliable. In the first place, when interrogated on January 1, Mr. Skinner still had significant quantities of alcohol and codeine in his system,13 had been without bed rest for at least 24 hours, was suffering from

At 5:30 a.m. that morning, when blood was drawn, Mr. Skinner had a blood alcohol level of .11, still well above the legal limit for intoxication, and a codeine 13

26

a painful hand injury (for which he had been given additional pain medication at the hospital around 5:30 a.m. (EH RX 38 at 1469)) and, at a minimum, had to have been in the midst of a massive hangover. As a result, anything Mr. Skinner had to say about what transpired the night before could not possibly be viewed as reliable.14 The second salient fact that leaps off the page of the January 1 statement is how many times Mr. Skinner says he is unable to recall what happened or "doesn't know" the answer to a question. Mr. Skinner's very first statement is to caution, "I don't remember a lot of [what happened]."

(Appellee's Br., App. 1 at 3-4.) Indeed, 35 times in 20 pages of transcript, Mr. Skinner can only offer some variation on that response—"I don't remember"; "I ain't sure"; "I don't know"; "I can't remember"; "I'm not sure"; "I just can't remember"; "I don't even remember"; "I don't know what it would be"; I just concentration of 0.18 mg/l, approximately equivalent to a normal therapeutic dose.

(Def''s Trial Exs. 13 A & 14A.) The transcript of the January 1 interview shows that the videotaped portion of the interview commenced at 9:58 a.m. (see Appellee's Br., App. 1, at 2), but Detective Young acknowledged in pre-trial hearings that he actually commenced his interrogation three-and-a-half hours earlier, at 6:30 a.m.

(See Statement of Facts (Writ of Habeas Corpus), Skinner v. State, No. 29,027 (223rd Jud. Dist., Gray Cnty., Tex., Jan. 24, 1994) ("Pretrial Habeas Tr.") at 92 ("Q. [by Defense Attorney Comer] How long did you interview [Mr. Skinner] before the video? A. [by Detective Young] About three and a half hours.")). Detective Young also acknowledged that he "could detect an aroma of an alcoholic beverage on [Mr. Skinner's] breath at that time . . . ." (Id. at 100.)

Controlled laboratory experiments have proven that sleep deprivation by itself can heighten a person's susceptibility to influence, limit the ability to sustain attention, reduce flexibility in thinking, and impair decision-making in complex tasks. See, e.g., Mark Blagrove, Effects of Length of Sleep Deprivation on Interrogative Suggestibility, 2 J. Experimental Psychol: Applied 48-59 (1996).

14

27

don't remember what all happened"—as he struggles to make sense of his fragmentary, distorted recollections of events that took place just a few hours earlier. His memory is a jumble of disconnected bits—"I think of all kinds of stuff, man, but don't—don't none of them make any sense" (id. at 18)—and he is unable to construct any kind of sensible narrative from them: "I just can't remember, man. I have little flashes in my mind but they don't make any sense. I can't put them in any kind of order. I can't—I can't put it together.

I don't remember" (id.).

The January 1 statement also raises grave concerns about its reliability because it contains statements which are demonstrably at odds with known facts. At one point, Mr. Skinner asserts that he left the Busby house at some point on the afternoon or evening of New Year's Eve—it is not clear which, although Mr. Skinner states that it was not yet dark—and, when he returned, Twila Busby "was in bed with Shane Bromlow," and Mr. Skinner "[ran] him out of the house" (id. at 4). There is no evidence at all, from any source, that a "Shane Bromlow" was ever in the house, much less in bed with Twila Busby, on the afternoon or evening before she was murdered, or that Mr. Skinner chased him from the home.

At another point, Mr. Skinner

speculates that he "must have had some kind of shoes on" when he was arrested at Andrea Reed's seven hours earlier (id. at 16), when in fact at that time he was wearing only blue jeans and socks. (Tr. 25:358.) Mr. Skinner 28

cannot remember whether it was the kitchen or the living room where he saw Twila lying on the floor. (Appellee's Br., App. 1 at 8-9.) Despite encouraging this Court to treat Mr. Skinner's January 1 statement as a "confession," Appellee does not even attempt to account for the fact that Mr. Skinner does not remember "anything about a knife" (id. at 18-19), or "even remember seeing" Randy Busby (id. at 18). Mr. Skinner thinks—wrongly—that he may have telephoned Andrea Reed before going to her house. (Id. at 6.) He says that he "left [the house] . . . to go talk to somebody about some business" and returned to find Twila gone, and that "the argument started" when she came back. (Id. at 13-14.) But that cannot be true because Twila left with Howard Mitchell, and, according to Mitchell, when they did so Mr. Skinner was in the house, lying unresponsive on the sofa. (Tr. 26:611.)

Significantly, Mr. Skinner's statement reveals that this taped interview is not the first time he has spoken with police about what happened the previous night. Asked whether he "remember[s] anything about a knife being involved in any of it," Mr. Skinner answers, "When somebody talked to me this morning—I don't know if it was you or somebody else asked me about a kitchen knife." (Appellee's Br., App. 1 at 19.) As indicated above, Detective Young admitted that he interviewed Mr. Skinner for three-and-a-half hours before he turned on the videotape machine (see note 14 supra), and that Mr. Skinner had conversed before then with the police officer who took Mr. 29

Skinner to the hospital for treatment of his hand and for the 5:30 a.m. blood sample drawing, as well as with a Sheriff's Office investigator. (See Pretrial Habeas Tr. at 84, 93.) Thus, by 9:58 a.m. on January 1, police had already had lengthy conversations with Mr. Skinner in which he learned facts about the crimes.15 All of these circumstances—a suspect's mentally and physically impaired state, his inability to remember events clearly, completely, or in sequence, his assertion of factual claims later shown to be false, and his prior exposure to information about the crime through questioning by the police— are hallmarks, or "red flags," of false confessions.16 See, e.g., Richard A. Leo, "False Confessions: Causes, Consequences and Implications," 37 J. Am. Acad.

Psychiatry Law 332, 339 (2009) (sleep deprivation and fatigue increase the probability of false confessions); id. at 340 (false confessions are often "replete with errors" because the suspect must "reason[] from inference rather than actual knowledge"; such statements are often couched in "equivocal, speculative, and uncertain language," such as "I guess I did it," or "I must have done it," even while the suspect insists that he "still do[es] not know or Detective Young also employed interview techniques that presented serious risk of eliciting unreliable information. For example, he remembered telling Mr. Skinner, when "he doesn't think that he did this, . . . I would tell him 'Yes, I think that you did do it." (Pretrial Hearing Tr. at 97.)

15

In addition, Mr. Skinner's lead trial counsel Harold Comer confirmed during the federal evidentiary hearing that Mr. Skinner never told him that the statements in the January 1 interview were true. (EH 1:199.)

16

30

remember the details");17

True Stories of False Confessions at vii (Rob

Warden & Steven A. Drizin, eds. 2009) ("Warden & Drizin") (explaining that the classic "red flags" for false confessions include when the confessions "don't fit the facts," and when law enforcement authorities fail to take due regard of "the circumstances under which [the statements] were made" and "the mental state of the person" making them); Saul M. Kassin, A Critical

Appraisal of Modern Police Interrogations, in Investigative Interviewing: Rights, Research, Regulation (T. Williamson, ed. 2006) (noting that false confessions often contain details about the crime that the innocent confessor learned from police questions, photographs, visits to the crime scene, or other secondary sources).

Equally important in the present context, experience with DNA testing confirms that even innocent people sometimes offer addled, incomplete

These aspects of Mr. Skinner's statement are also consistent with the view expressed by Dr. Lowry at trial. Dr. Lowry opined that persons like Mr. Skinner, whose brain functioning is already impaired as a result of years of extremely high doses of alcohol and drugs, tend to "confabulate" in order to make sense of what they experienced while heavily intoxicated:

17

[they] start unconsciously or subconsciously trying to fill in the blanks, not intentional, but the brain working somewhat like a computer will start putting pieces of information in the blank areas. It's more like a fantasy type of recall. Persons not intentionally making things up, but in essence, that's what is happening. Some have termed this, "confabulation" which has been a scientific term for the fantasy re-creation in organic brain disease.

(TR Tr. at 29:1381-82.)

31

"confessions" to the authorities—statements indistinguishable from those upon which Appellee urges this Court to deny Mr. Skinner DNA testing. The Court no doubt recalls the disturbing Ochoa/Danziger case, which involved precisely such facts.18

And in 2006, this Court had to throw out the

conviction of Eugene Henton, who had pleaded guilty to rape in Dallas County in 1984 despite being innocent of that crime, as later proven by DNA testing.19 Nationwide, the Innocence Project has identified, at most recent count, no fewer than 77 cases in which post-conviction DNA testing has conclusively exonerated defendants who had previously made inculpatory admissions, confessed fully to crimes they did not commit, and/or pleaded guilty in open court with the full panoply of procedural protections.20

Christopher Ochoa and Richard Danziger were convicted of raping and murdering Nancy DePriest, who worked at an Austin pizza restaurant. Ochoa gave a detailed confession implicating both himself and Danziger, and it formed the basis of the State's case against both men. Even after the state's case began to unravel—after the real perpetrator wrote to authorities and confessed that he alone was responsible for the DePriest murder—Ochoa, during an interview with police at the prison where he was confined, doggedly maintained that he had shot Nancy DePriest. DNA testing eventually confirmed that the man who claimed sole responsibility for the crime was in fact guilty, and that Ochoa and Danziger were both innocent. See generally Know the Cases: Christopher Ochoa, Innocence Project, http://www.innocenceproject.org/Content/Christopher_Ochoa.php (last visited Apr. 12, 2012).

18

See

generally

Know

the

Cases:

Eugene

Henton,

Innocence Project, http://www.innocenceproject.org/Content/Eugene_Henton.php (last visited Apr. 12, 2012).

19

See generally Know the Cases: Search the Profiles, Innocence Project, http://www.innocenceproject.org/know/SearchProfiles.php?check=check&title=&yearConviction=&yearExoneration=&jurisdiction 20

32

No doubt the Legislature was aware that confessions—even judicially endorsed guilty pleas—can be factually infirm when it refused to bar defendants who pleaded guilty from seeking post-conviction DNA testing.

See Tex. Code Crim. Proc. Ann. art. 64.03(b); Ex parte Gutierrez, 337 S.W.3d 883, 894 (Tex. Crim. App. 2011) (acknowledging this aspect of Chap. 64).

Plainly, if a judicially screened guilty plea entered with the assistance of counsel does not foreclose post-conviction DNA testing, then, in light of all the other circumstances of this case, Mr. Skinner's January 1 statement to law enforcement—which the State did not even offer at trial (see discussion

infra)—should not either.

For all these reasons, the January 1 statement bears so many of the classic "red flags" of a false confession that it cannot be relied upon to defeat Mr. Skinner's request for DNA testing.

2.

The Factually Unreliable January 1 Statement Was Also Unconstitutionally Obtained.

The January 1 statement was also involuntary and coerced, in violation of Mr. Skinner's federal constitutional right to due process. As noted above, at the time of the interrogation Mr. Skinner still had significant quantities of alcohol and codeine in his system, had gotten no sleep that night, had a painful hand injury, and was hung over.

The combination of these

=&cause=False+Confessions+%2F+Admissions&perpetrator=&compensation=&con viction=&x=28&y=5 (last visited Apr. 12, 2012).

33

circumstances impaired Mr. Skinner's judgment and left him unable to withstand efforts to overbear his will. Because his resulting statement was not "the product of a rational intellect and a free will," it was involuntary.

Mincey v. Arizona, 437 U.S. 385, 398 (1978) (internal quotation marks omitted) (citation omitted).

Determining whether a suspect's custodial statements were freely and voluntarily made requires examining the "totality of the circumstances,"

Brown v. Illinois, 422 U.S. 590, 614 n.5 (1975), and the suspect's physical condition is a powerfully relevant factor in that calculus.

Withrow v.

Williams, 507 U.S. 680, 693-94 (1993); see also, e.g., Beecher v. Alabama, 389 U.S. 35, 37 (1967) (confession signed by injured suspect who was "[s]till in a 'kind of slumber' from his last morphine injection" was involuntary); Mincey, 437 U.S. at 398-99 (finding the defendant's custodial statement involuntary in part because he "was evidently confused and unable to think clearly about either the events [of the time period when the crime occurred] or the circumstances of his interrogation, since some of his . . . answers were, on their face not entirely coherent"). Moreover, a defendant's intoxication is relevant to the voluntariness inquiry because it can make mental or physical coercion by the police more effective. See United States v. Chrismon, 965 F.2d 1465, 1469 (7th Cir. 1992).

34

Here, the record reflects that Mr. Skinner had ingested life-threatening quantities of alcohol and codeine the night before and was still intoxicated and exhausted during the interrogation by Detective Young that produced the January 1 statement. Detective Young repeatedly used the coercive and unreliable tactic of providing information to Mr. Skinner about the crime and having him confirm that information.

(See Pretrial Habeas Tr. at 96-97

(Detective Young admits that he gave Mr. Skinner "bits and pieces" of the facts about the crime to prompt responses, e.g., that he "gave him some facts about the condition of the boys; what happened to them; their wounds" and "asked him to confirm" those events).) For all these reasons, the January 1 statement was involuntary and coerced, and cannot be used against Mr. Skinner for any purpose. See Mincey, 437 U.S. at 398.

The January 1 statement also was obtained in violation of Miranda.

The record on this issue is incomplete because District Attorney Mann announced on his own accord, in the midst of a pre-trial suppression hearing six months before the trial, that he was not going to offer the statement unless Mr. Skinner testified at trial, which did not happen.21 See Transcript

The record does reflect, however, that before the interrogation began, Mr. Skinner expressed a desire to speak with someone in an "office" in Amarillo by telephone before answering any questions. (See, e.g., Pretrial Habeas Tr. at 86-87 (Det. Young: "He said this person was in Amarillo and had offices, and I informed him that—of the day that it was and everything, that there might not be anybody there but he was welcome to try").) When asked whether he believed that Mr. Skinner 21

35

of Hearing on Pretrial Motions (September 19, 1994) at 116, State v. Skinner, No. 5216 (31st Jud. Dist., Gray Cnty., Tex. 1994) (Mr. Mann announces that "[W]ith regard to the video statement taken by Detective Terry Young the State . . . will not be using that statement unless Mr. Skinner takes the stand. In which event I will use it for impeachment purposes"); id. at 117 ("I'm not going to use [that statement] unless Mr. Skinner testifies"). Mr. Mann was emphatic about the inadmissibility of the January 1 statement when he was questioned about it at the federal evidentiary hearing. Asked whether he had perceived prior to trial "a risk that [the January 1 statement] might not be admissible," Mr. Mann minced no words: "I didn't conclude that there was a risk that it wouldn't be admissible. I knew darn well that it wasn't admissible." (EH 1:88.) Mr. Mann went on to state that the January 1 statement was "so blatantly violative of the defendant's rights" that he "wouldn't have tried to offer [it]." (Id.) We are aware that this Court stated in Ex parte Gutierrez, 337 S.W. 3d 883 (Tex. Crim. App. 2011), that "in a Chapter 64 proceeding, the constitution does not bar a judge from considering statements that were (or should have been) inadmissible at trial."

Id. at 893-94.

Gutierrez, however, is

distinguishable on two grounds. First, in sharp contrast to the confessions at

was trying to reach a lawyer, Detective Young admitted: "It's a possibility. Yes, sir."

(Id. at 90.)

36

issue in Gutierrez, the statement taken from Mr. Skinner on January 1, 1994 is highly unreliable for all the reasons we have set out above. Gutierrez itself made it clear that only "reliable" evidence can be taken into account in Chap.

64 proceedings. Id. at 893 ("[t]he information [used for a Chap. 64 finding] must be reliable"). Second, while Gutierrez speaks in sweeping terms of the admissibility in Chap. 64 proceedings of statements that would be inadmissible at trial, the precise issue in Gutierrez was whether the statements could be considered to determine whether identity was at issue.

In that regard, the Court noted that "[t]he legislature has placed no barriers to the type of relevant and reliable information that the trial judge may consider when determining if identity was or is an issue in the case." Id. at 893. However true that statement may be with regard to art. 64.03(a)(1)(B), which requires that identity be at issue, it is most decidedly not true with respect of art. 64.03(a)(2)(A), which directs the Court to evaluate whether the movant "would not have been convicted." Implicit in the Legislature's choice of language in this provision is the requirement that the Court make its art.

64.03(a)(2)(A) determination based only upon admissible evidence, for a "conviction" can only result from a guilty plea or a trial, and every trial is governed by legal constraints on proof, including the exclusionary rule.22

Furthermore, if Gutierrez were to be applied here, it would raise serious constitutional issues. The premise for the Court's conclusion in Gutierrez that 22

37

*

*

*

In short, Appellee's case for denying Mr. Skinner DNA testing is based almost entirely on unreliable and inadmissible evidence, prior court decisions applying now-superseded legal standards, and inapplicable doctrines of issue preclusion.

Appellee cites this Court's decision in Routier only twice in

passing (see Appellee's Br. at 8, 28), with no serious effort to distinguish it, and fails even to mention, much less attempt to distinguish In re Morton, 326 S.W.3d 634 (Tex. App. – Austin 2010, no pet.). For all the reasons discussed in detail in Mr. Skinner's initial brief (see Appellant's Br. at 36-50), the Court evidence inadmissible at trial can be considered in a Chap. 64 proceeding appears to be that an action under Chap. 64 "does not involve any constitutional considerations." Gutierrez, 337 S.W.3d at 892; see also id. at 893 (stating that a Chap. 64 proceeding "is an independent, collateral inquiry into the validity of the conviction, in which exclusionary rules have no place, and there are no constitutional considerations"). We respectfully disagree. As the Supreme Court has held, the procedures by which States grant or deny postconviction DNA testing are subject to the requirements of the Due Process Clause. See Dist. Att'y's Office v.

Osborne, 557 U.S. 52, 129 S. Ct. 2308, 2320 (2009) (federal constitution requires that state-created post-conviction remedies for DNA testing exhibit "'fundamental fairness in operation'") (citation omitted)); Skinner v. Switzer, 131 S. Ct. 1289, 1293 (2011) (citing Osborne) (a prisoner may have a valid federal constitutional challenge to state post-conviction DNA testing procedures if the "governing state law denies him procedural due process")); see also, e.g., Evitts v. Lucey, 469 U.S. 387, 393 (1985) (where a State creates mechanisms for post-conviction relief, "the procedures used . . . must comport with the demands of the Due Process . . . Clause[]"). In Skinner, the Supreme Court held that Mr. Skinner could challenge Texas's Chap.

64 procedures in a federal civil rights action and remanded the case to the United States District Court for the Northern District of Texas in Amarillo, which is deferring its decision to see what federal constitutional issues remain after this Court resolves the present appeal. Interpreting art. 64.03(a)(2)(A) to authorize the denial of post-conviction DNA testing based on a statements unconstitutionally obtained and inadmissible at trial to obtain a conviction would raise fundamental due process concerns.

38

should apply the reasoning of those cases here to grant Mr. Skinner the limited DNA testing he requests.

II.

Article 64.03(a)(2)(B) Does Not Preclude Mr. Skinner's Request for DNA Testing.

Appellee made no effort to argue below that art. 64.03(a)(2)(B), which

bars motions that unreasonably delay execution of sentence, is applicable to this case. Without providing any reasoning, the district court nonetheless

sua sponte found the provision applicable, and Appellee scrambles to defend that finding here.

Appellee acknowledges that Mr. Skinner filed his Third Motion promptly after the Legislature's 2011 amendment to Chap. 64 became effective. But it nevertheless contends that art. 64.03(a)(2)(B) should bar consideration of the Third Motion for two reasons.

First, Appellee argues that while art. 64.03(a)(2)(A), the "differentoutcome" provision, may no longer include a requirement that the prisoner who seeks testing show that exonerating DNA results would prove him actually innocent, an actual innocence requirement is implicit in art.

64.03(a)(2)(B). (See Appellee's Br. at 30-32.) According to Appellee, a Chap.

64 motion by a prisoner who cannot show his actual innocence "is the very definition of an effort to 'unreasonably delay' the administration of justice."

(Appellee's Br. at 29.)

Inescapably, Appellee's argument implies that the 39

Legislature wasted its time amending subsection (A) of art. 64.03(a)(2) to remove the actual innocence requirement, because exactly the same

requirement can—and should—be read into the word "unreasonably" in the very next subsection. The joke, to hear Appellee tell it, is on the Legislature for foolishly thinking it had made a substantive change in the law when it amended art. 64.04(a)(2)(A).

Such an effort to thwart clear legislative intent cannot prevail. The plain language of art. 64.03(a)(2)(B) shows that it addresses not the substance of a Chap. 64 motion but whether it is timely filed. Whatever latitude the Court has to interpret the words "unreasonably delay," it cannot give them the meaning Appellee urges.

To do so would bring art.

64.03(a)(2)(B) crashing headlong into the now-amended "different outcome" provision that immediately precedes it.

The Legislature could not have

intended such nonsense. See, e.g., Smith, 165 S.W.3d at 364 ("'Despite the reasoning in Kutzner [v. State, 75 S.W.3d 427 (Tex. Crim. App. 2002)], the Legislature did not intend for the defendant to have to prove "actual innocence" . . . in order to meet his burden to have the test done." (quoting House Criminal Jurisprudence Committee, Bill Analysis, Tex. H.B. 1011 78th Leg., R.S. (2003))).

Furthermore, even if "actual innocence" were somehow at issue at this preliminary stage of the proceedings—before DNA testing has even been 40

performed—the evidence Appellee offers to show Mr. Skinner's supposedly obvious guilt falls far short of doing so. Appellee first relies on the January 1, 1994 statement that Mr. Skinner made when he was still high on alcohol and drugs the morning after the murders. Enough has been said above about the unreliability of that inadmissible evidence.

(See Section I.D. supra.)

In

addition, Appellee cites to Mr. Skinner's pre-trial offer to plead guilty to one count of murder in exchange for a life sentence, as though that were evidence of his guilt. (See Appellee's Br. at 31.) As this Court has acknowledged, and as every criminal lawyer knows, even innocent persons sometimes have powerful incentives to plead guilty, especially when they are facing a possible death sentence: The guilty plea process is not perfect. But guilty pleas allow the parties to avoid the uncertainties of litigation. The decision to plead guilty, as we have seen in this case, may be influenced by factors that have nothing to do with the defendant's guilt. The inability to disprove the State's case, the inability to afford counsel, the inability to afford bail, family obligations, the need to return to work, and other considerations may influence a defendant's choice to plead guilty or go to trial.

Ex parte Tuley, 109 S.W.3d 388, 393 (Tex. Crim. App. 2002). As the Court further explained in a footnote, An innocent person may want to take advantage of a discounted sentence in a plea bargain, rather than gamble on a far greater sentence if a mistaken verdict is returned. Or a person may not know what he is admitting and accept his attorney's advice that a guilty plea is prudent. Or a person may be under some pressure

41

to accept responsibility for something he did not do, in order to protect someone else, whom he loves or fears.

Id. at 393 n.2; see also Bordenkircher v. Hayes, 434 U.S. 357, 368 n.2 (1978) (noting that defendants may have reasons other than actual guilt for pleading guilty); Ex parte Tomlinson, 295 S.W.3d 412, 420 (Tex. App. – Corpus Christi 2009, no pet.) (explaining that "there are several reasons a defendant may have for pleading guilty, many of which have nothing to do with the defendant's guilt or innocence").

Finally, although Appellee grudgingly acknowledges that Mr. Skinner himself has firmly asserted his actual innocence (see SSR 1:89-90 (sworn declaration of Henry W. Skinner attesting that he is "actually, factually, & totally, legally & any other definition, innocent of this crime!")), Appellee claims that "[i]t speaks volumes that [Mr.] Skinner's own lawyers are unwilling to stake their professional reputations and livelihoods on a proclamation of their client's actual innocence."

(Appellee's Br. at 32.)

According to Appellee, the Court should base a finding of Mr. Skinner's actual guilt on the Appellee's contention that undersigned counsel have "carefully hedged" our words so as to assert only his legal, not actual, innocence. (Id. at 31-32.)

42

We are frankly mystified at the Solicitor General's obsessive focus23 on the words within which we, as counsel for Mr. Skinner, articulate his case.

There is no intent to hedge our words, nor are we attempting to draw a fine distinction between legal and actual innocence in order to protect our "reputations and livelihoods" (Appellee's Br. at 32). Not having been present when the crime occurred, we—like all defense lawyers—cannot state as a fact that our client is either innocent or guilty. What we can and do say in this case, however, with vehemence, is that the evidence gives us every reason to believe that Mr. Skinner could indeed be factually innocent.

Equally

important, and contrary to Appellee's reckless insinuations, we possess no secret knowledge that he is in fact guilty. Appellee demeans the dignity of our shared profession in encouraging the Court to read into our silence the subliminal message that we know our own client to be guilty, because we know no such thing.

The audacity of Appellee's first ground for urging the Court to apply art. 64.03(a)(2)(B) to bar Mr. Skinner's motion is matched only by that of its second—that Mr. Skinner had the opportunity to test the DNA evidence prior to trial "and deliberately chose to spurn it" (Appellee's Br. 32). By Appellee's

Since the Solicitor General took over as counsel for the State in early 2011, virtually every pleading his office has filed against Mr. Skinner has taken this same tack—arguing that because we are somehow "hedging our words," we must know as a fact that our client is actually guilty.

23

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reckoning, nothing that the Legislature removes from the statute ever goes away—it just finds a new home in art. 64.03(a)(2)(B)! In Skinner II, this Court held that former art. 64.01(b)(1)(B) barred Mr. Skinner's Second Motion precisely because he failed to ask for DNA testing prior to trial.

Skinner II, 293 S.W.3d at 201-02. Evidently unhappy with that result, the Legislature in 2011 removed art. 64.01(b)(1)(B) from the statute. See Certain Pretrial and Post-Trial Procedures and Testing in a Criminal Case, 82d Leg., 2011 Reg. Sess., ch. 14 § 5, 2011 Tex. Sess. Law Serv. Ch. 278 (H.B. 1573) (Vernon) (amending Tex. Code Crim. Proc. Ann. art. 64.01). Appellee would have the "no-fault" requirement of art. 64.01(b)(1)(B) linger even after its body has disappeared, like the Cheshire Cat's smile in Alice in Wonderland.

Appellee attempts to salvage its position by contending that the Legislature's action was not entirely for naught, as the statute can be read as allowing testing where the "fault" of the prisoner resulted from "mere negligence." (Appellee's Br. 35.) In the first place, it is difficult to conceive of a circumstance where failure to request testing prior to trial would result from "mere negligence" and not a conscious decision.

More to the point,

nothing in the Legislature's action suggests that it had such a modest objective in mind. Indeed, it is not clear that the Legislature need even have amended the statute to achieve that result, as no court had ever held otherwise. The case the Legislature responded to was Skinner II, and it did 44

so not by tinkering with the language of the provision to ensure that "fault" would exclude cases of "mere negligence" but instead by removing the "nofault" provision from the statute in its entirety. The Legislature could not more clearly have expressed that it is the public policy of this State to allow prisoners who meet the other requirements of the statute to obtain DNA testing regardless of whether they asked for it prior to trial or why they failed to do so. The Solicitor General's adamant disagreement with that policy is no basis for this Court to disregard it.

III.

Public Policy Favors Granting DNA Testing in This Case.

Appellee argues that DNA testing in this case would invade the privacy

of victims and impose prohibitive costs on local prosecutorial resources.

(Appellee's Br. at 36-39.) Neither contention is true, either in the context of Mr. Skinner's case or on a broader scale.

In this case, the nearest relative to the three murder victims is Twila Busby's daughter Lisa. News reports indicate that while she believes Mr. Skinner is guilty, she favors granting the requested DNA testing. See, e.g., Bill Mears, High Court Asked to Give Death Row Inmate Chance to Prove

Innocence,

CNN.com

(Oct.

8,

2010),

http://articles.cnn.com/2010-10-

08/justice/us.scotus.texas.death.penalty_1_twila-busby-dna-tests-deathrow?_s=PM:CRIME (Twila Busby's surviving daughter Lisa "wonders why

45

the district attorney is so reluctant to test the remaining forensic material," and "wants the DNA testing done," if only to "speed up . . . Skinner's date with justice").

Her position is understandable; it would make victims of

crime feel doubly violated if they, after losing a loved one to crime, then had to cope with the uncertainty and public clamor over whether untested DNA evidence might show that the wrong person had been convicted, especially in cases where the death penalty was imposed.

Financial cost is also not a factor here.

From the beginning, Mr.

Skinner has offered to pay for any testing, so no public funds need be expended.24 The only drain on public funds has resulted from the actions of a succession of Gray County District Attorneys who, for more than a decade, have spent tens of thousands of taxpayers' dollars resisting Mr. Skinner's request for testing.

Nor does Appellee's public policy argument hold water in a more global sense. Appellee poses a false choice between "easy access to post-conviction DNA testing," which Appellee contends would impose "steep costs" on victims and prosecutors, and a regime that would shrink nearly to the vanishing point the class of convicted defendants who could obtain such testing. (See,

e.g., Appellee's Br. at 37). But "easy access" to post-conviction testing is not

24

Indeed, one lab has offered to test the DNA material free of charge to any party.

46

at issue.25 The burden imposed by art. 64.03(a)(2)(A) assures that access to testing will not be "easy." And, in any event, the policy choice is not for the Court to make. The Legislature has already struck the balance: Where postconviction DNA testing could not realistically change a jury's view of the evidentiary picture, it should be denied; but where there is a 51% chance that favorable results would leave a jury with reasonable doubt about guilt, and the prisoner has not been unreasonably dilatory in requesting it, the testing should be allowed.

The policy balance struck by the Legislature accurately reflects the attitudes of the vast majority of Texans,26 who are famously tough on crime

Nor does this case involve the "steep costs" on prosecutors that Appellee posits. If prosecutors are influenced to do more testing, it would not be because this Court ordered such testing in Mr. Skinner's particular case, but because that outcome is required in any case where the standards of Chap. 64 have been met. Chap. 64 has been on the books for more than a decade, and, contrary to Appellee's suggestion, there is no evidence that it has forced prosecutors "to test every scrap of DNA evidence prior to . . . trial" (see Appellee's Br. 39 (emphasis in original)). At most, Chap. 64 may have induced prosecutors to test more potentially exculpatory evidence before trial—a salutary effect, to be sure.

25

Although it would make no difference from a strictly legal standpoint if SB 122, the bill that removed the "fault" provision from Chap. 64, had passed by the narrowest of margins, it was, in fact, enacted with broad bipartisan support and virtually no opposition. It was approved 6-0 in the Senate Criminal Justice Committee and adopted by the Senate as a whole 30-1. See Texas Legislature Online, History, Bill SB 122, Legislative Session 82(R), http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=82R&Bill=SB122 26

(last visited Apr. 11, 2012); Senate Journal, Eighty-Second Legislature—Regular Session. Austin, Texas Proceedings, Apr. 6, 2011, at 955, available at http://www.journals.senate.state.tx.us/sjrnl/82r/pdf/82RSJ04-06-F.PDF#page=13. It was approved 5-0 in the House Criminal Jurisprudence Committee and passed the 47

and surely sensitive to victims' privacy and prosecutors' budgets, but who also want assurance that the State is not executing the wrong person. (See Motion for Stay of Execution at 31-32 & n.12, Skinner v. State, No. 76,676 (Tex. Crim. App. Nov. 7, 2011) (listing and describing numerous editorials in Texas newspapers regarding this case)).

In short, the only question for the Court to decide is whether Mr. Skinner has met the requirements of art. 64.03(a)(2). If he has, then it is the public policy of Texas, as expressed by the Legislature through Chap. 64, that he receive the DNA testing he has requested.

entire House 145-4. See House Journal, Eight-Second Legislature, Regular Session, Proceedings, May 20, 2011, at 4364, available at http://www.journals.house.state.tx.us/hjrnl/82r/pdf/82RDAY81FINAL.PDF#page=2.

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