November 12, 2014 - DNA ISSUE by Justice4Hank

DNA  ISSUE

APPELLANT’S OPENING BRIEF  NOVEMBER 12, 2014

No. AP-77,046 PARTIES AND COUNSEL Pursuant to Tex. R. App. P. 38.1(a), we list the parties to the trial courtâ&#x20AC;&#x2122;s order and to this proceeding, and their counsel. (1)

Henry W. Skinner, No. 999143, Polunsky Unit, TDCJ-CID, 3872 FM 350 South, Livingston, Texas 77351, is the appellant in this Court and was the movant in the District Court. He is represented in this Court by Robert C. Owen, Bluhm Legal Clinic, Northwestern University School of Law, 375 East Chicago Ave., Chicago, Illinois 60611-3069; and Douglas G. Robinson, 1440 New York Avenue, N.W., Washington, D.C. 20005. The same attorneys represented Mr. Skinner in the proceedings below.

(2)

The State of Texas, by and through Franklin McDonough, Gray County District Attorney, 205 N. Russell Street, Ste. 413, Pampa, Texas 79065, is the appellee and opposed Mr. Skinnerâ&#x20AC;&#x2122;s motion in the District Court. The State was represented in the proceedings below by attorneys from the Office of the Attorney General: Edward L. Marshall, Katherine D. Hayes, and Georgette P. Oden, Criminal Appeals Division, Office of the Attorney General, P.O. Box 12548, Austin, Texas 78711-2548. Mr. Skinner anticipates that the same attorneys will appear for the State in this appeal.

TABLE OF CONTENTS STATEMENT OF THE CASE .................................................................. 1 STATEMENT REGARDING ORAL ARGUMENT .................................. 3 ISSUES PRESENTED .............................................................................. 4 STATEMENT OF FACTS ......................................................................... 4 I.

The Evidence at Trial ....................................................................... 4 A.

Jurors heard evidence that on the night of the crimes Mr. Skinner was too physically and mentally incapacitated to have killed the three victims. ...................... 6 1.

Eyewitnesses corroborated Mr. Skinner’s impaired condition. ........................................................ 7

The jury also heard expert testimony indicating that Mr. Skinner had lacked the physical and mental capacity to commit the crimes. .......................... 9

The jury was told of certain physical evidence supporting the defense theory that Mr. Skinner was too incapacitated by drugs and alcohol to have committed the murders. ...................................... 11

Jurors heard evidence supporting the inference that Robert Donnell was the real murderer. ............... 13

SUMMARY OF THE ARGUMENT ........................................................ 14 ARGUMENT ........................................................................................... 15 1.

This Court’s review of the convicting court’s ultimate conclusion is de novo. .................................... 15

The Legislature incorporated into art. 64.04 a well-recognized legal standard, “reasonable probability,” with a settled and familiar meaning. ..... 16 ii

The convicting court’s finding rests on a fundamental error regarding the applicable legal standard. ...................................................................... 18

The convicting court also failed to consider how a reasonable lay juror might have viewed the competing evidence. ..................................................... 21

The convicting court’s ultimate finding fails to consider several vital pieces of evidence in the context of the record as a whole, and places undue weight on DNA test results that are completely consistent with the theories presented by the defense at Mr. Skinner’s trial. .......................... 24

(a)

DNA test results concerning the hairs found in Twila Busby’s hands could have bolstered Mr. Skinner’s defense theory of an alternative perpetrator. ...................................... 24

(b)

Mr. Skinner’s hands did not have the blood of any victim on them.......................................... 30

(c)

The blanket from Randy Busby’s bed showed no sign of any blood from Mr. Skinner—despite the fact that according to the State’s theory, Mr. Skinner’s right hand should have been gushing blood from the deep wound he inflicted on his own hand in the act of stabling Randy Busby through that very blanket................................................. 34

(d)

The dishtowel found in a black plastic bag in the living room contained third-party DNA and tested positive for the presence of blood. ................................................................... 36

The cumulative effect of the results of postconviction DNA testing on the strength of the defense theory at trial is substantial. .......................... 40 iii

CONCLUSION ........................................................................................ 44 CERTIFICATE OF SERVICE................................................................. 48

TABLE OF AUTHORITIES FEDERAL CASES

Bouchillon v. Collins, 907 F.3d 589 (5th Cir. 1990)................................ 15 Skinner v. Quarterman, 2007 WL 582808 (N.D. Tex., Feb. 22, 2007) ..... 1 Skinner v. Quarterman, 528 F.3d 336 (5th Cir. 2008) ............................. 1 Skinner v. Quarterman, 576 F.3d 214 (5th Cir. 2009) ............................. 1 Strickland v. Washington, 466 U.S. 668 (1984)................................ 14, 20 Washington v. Strickland, 693 F.3d 1243 (5th Cir. 1982) ...................... 20

STATE CASES

Aviles v. State, 2006 WL 2403308 (Tex. App.– Houston [14th Dist.] 2006) ..................................................................................................... 19

Cox v. State, 389 S.W.3d 817 (Tex. Crim. App. 2012) ............................ 17 Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999) ...................... 25 Ex parte Buck, 418 S.W.3d 98 (Tex. Crim. App. 2013) .......................... 19 Ex parte Chandler, 182 S.W.3d 350 (Tex. Crim. App. 2005) ................. 17 Ex parte Gutierrez, 337 S.W.3d 883 (Tex. Crim. App. 2011) ................. 16 Ex parte Welborn, 785 S.W.2d 391 (Tex. Crim. App. 1990) ................... 44 Frank v. State, 190 S.W.3d 136 (Tex. App.–Houston [1st Dist.] 2005, pet. ref’d) .............................................................................................. 16 Gauthier v. State, 496 S.W.2d 584 (Tex. Crim. App. 1973) ................... 24 Isassi v. State, 330 S.W.3d 633 (Tex. Crim. App. 2010) ......................... 25 Rivera v. State, 89 S.W.3d 55 (Tex. Crim. App. 2002) ..................... 15, 16 v

Skinner v. State, 122 S.W.3d 808 (Tex. Crim. App. 2003) ....................... 2 Skinner v. State, 293 S.W.3d 196 (Tex. Crim. App. 2009) ....................... 2 Skinner v. State, 956 S.W.2d 532 (Tex. Crim. App. 1997) ....................... 1 Skinner v. State, No. AP-76,675 (Tex. Crim. App., June 20, 2012) ......... 2 Smith v. State, 165 S.W.3d 361 (Tex. Crim. App. 2005) ........................ 16 Woodfox v. State, 742 S.W.2d 408 (Tex. Crim. App. 1987) .................... 25

STATE STATUTES Tex. Code Crim. Proc. art. 64.04 ..................................................... passim Tex. Code Crim. Proc., Ch. 64 ................................................................... 1

STATEMENT OF THE CASE Mr. Skinner appeals from the finding of the 31st District Court of Gray County, entered pursuant to Tex. Code Crim. Proc. art. 64.04 (after examining the results of post-conviction DNA testing, convicting court must make a finding “whether, had the results been available during the trial of the offense, it is reasonably probable that the [defendant] would not have been convicted”). In 1995, Mr. Skinner was convicted of capital murder by a Gray County jury and sentenced to death. This Court affirmed. Skinner v.

State, 956 S.W.2d 532 (Tex. Crim. App. 1997). A series of unsuccessful post-conviction challenges to Mr. Skinner’s conviction and sentence followed.1 In July 2011, the convicting court scheduled Mr. Skinner’s execution. In September 2011, Mr. Skinner moved in the convicting court for forensic DNA testing. See Tex. Code Crim. Proc., Ch. 64.2 The motion

See Skinner v. Quarterman, 2007 WL 582808 (N.D. Tex., Feb. 22, 2007); Skinner v. Quarterman, 528 F.3d 336 (5th Cir. 2008); Skinner v. Quarterman, 576 F.3d 214 (5th Cir. 2009). 1

The 2011 proceeding was the third time Mr. Skinner had sought forensic DNA testing under Ch. 64. See Skinner v. State, 122 S.W.3d 808, 811 (Tex. Crim. App. 2003) (affirming denial of Mr. Skinner’s initial motion, filed in September 2001); 2

(cont’d)

was denied, and Mr. Skinner appealed.

This Court stayed Mr.

Skinner’s execution and heard argument after briefing was complete. After the appeal was argued, the State withdrew its opposition to the testing and the parties agreed to conduct the DNA testing Mr. Skinner had sought, as well as additional DNA testing proposed by the State. Accordingly, this Court dismissed Mr. Skinner’s appeal.

Skinner v.

State, No. AP-76,675 (Tex. Crim. App., June 20, 2012) (per curiam) (not designated for publication). In June 2012, the parties filed an agreed order in the convicting court, identifying items that would be submitted for DNA testing to the Texas Department of Public Safety (DPS) laboratory in Lubbock. Record 1-8.3

In July 2012, attorneys for the parties assessed the

evidence at the DPS laboratory for its suitability for DNA testing, and reached a final list of items to be tested.

Testing proceeded, and a

report was issued on October 14, 2012. DX-10. In November 2012, the parties submitted, and the convicting court approved, an agreement ________________________ (cont’d from previous page)

Skinner v. State, 293 S.W.3d 196 (Tex. Crim. App. 2009) (affirming denial of Mr. Skinner’s second motion, filed in July 2007). The Clerk’s Record in this appeal will be cited as “Record” followed by the pertinent page numbers. 3

regarding additional DNA testing. Record 29-33. In February 2013, DPS issued reports summarizing the results of that additional testing. SX-6, DX-11, DX-12.4 In April 2013, the parties reached an agreement, later amended, for mitochondrial DNA (“mtDNA”) testing to be performed by the Bode Technology Group of Lorton, Virginia, see SX-9, which the convicting court authorized. A report on the mitochondrial testing results was issued in August 2013. DX-16. On February 3-4, 2014, the convicting court held an evidentiary hearing concerning the DNA testing results; the parties thereafter submitted proposed findings. On July 15, the convicting court’s order was filed, adopting in

toto the State’s proposed findings. Record 186. Mr. Skinner timely appealed. On October 2, this Court extended to November 12 the time for filing this opening brief. STATEMENT REGARDING ORAL ARGUMENT Mr. Skinner respectfully requests the opportunity for his counsel to present argument.

Because the Court must grapple with an

At the evidentiary hearing in the convicting court, a number of exhibits were submitted by both parties (i.e., the same exhibit was offered as both a State’s Exhibit and a Defense Exhibit). Where that is the case, this brief cites the defense exhibit. 4

extensive factual record, oral argument would aid the Court in reaching its decision. ISSUES PRESENTED 1. Did the convicting court apply the proper legal standard under Tex. Code Crim. Proc. art. 64.04 when it found that “had the results [of post-conviction DNA testing] been available during the trial of the offense, it is reasonably probable that [Mr.] Skinner would nevertheless have been convicted”? Record 186. 2.

If the results of the post-conviction DNA testing had been

available during Mr. Skinner’s 1995 capital murder trial, is it reasonably probable that Mr. Skinner would not have been convicted? STATEMENT OF FACTS I.

The Evidence at Trial5 Mr. Skinner was convicted of murdering his girlfriend, Twila

Busby, and her adult sons, 22-year-old Elwin Caler and 20-year-old Randy Busby, at the home they all shared in Pampa, Texas.

The

murders occurred on New Year’s Eve of 1993.

We cite the Reporter’s Record of testimony at Mr. Skinner’s trial as “Tr.,” with volume and page number. 5

There were no surviving eyewitnesses to the murders.

The

principal evidence against Mr. Skinner at trial was that he was present in the house when the murders occurred (as indicated by the presence of the blood of two of the victims on his clothes, Tr. 28:1109),6 managed to walk to neighbor Andrea Reed’s house shortly after the murders, and, while there, told Reed that he might have “kicked” Twila Busby to death (a method of attack not supported by any of the physical evidence). Tr. 26:501. Jurors also heard that when police arrested Mr. Skinner at Ms. Reed’s house, and told him that he was being arrested on some prior outstanding warrants, he responded, “Is that all?” Tr. 25:361. At trial, the State also introduced a redacted videotape of an interview of Mr. Skinner by Sheriff’s Department personnel.

Tr.

26:564-70. In that interview, Mr. Skinner denied any recollection of having committed the murders, but admitted that he had been heavily

A DNA analyst called by the State testified that DNA collected from blood stains on the shirt Mr. Skinner wore that evening was consistent with that of Twila Busby and Mr. Skinner himself, Tr. 28:1109, and that DNA collected from blood stains on his pants was consistent with that of Ms. Busby and Elwin Caler. Tr. 28:1109-10. She also testified that blood on the blanket from Randy Busby’s bed came from Randy, a hair on Randy’s body was likewise his, and a hair found on Randy’s blanket belonged to Elwin Caler. Tr. 28:1135, 1137. 6

intoxicated that evening. He claimed that he could often accomplish feats requiring physical strength and agility while in such a condition, even though he would not remember them later. Trial Ex. SX 59-A. From the defense, jurors heard two different reasons for skepticism about the State’s circumstantial proof. First, toxicological evidence indicated that Mr. Skinner had been too incapacitated by alcohol and codeine to have committed the murders, and other testimony suggested that he lacked the hand strength to have inflicted Twila Busby’s strangulation injuries. Second, other evidence raised the possibility that Ms. Busby’s uncle, Robert Donnell, might have been the real killer. A.

Jurors heard evidence that on the night of the crimes Mr. Skinner was too physically and mentally incapacitated to have killed the three victims.

The victims’ injuries show that whoever murdered them must have possessed considerable presence of mind, strength, balance, and coordination. Twila Busby was first manually strangled so forcefully that her larynx and the hyoid bone on the right side of her neck were broken, Tr. 28:1186-87, and then struck with an ax or pick handle fourteen times, so hard that fragments of her unusually thick skull

were driven into her brain.

Tr. 28:1171-72, 28:1181-82, 28:1186,

28:1189, 28:1209. While attacking Ms. Busby, the perpetrator also had to contend with the presence of her six-foot, six-inch, 225-pound son, Elwin Caler, who, police blood spatter analysis showed, was in the immediate vicinity of his mother as she was being beaten. Tr. 24:21617, 28:1211; Trial Ex. SX 48 at 2. Somehow, the murderer was able to finish his attack on Ms. Busby, change weapons, and stab Caler several times before Caler could fend off the attack or flee. Tr. 28:1193-95. The killer then methodically went to the bedroom shared by the two sons and stabbed to death Randy Busby, who was lying face down in the top bunk of his bed.

Tr. 24:119, 24:134.

The jury heard evidence,

summarized below, suggesting that Mr. Skinner was too incapacitated by the massive amounts of alcohol and codeine he had consumed that evening to possess the physical or mental agility needed to commit these murders. 1.

Eyewitnesses corroborated Mr. Skinnerâ&#x20AC;&#x2122;s impaired condition.

The last person to see Ms. Busby and Mr. Skinner before the murders was Howard Mitchell, an acquaintance who was hosting a New Yearâ&#x20AC;&#x2122;s Eve party that evening. After talking to both Ms. Busby and Mr. 7

Skinner on the phone around 9:30 p.m., Mitchell drove to the Busby residence at about 10:15 p.m., intending to give them a ride to his party. Tr. 26:575-76.

When Mitchell got there, he found Mr. Skinner

unconscious on the couch, with a vodka bottle near him on the floor. Tr. 26:575-77, 26:605. Mitchell tried to wake Mr. Skinner by jerking his arm forcefully and shouting at him, but he remained unconscious and “kind of comatose.”

Tr. 26:606-08, 26:611.

After waiting fifteen

minutes, during which time Mitchell “never s[aw] him move at all,” Mitchell left Mr. Skinner on the couch and took only Ms. Busby to the party. Tr. 26:611. Mitchell testified that it would have been impossible for anyone in Mr. Skinner’s condition to have recovered sufficiently to commit three murders only ninety minutes later. Tr. 26:608, 26:622. The other person who observed Mr. Skinner’s condition around the time of the murders was Andrea Reed, to whose nearby house Mr. Skinner somehow managed to stagger within minutes after the murders occurred. Ms. Reed testified to some facts that supported the State’s theory of the case.7

Even so, Ms. Reed also acknowledged on cross

As noted, Ms. Reed testified that at one point Mr. Skinner told her he thought he might have “kicked” Ms. Busby to death. Tr. 26:501. She also testified that he performed acts that seemingly defied his severe level of intoxication. For example, 7

(cont’d)

examination that Mr. Skinner was “f***** up” from both alcohol and drugs, Tr. 26:515, talked about things that she knew had never happened, Tr. 26:522, at times seemed unaware of where he was or who he was talking to (including sometimes calling Ms. Reed “Twila”), Tr. 26:522, 26:526, and related numerous inconsistent and largely incoherent stories about what had happened earlier that evening, Tr. 26:494, 26:500, including that he had been stabbed several times and “gut shot,” Tr. 26:491, neither of which was borne out except for the knife wound to his right hand. 2.

The jury also heard expert testimony indicating that Mr. Skinner had lacked the physical and mental capacity to commit the crimes.

Dr. William Lowry, a toxicologist experienced in the effects of alcohol and drugs on human performance,8 testified at trial that Mr. Skinner was too impaired by the alcohol and codeine in his system to ________________________ (cont’d from previous page)

Ms. Reed stated that after she warned Mr. Skinner that she would call the police if he did not leave, he nevertheless “somehow” got into her house. Tr. 26:491. Once inside, she claimed, he was able to remove his shirt and lay it over the back of a chair, Tr. 26:493, heat and bend sewing needles to suture the cut in his hand, Tr. 26:494, and go to the bathroom on his own. Tr. 26:496. She also testified that he threatened to kill her if she called the police. Tr. 26:497. Dr. Lowry came from a law enforcement background. A former FBI Special Agent, Dr. Lowry had worked both in the Bureau’s central crime laboratory in Washington, D.C. and in its Birmingham, Alabama field office. Tr. 29:1345. 8

have committed the murders. Blood was drawn from Mr. Skinner after his arrest.

Dr. Lowry’s undisputed analysis of that blood sample

showed that as of midnight, Mr. Skinner’s blood alcohol level was .21 percent—almost three times the drunk driving standard in Texas—and his blood codeine level was .4 mg/l—two and a half times the normal therapeutic dose.

Tr. 29:1356-58, 29:1369, 30:1464-65.

Dr. Lowry

testified that combining these two substances greatly increases the potency of each. Tr. 29:1354, 29:1360-61, 30:1462-63. In Dr. Lowry’s opinion, consuming such quantities of alcohol and codeine would have left Mr. Skinner around midnight in a “stuporous” condition at best— such that it would have required all of his physical and mental agility just to stand and move about—and therefore he could not have caused the deaths of the three victims. While the State had some success in getting Dr. Lowry to admit that a habitual abuser of alcohol and drugs would have more tolerance for those substances and that he (Dr. Lowry) was surprised by some of the things Ms. Reed said Mr. Skinner had done when he got to her house, it offered no expert witness of its own to rebut Dr. Lowry’s conclusions.

Joe Tarpley, an occupational therapist specializing in hand injuries, testified that six months before the murder, Mr. Skinner had sustained a significant injury to his right hand. As a result of that injury, Mr. Skinner’s grasping strength in his right hand was half that of his left hand and less than half of what would be expected of a normal right-handed person. Tr. 29:1317-18. Mr. Tarpley opined that this disability likely would have prevented Mr. Skinner from grasping Twila Busby’s throat with enough force to break her larynx and hyoid bone, even if he had been sober. Tr. 29:1316, 29:1318-19. 3.

The jury was told of certain physical evidence supporting the defense theory that Mr. Skinner was too incapacitated by drugs and alcohol to have committed the murders.

The defense’s contention that Mr. Skinner was too impaired to have committed the murders was supported by the fact that Mr. Skinner’s bloody handprint was found close to the floor on the door frame in Randy and Elwin’s bedroom.

Tr. 27:792; 30:1608.

That

physical evidence from the crime scene gave a reasonable juror a basis to credit Dr. Lowry’s testimony that, while Mr. Skinner was somehow able to move about the Busby house and eventually make his way to

Andrea Reed’s house, he had to have been literally falling-down drunk when he did so. In an attempt to counter the natural and commonsense inference that could be drawn from location of that handprint, the district attorney waited until the rebuttal portion of his closing argument to speculate that Elwin Caler had knocked Mr. Skinner down when Mr. Skinner went to attack him: The evidence points to a man that went to this back bedroom back here and found those boys on that bunk bed asleep and was so drunk and so full of himself and his abuse history that this young man [Caler], I submit to you, a logical deduction of the evidence shows, became aware of what was going on up here and that’s how Henry Skinner’s palm print got 18 inches above the floor when Elwin Caler came out of that bottom bunk. Tr. at 30:1607-08.

But that theory was also inconsistent with the

physical evidence. As noted, blood spatter analysis done by the police prior to trial showed that Elwin Caler was in the same room with his mother when she was being beaten. Tr. 24:216-17, 28:1211; Trial Ex. SX 48 at 2.) From this evidence, a reasonable juror could have inferred not only that the killer had to have dealt with both Caler and Twila Busby in the same room at the same time, taxing further the killer’s motor and mental skills, but that Caler could not later have been 12

“c[oming] out of that bottom bunk” in the sons’ bedroom to knock down Mr. Skinner. And if there was no struggle with Caler to account for the presence of Mr. Skinner’s handprint so near the floor on the door frame in the sons’ bedroom, a reasonable juror could have viewed the handprint as bolstering Dr. Lowry’s opinion about Mr. Skinner’s severe incapacitation. Thus, the physical evidence presented at trial gave a reasonable juror a basis to question whether Mr. Skinner could have been the murderer. 4.

Jurors heard evidence supporting the inference that Robert Donnell was the real murderer.

The jury also heard evidence that Twila Busby’s uncle, Robert Donnell, might well have been the real murderer—a possibility the prosecution neither investigated nor offered evidence to disprove. The defense presented evidence that Donnell was a hot-tempered ex-con who had sexually molested a girl, grabbed a pregnant woman by the throat, and kept a knife in his car.

Tr. 26:615-18, 26:619; 29:1281,

29:1296, 29:1300-01. Donnell was present, drunk, at Mitchell’s New Year’s Eve party. Tr. 29:1281. During the short time Twila Busby was there, Donnell stalked her, making crude and unwelcome sexual remarks.

Tr. 26:619-20, 29:1277, 29:1281-82. 13

Mitchell “sensed that

[Donnell] would be a danger,” and when Mitchell agreed to take Twila home around 11:15 p.m., he noticed that she was “fidgety and worried.” Tr. 26:618, 26:629. When Mitchell returned to his party, Donnell was no longer there.

Tr. 26:629; 29:1289.

Mitchell later told law

enforcement that he believed that Donnell could have murdered Twila. Tr. 26:623. SUMMARY OF THE ARGUMENT The convicting court found that “had the [DNA testing] results been available during the trial of the offense, it is reasonably probable that [Mr.] Skinner would nevertheless have been convicted.” Record 186. That finding materially misstates the applicable legal standard set out in Tex. Code Crim. Proc. art. 64.04 and warrants a remand to give the convicting court an opportunity to reconsider its decision based on the proper standard. Alternatively, this Court should itself properly apply the definition of “reasonable probability,” as reflected in the decisions of this Court, to the entire evidentiary record of this case. Application of that standard leads ineluctably to one conclusion: if the results of the most recent DNA testing had been available at the time of trial, it is

reasonably probable that at least one juror would have retained a reasonable doubt about Mr. Skinner’s guilt.

As a consequence, this

Court should reverse the convicting court’s finding. ARGUMENT 1.

This Court’s review of the convicting court’s ultimate conclusion is de novo.

A convicting court’s ultimate ruling under art. 64.04 is reviewed

de novo. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002); see also, e.g., Frank v. State, 190 S.W.3d 136, 138 (Tex. App. –Houston [1st Dist.] 2005, pet. ref’d). The reviewing court examines the entire record to determine whether the appellant established, by a preponderance of the evidence, a reasonable probability that he would not have been convicted if the post-conviction DNA test results had been available at trial. Smith v. State, 165 S.W.3d 361, 365 (Tex. Crim. App. 2005)). Deference is accorded to the convicting court’s determination of issues of historical fact, as well as to its resolution of any mixed questions of fact and law that turn on assessments of credibility and demeanor, but all other application-of-law-to-fact issues are reviewed de novo. Rivera, 89 S.W.3d at 59; see also Ex parte Gutierrez, 337 S.W.3d 883, 894 n.34 (Tex. Crim. App. 2011) (citing Rivera).

The Legislature incorporated into art. 64.04 a wellrecognized legal standard, “reasonable probability,” with a settled and familiar meaning.

In enacting art. 64.04, the Legislature chose to impose the standard of “reasonable probability,” one well-known in the law; i.e., the statute required the convicting court to determine whether it is “reasonably probable” that Mr. Skinner “would not have been convicted” had the DNA test results been available when this case was tried in 1995. This Court has defined a reasonable probability as “a probability sufficient to undermine confidence in the outcome.” Cox v. State, 389 S.W.3d 817, 819 (Tex. Crim. App. 2012) (quoting Strickland v.

Washington, 466 U.S. 668, 694 (1984)); Ex parte Chandler, 182 S.W.3d 350, 353 (Tex. Crim. App. 2005) (same).

But that qualitative

description is incomplete without the equally important observation that a reasonable probability is less than a preponderance of the

evidence.

The Supreme Court’s discussion of the issue in Strickland,

cited by this Court in Cox, supra, makes that conclusion unavoidable. In Strickland, the Supreme Court was urged to adopt a prejudice standard that would require reversal for ineffective assistance of counsel only if “counsel’s deficient conduct more likely than not altered

the outcome in the case.” Strickland, 466 U.S. at 693. The Supreme Court expressly declined to adopt this test, because “[t]he result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.” Id. at 694.

Accordingly, the Court concluded that “the appropriate

standard ... should be somewhat lower” than a preponderance of the evidence, and so embraced the “reasonable probability” standard for this purpose. Id.; see also, e.g., Bouchillon v. Collins, 907 F.3d 589, 595 (5th Cir. 1990) (same); Aviles v. State, 2006 WL 2403308 (Tex. App.– Houston [14th Dist.] 2006) at *1 (a “reasonable probability” may be shown “with less than a preponderance of the evidence”); Ex parte

Buck, 418 S.W.3d 98, 110 (Tex. Crim. App. 2013) (Alcala, J., dissenting on other grounds) (noting that this Court “has previously recognized that the ‘reasonable probability’ standard of proof is lower than the preponderance standard”) (citation omitted). Moreover, the Legislature made clear in art. 64.04 that the question is not whether the defendant can, with the newly available DNA results, demonstrate his actual innocence of the crime for which

he was convicted. Instead, the issue is whether, if the DNA results “had ... been available during the trial of the offense,” it is reasonably likely that the defendant “would not have been convicted.” (emphasis added).

Id.

By using this language, the Legislature has

instructed courts weighing such a “reasonable probability” to focus on whether, in light of the newly available DNA results and the other evidence lawfully admitted at trial, a reasonable juror might have harbored reasonable doubt about the defendant’s guilt, and thus “would not have ... convicted” him. The statute, as written, requires a court to ask not whether the newly available DNA results necessarily compel the conclusion that the defendant is innocent of the crime, but simply whether they would have raised reasonable doubt about his guilt. And it requires that the convicting court make a finding favorable to the defendant even if his showing of that degree of doubt falls below a preponderance of the evidence, as long as his showing undermines confidence in the verdict. 3.

The convicting court’s finding rests on a fundamental error regarding the applicable legal standard.

Here, the convicting court found that “had the [post-conviction DNA testing] results been available during the trial of the offense, it is 18

reasonably probable that [Mr.] Skinner would nevertheless have been convicted.”

Record 186 (emphasis supplied).9

As the foregoing

discussion makes plain, that is not the question art. 64.04 asks. Instead, that provision requires a convicting court, after examining the results of forensic DNA testing, to determine “whether, had the results been available during the trial of the offense, it is reasonably probable that the [defendant] would not have been convicted” (emphasis added). This difference—between the inquiry mandated by the statute, and the one posed and answered by the convicting court in Mr. Skinner’s case—is not merely semantic. As set out above, the standard of “reasonable probability” is understood to describe a likelihood that is

less than a preponderance of the evidence. In other words, the district court flipped the standard squarely on its head, so as to place on Mr. Skinner the burden of proving not just a reasonable probability that he would not have been convicted, but also the absence of any reasonable probability that he would have been convicted.” That is exactly the The convicting court’s order is not the only place the standard is improperly stated. In the State’s proposed findings, which were adopted by the district court in their entirety, the same incorrect statement of the art. 64.04 standard appears multiple times. E.g., Record 154 (introductory paragraph); id. at 163 (¶ 39); id. at 175 (¶ 67); id. at 177 (¶76). 9

opposite of the safeguard the Texas Legislature introduced with art. 64.04.

The Legislature intended that the defendant prevail if he

showed a reasonable probability (again, a likelihood that does not even rise to the level of a preponderance of the evidence) that, in light of both the trial evidence and the DNA testing results, at least one juror would have harbored a reasonable doubt about his guilt. The convicting court treated even a â&#x20AC;&#x153;reasonable probabilityâ&#x20AC;? of conviction as sufficient to foreclose a favorable ruling for Mr. Skinner. In so doing, it placed a burden on Mr. Skinner to produce evidence strong enough to remove all doubt that he would have been convicted had the post-conviction DNA testing results been heard by the trial jury. In other words, the convicting court read the statute as requiring the defendant in an art. 64.04 hearing to prove his innocence by clear and convincing evidence. That is exactly contrary to the text of the statute and the Legislatureâ&#x20AC;&#x2122;s evident intent in enacting it.

The convicting court also failed to consider how a reasonable lay juror might have viewed the competing evidence.

The convicting court also failed to view the competing evidence through the lens of a lay juror. Instead, the court’s findings are replete with instances in which it relegates to itself such jury functions as how much credibility to accord the witnesses, e.g., Record 170 (¶ 63.C) (“The Court finds credible the explanation provided by DPS forensic scientist Brent Hester …“); id. at 173 (¶ 65,C(2)) (“The Court credits Bundy’s explanation …“); id. at 175 (¶ 69) (“The Court … finds that the State’s experts were more credible that [sic] Skinner’s expert.”), and how much weight to assign to the evidence. E.g., id. at 174 (¶ 66.C(5)) (“… the MtDNA profiles on 3 hairs do not, standing alone, convey any meaningful information about Donnell’s potential involvement in the offense.”); id. at 183 (¶ 102) (The Court finds that the DNA testing results from both doorknobs and back door do not help Skinner … .”). Nowhere in its findings does the convicting court mention, much less consider, how the evidence could look to a reasonable juror. As in other contexts involving informed speculation about the potential effect of evidence on a jury, the appropriate approach is to set

aside the question of whether the Court itself credits the evidence and ask instead whether a reasonable juror could do so.

This is the

approach taken by this Court in, e.g., the context of reviewing denials of requests for jury instructions on defensive issues.

See Gauthier v.

State, 496 S.W.2d 584, 585 (Tex. Crim. App. 1973) (noting that a “defendant has a right to an affirmative instruction on every defensive issue raised by the evidence whether the evidence is produced by the state or by the defense, whether it is strong or feeble, whether it is unimpeached or contradicted, or whether it is conflicting”) (citation omitted). As the Court acknowledged in Gauthier, “the truth of the testimony is for the jury to determine”; as a consequence, such instructions should be given “even if the trial court is of the opinion that the testimony [supporting the request] is not entitled to credence.” Id. This rule is “designed to insure that the jury, not the judge, will decide the relative credibility of the evidence,” and to avoid having the court “substitute[] [its] judgment on the weight of the evidence for that of the jury.”

Woodfox v. State, 742 S.W.2d 408, 409-10 (Tex. Crim. App.

1987).10 10

This is also the rule the Court applies when reviewing a verdict for sufficiency of

(cont’d)

The same important values are at stake in the present context; because the Legislature couched the inquiry in terms of whether the jury would still have unanimously convicted the defendant in the face of exculpatory DNA test results, the reviewing court’s role in assessing ultimate credibility determinations and weighing evidence is not undertaken from the standpoint of a “thirteenth juror,” see Dewberry, 4 S.W.3d at 740, but from the more detached perspective of how a reasonable juror could have made such assessments.11

________________________ (cont’d from previous page)

the evidence. See, e.g., Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) (it is up to the jury, not the Court, to “fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts”) (citation and internal quotation marks omitted); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) (the Court’s role is “not . . . [to] substitute [its] judgment for that of the fact-finder”). Id. A useful analogue appears in the Supreme Court’s application of the “reasonable probability” prejudice standard in Strickland v. Washington, 466 U.S. 668 (1984). At a post-conviction evidentiary hearing, the prosecution called as a witness the state-court judge who had presided at Washington’s trial. Id. at 678. The trial court judge (who, under Florida law, was the ultimate sentencer in a capital case) testified that the never-before-presented mitigating evidence that was the focus of Washington’s ineffective assistance claim “would not have altered his determination that Washington deserved the death penalty.” Washington v. Strickland, 693 F.3d 1243, 1249 (5th Cir. 1982) (en banc). The Supreme Court, however, expressly declared that the trial judge’s testimony about his subjective response to the evidence was “irrelevant to the prejudice inquiry.” Id. at 700. That holding compels the conclusion that a reviewing court examining whether some changed circumstance is likely to have altered the outcome at trial should not rely on its own subjective view of the weight of the evidence, but should ask what view a reasonable juror might take. 11

The cumulative impact of four DNA test results in particular show the profound error of the convicting court’s finding.

Those tests,

considered in the full context of the evidence presented at trial, would have led at least one juror to harbor reasonable doubt as to whether Mr. Skinner committed the murders for which he was convicted. We discuss these results in turn. (a)

DNA test results concerning the hairs found in Twila Busby’s hands could have bolstered Mr. Skinner’s defense theory of an alternative perpetrator.

Post-conviction DNA testing was performed on multiple hairs found in victim Twila Busby’s hands. These hairs possessed evidentiary significance because of the possibility that they were deposited in her hands during the course of a struggle with her attacker. Several of those hairs were initially determined by Jon Lan Bundy, a trace analyst at the DPS lab in Lubbock, to be visually similar to known hair samples of Ms. Busby, see DX 13; DX 14, and subsequent STR testing by DPS confirmed that Ms. Busby was the likely source of most of those hairs. 24

See DX 10 at 3-4. Four hairs, however, were determined by Mr. Bundy to be “visually dissimilar” to the known hair samples of Ms. Busby and the other two victims. See DX 13 (items I.6d, I.6e3, I.7c, and I.9c2). Two of those hairs were subjected to STR testing but no results were obtained; the other two hairs were not submitted for STR testing because they lacked root bulbs, and therefore had no biological material that could be analyzed for DNA by the STR method. Because no results could be obtained on these four “visually dissimilar” hairs by employing the STR methodology, the parties agreed to submit them to Bode Technologies (“Bode”), a private lab, for mtDNA testing. That methodology can produce meaningful DNA results from the mitochondria within the shaft of a human hair, even if no root bulb is present. But, because humans inherit the entire mitochondrial DNA profile of their mothers, and their mothers only, see DX 29, mtDNA testing is unable to distinguish between two relatives who received their mitochondria from the same maternal source. Hearing Tr. 2:40-43 (Heinig). Bode reported that the mitochondrial DNA of one of the hairs was consistent with the known sample of Mr. Skinner (and all of his maternal relatives) and that the mitochondria of the other three hairs

was consistent with the known sample of Twila Busby (and all of her maternal relatives). DX 16 at 2-3. Had these test results been available at the time of trial, they would have provided scientific evidence to bolster the defense theory that the real killer was Robert Donnell. Donnell was the brother of Ms. Busby’s mother and therefore had inherited from the same maternal source (his mother, who was also Ms. Busby’s maternal grandmother) the same mtDNA profile as Ms. Busby. DX 29; SX 23; Hearing Tr. 2:48 (Heinig). The presence of three hairs in Ms. Busby’s hands that a DPS lab analyst found were visually dissimilar to that of any of the residents of the house, but which also matched the mitochondrial DNA of the person who had stalked and frightened Ms. Busby only an hour before she was murdered, would certainly give a reasonable juror basis to harbor reasonable doubt about Mr. Skinner’s guilt, especially when viewed in the context of the other evidence—uncontested by the prosecution—of Mr. Skinner’s contemporaneous lack of physical and mental capacity to commit the murders and Donnell’s behavior on the night of the murders.

The convicting court uncritically signed off on the State’s argument that even though, in the laboratory, Mr. Bundy found the hairs in question to be “visually dissimilar” to the known samples from the victims, no weight whatsoever should be assigned to this original finding because Mr. Bundy testified at the art. 64.04 hearing that there was still some chance that the hairs originated with one of the victims. Record 172-73 (¶ 65).12

While that is a possibility, it is of greater

significance—and went unacknowledged by the convicting court—that at the hearing, Mr. Bundy never retreated from the conclusion in his laboratory report that the hairs in question were visually dissimilar to the known samples from the victims.13 A reasonable juror would attach

According to Mr. Bundy, even people who appear at first glance to have long, dark hair are nevertheless likely to have, somewhere on their heads, hairs that are shorter in length and lighter in color, and it is possible that such hairs from the victims’ heads ended up in Ms. Busby’s hands. See Hearing Tr. 2:213-14 (Bundy). 12

Mr. Bundy had approximately 20 hairs from Elwin Caler, 25 hairs from Randolph Busby, and 25 hairs from Twila Busby with which to make his comparison. See DX 14 at 1. While this was a smaller number of known samples than the 50 that Mr. Bundy said he normally preferred, see Hearing Tr. 2:213 (Bundy), his laboratory notes describe some of those known hairs as relatively short and light in color, just like the three questioned hairs tested by Bode. See DX 14 at 1. Thus, Mr. Bundy’s characterization of the questioned hairs as “visually dissimilar” to the victims’ known samples cannot be a product of his only having had long, dark hairs to compare against. Yet, despite these superficial similarities between some of the known hairs and the questioned hairs, when he examined the latter more closely under magnification, Mr. Bundy found reason to report in his findings that they were “visually dissimilar” from the known hair samples. Nowhere in his testimony 13

(cont’d)

weight to the fact that when Mr. Bundy was called upon in the

laboratory to provide his professional opinion about the questioned hairs, he declared them, without qualification, to be visually dissimilar. This opinion would have given a reasonable juror more than adequate reason to doubt that the hairs came from any of the victims. The convicting court also considered it dispositive that the three victims had other relatives in the same maternal line, such as Ms. Busby’s mother and sister, whose hair could have been deposited innocently on the carpet during earlier visits to the home. See, e.g., Record 174 (¶ 66.C(3)-(4)).

But the only evidence concerning the

frequency with which any of these other relatives visited the house prior to the murders—evidence ignored by the convicting court in its findings—was the testimony on that subject given by Ms. Busby’s mother at a pretrial hearing. At that proceeding, Ms. Busby’s mother testified that she entered the house “very few” times in the four months that Mr. Skinner lived there, and not at all for at least two weeks before the murders.

DX 42 at 26-27.

The jury heard no evidence about

________________________ (cont’d from previous page)

at the hearing did Mr. Bundy disavow that key conclusion or suggest that he had changed his mind on that score. The convicting court failed to accord appropriate significance to these important facts.

whether Ms. Busby’s sister, or any of the other maternal relatives listed on the Busby maternal family tree, SX 23, ever visited the home at all. Thus, while there was always the possibility that other relatives could have left the suspect hairs, there was more than ample room in the evidence for a reasonable juror to reject that explanation. The convicting court’s willingness to accept uncritically the State’s theories regarding the three hairs reveals not only the court’s failure to view the evidence through the eyes of reasonable jurors but also a fundamental misunderstanding of the standard it was supposed to be applying. At one point in its analysis of the hairs, the convicting court stated that “[n]o evidence was presented to establish that the hairs did not come from the victims.” Record 173 (¶ 65.D); see also id. at 175 (¶ 66.C(6)) (noting the absence of evidence conclusively establishing that the three hairs were deposited during the commission of the crime or came from someone other than one of the victims). These references make it clear that the convicting court improperly believed the burden was on Mr. Skinner to rule out all possible alternative explanations, such that the evidence conclusively establishes his innocence.

(b)

Mr. Skinner’s hands did not have the blood of any victim on them.

The exit at the rear of the Busby house was through a small vestibule that had both an inner and outer door.

See DX 26.

Bloodstains from one of those back doors, and from the knobs on both doors, were submitted to the DPS lab for STR DNA testing. The partial profiles found for each stain were consistent with Mr. Skinner’s DNA and did not indicate a mixture. DX 10 at 6-7 (items III.13, III.14 and III.17). Twila Busby, Elwin Caler and Randy Busby were all excluded as contributors to those stains. Id. The trial evidence shows that Mr. Caler, who was wearing only undershorts, was stabbed at least twice in his torso. One stab wound, to his anterior abdomen, produced such a large opening that his small bowel protruded through his skin. Tr. 28:1192. A second wound was to his chest under his left arm. At that location, the knife penetrated as much as seven inches, piercing Mr. Caler’s lung and heart and nearly exiting through his back. Id. at 28:1193. The bloody knife found on the front porch of the house had a six-inch blade. See DX 27. To inflict that injury, therefore, the knife would have to have penetrated Mr. Caler’s body beyond the base of the blade, bringing the assailant’s hand into 30

direct contact with Mr. Caler’s skin. Furthermore, the “v” shape of the wound indicated to the medical examiner that the knife was twisted after it penetrated Mr. Caler’s chest cavity, which she found full of blood. Tr. 28:1193. Randy Busby was stabbed to death while lying face down on the top bunk in the sons’ bedroom.

See DX 9.

The medical examiner

testified at trial that Mr. Busby was stabbed three times. Two of the wounds did not penetrate into his chest cavity, Tr. 28:1197, but the third, and fatal, wound went through Mr. Busby’s rib cage and a lung and cut the lower tip of his heart. Id. at 28:1198. The nature of the wound suggested that the perpetrator again twisted the knife after it penetrated Mr. Busby’s body.

Id. at 1197.

The medical examiner

testified that the bloody knife found on the porch was consistent with both Mr. Caler’s and Mr. Busby’s injuries. Id. at 28:1196, 1199. Given the nature of the fatal stab wounds, each of which involved full penetration of the six-inch knife blade in an area of the body that would have bled profusely, it would be logical for a reasonable juror to expect the perpetrator to have had the blood of his victims on the hand with which he held the knife. The fact that no blood from any of the

victims was found mixed with Mr. Skinner’s on either of the door knobs leading out the back of the house would, at a minimum, have provided the defense with a basis in the physical evidence to argue to the jury that Mr. Skinner was not the person who killed them. Here, again, the convicting court’s uncritical acceptance of some of the prosecution’s theories regarding the post-conviction DNA testing results, in combination with its application of an incorrect legal standard, operated to Mr. Skinner’s detriment. One such speculation offered by the State at the hearing was that Mr. Skinner’s own blood, flowing profusely from his injured hand, might have washed away the victims’ blood from his hands by the time Mr. Skinner reached the back doors. See, e.g., Hearing Tr. 3:134 (Hester). But, even assuming such a mechanism is physically plausible, any such blood (containing a mixture of Mr. Skinner’s blood and the blood of one or more victims) would not have just vanished into thin air, but would have dripped or fallen onto some other surface.

And one would expect to find that

castoff or “washed off” blood—again, containing the victims’ blood mixed with Mr. Skinner’s—in at least one of the many places Mr. Skinner’s blood was found in the sons’ bedroom. Yet in none of those instances

was such a mixture found. See, e.g., DX 10 at 6-11. In fact, the only places Elwin Caler’s blood was found mixed with Randy Busby’s— besides on the blade of the knife—was in the two stains found on the carpet in that bedroom. DX 10 at 10. Mr. Skinner was excluded from both of those two carpet stains. Id. These stains apparently were made when blood dripped from the knife to the floor after both boys had been stabbed. If Mr. Skinner were the person who was wielding the knife at that moment, a juror would reasonably expect the blood from his hand—which, according to the State’s theory of the murders, should have been freely flowing with blood from the cut he had just sustained in the course of stabbing Randy Busby—to be mixed with the two sons’ blood on the carpet (just as it was mixed with their blood on the blade of the knife, see DX 10 at 11-12; DX 11 at 2-3) or that their blood from the now-dripping knife blade would have migrated to Mr. Skinner’s hand and thus would have been found mixed with his blood on the door knobs leading out the back of the house. But the DNA testing found neither to be the case.14

The only response the convicting court offered to this argument was this conclusory statement in the last paragraph of its findings: 14

(cont’d)

(c)

The prosecution theorized at trial that Mr. Skinner sustained the injury to his right hand on the night of the murders when he inflicted the stab wound that struck Randy Busby’s scapula, or shoulder blade.

See Tr. 28:1203.

At closing argument, District Attorney Mann

demonstrated to the jury how the initial stab that hit Randy Busby’s shoulder blade resulted in the cut to Mr. Skinner’s hand: Note this particular wound right here (indicating). See where it is in relation to the shoulder blade. What happens when you jab a knife in there. And you hit that shoulder blade, not expecting it to be stopped.

________________________ (cont’d from previous page)

The Court finds that the DNA testing results from both doorknobs and back door do not help Skinner because they are consistent with the State’s evidence at trial showing that Skinner exited Twila’s house through the back door on his way to Andrea Reed’s home. See Record 183 (¶ 102). But it was never disputed, either at trial or at the art. 64.04 hearing, that Mr. Skinner exited the house through the back doors. That much was established at trial by evidence that his palm print was on one of the doorknobs. The point the convicting court completely missed is that when Mr. Skinner did exit the house, he left only his own blood, and not that of any of the victims, on the back doors.

What happens to your hand and what happens to the knife if you are right-handed. That’s how you get cut. Three wounds, one on the shoulder blade, two others and then— two others, one of which is the big one, is fatal.

Id. at 30:1557. If Mr. Skinner had attacked Randy Busby in the manner hypothesized by Mr. Mann, seriously cutting his own hand in the process, Mr. Skinner’s blood should be present on the surface of the blanket through which the knife was stabbed into Randy Busby’s shoulder blade.

Mr. Skinner’s hand wound bled profusely and

ultimately required eight stitches to close. DX 28 at MEDS-40. If Mr. Skinner were the killer and his wound did not bleed on the blanket upon the initial blow—when, according to Mr. Mann, his hand was first cut—it would be reasonable to infer that it would have bled on the blanket when he brought the knife down twice more. Yet DNA testing on the blanket that covered Randy Busby’s body showed no blood whatsoever from Mr. Skinner. Three blood stains on that blanket were subjected to STR testing. All of them yielded only the full DNA profile of Randy Busby. DX 10 at 8. Indeed, Brent Hester, the DPS analyst who conducted the testing, was so confident of his test results on the blanket that he labeled them as having a “reasonable degree of 35

scientific certainty,” meaning that they excluded every other person in

the world, including, of course, Mr. Skinner.

Hearing Tr. 3:190

(Hester). Thus, the absence of Mr. Skinner’s DNA on the blanket covering Mr. Busby’s body is yet another DNA test result that, had it been available at the time of trial, would have provided the defense with another basis in the physical evidence from the crime scene for arguing that Mr. Skinner was not the murderer.15 (d)

The dishtowel found in a black plastic bag in the living room contained third-party DNA and tested positive for the presence of blood.

A dishtowel found at the crime scene, pictured in DX 32 at 121, was submitted to the DPS lab for analysis.

The first step in that

analysis was to use a technique known as “mini-tape” to lift from the towel any DNA that might be present but not apparent to the naked eye. Each side was mini-taped separately, and the collected DNA from each side was labeled “Stain 1” and “Stain 2,” respectively (although, as just described, the mini-tape collected DNA was not actually a “stain”).

Id. Then a presumptive test for blood was applied to several actual, 15

The convicting court’s findings completely ignored this argument.

visible stains on the towel. One of them tested positive and was labeled “Stain 3.” Id. All three “stains” were then subjected to STR testing. In the case of Stain 1, DPS found a mixture of the DNA of at least two people, from which Larry Porton, the court reporter at the trial of this case, could not be excluded as a contributor. However, Mr. Skinner and all three victims were excluded as contributors. DX 10 at 5. With respect to Stain 2, a mixture of the DNA of at least three people was found, from which neither Mr. Porton nor DPS trace analyst Mr. Bundy could be excluded.

Again, Mr. Skinner and all the victims were

excluded as contributors to this stain. Id. at 5-6. And in the case of Stain 3, the lab concluded with “a reasonable degree of scientific certainty” that Twila Busby alone contributed the DNA in that stain, and that, given the meaning of that quoted phrase, everyone else in the world was excluded. Id. at 6; Hearing Tr. 3:190 (Hester). Because only Stain 3 tested presumptively positive for the presence of blood, see DX 32 at 121, the DNA lifted by the mini-tape and labeled “Stains” 1 and 2 presumably was deposited on the dishtowel in another form, like skin cells.

Obviously, Mr. Portonâ&#x20AC;&#x2122;s and Mr. Bundyâ&#x20AC;&#x2122;s DNA were present on the dishtowel through inadvertent contamination. As the court reporter at trial, Mr. Porton would have had the duty of taking custody of the dishtowel when it was introduced into evidence and maintaining custody of it after trial. At some point he likely handled the towel and left his skin cells on it. See Hearing Tr. 2:58 (Heinig). Mr. Bundy likely contaminated the dishtowel when he was present in the room at the DPS lab where it was being processed for DNA testing. See DX 18 at 1. But neither Mr. Porton nor Mr. Bundy account for all the nonblood DNA lifted by mini-tape from the dishtowel. DX 37A shows that on Side 1 there were two alleles extraneous to both Mr. Porton and Mr. Bundy, and on Side 2 there were a total of six extraneous alleles. There was only one locus where even partial results were obtained from both Sides 1 and 2, but the one allele found at that locus on both sides was the same, so it is possible that the unknown person who left DNA on Side 1 was the same unknown person who left DNA on Side 2. Hearing Tr. 2:57-58 (Heinig). These results, had they been available at the time of trial, would have provided the defense with the following argument to the jury: The

towel was found in a black garbage bag in the same room where Twila Busby was killed. The place where it was found and the fact that it had Twila Busby’s blood on it suggest the possibility that the murderer used that towel to wipe Ms. Busby’s blood from his hands after he killed her, and that he then put the towel in the garbage bag with the intention of disposing of it later.16 See id. at 58. Robert Donnell is now dead, so there is no way short of exhumation to know whether he contributed the extraneous DNA profile found on the dishtowel.

It is clear,

however, that whoever left that DNA, it was not Mr. Skinner, not any of the victims and not any of the numerous other people associated with the case from whom DPS had collected samples (e.g., court and laboratory personnel, law enforcement officers, or lawyers). As with respect to the “visually dissimilar” hairs found in Twila Busby’s hands, the convicting court was dismissive of the DNA test results with regard to the dishtowel, saying that the unidentified alleles found in Stains 1 and 2 “could have come from anyone ever having contact with the dishtowel.” Record 170 (¶ 63.B.) Indeed, just as with The jury also heard evidence at trial that the State crime lab had lifted fingerprints from the outside surface of this plastic bag and could not match them to the prints of Mr. Skinner or any of the victims. Tr. 27:916. 16

the hairs, the convicting court made it clear that it considered the burden to be on Mr. Skinner to present evidence showing that the unidentified alleles were deposited at the time of the crime. Id. By thus turning the art. 64.04 standard on its head, the convicting court was able to ignore the fact that, despite the possibility of alternative explanations for the presence of the unidentified alleles, the test results on the dishtowel would nevertheless have provided, in conjunction with all the other evidence in the case, yet another basis for a juror to question whether Mr. Skinner was the murderer. 6.

The cumulative effect of the results of post-conviction DNA testing on the strength of the defense theory at trial is substantial.

In summary, had the post-conviction DNA test results been available at trial, the defense would have had the following additional arguments available to bolster its case for reasonable doubt: 1. Hairs were found clutched in Twila Busbyâ&#x20AC;&#x2122;s hand; a DPS lab analyst found those hairs visually dissimilar to the known hair samples from each of the victims, and the hairs had a mitochondrial profile consistent with that of alternative suspect Robert Donnell. 2. The nature of the stab wounds to Elwin Caler and Randy Busby were such that one would expect that the person who stabbed them would have had their blood on his hand. Yet the blood stains Mr. Skinner left on the back

doors when he exited the house contained only his own blood, not that of any of the victims. 3. If Mr. Skinner cut his hand as the State postulated at trial—by striking Randy Busby’s shoulder blade with the point of the knife, causing Mr. Skinner’s hand to slide down the blade—one would expect Mr. Skinner’s blood to be on the blanket covering Mr. Busby. Yet the only blood found on the blanket was that of Randy Busby himself. 4. A dishtowel that could have been used by the killer to wipe Ms. Busby’s blood from his hands after killing her did not have Mr. Skinner’s DNA on it but did contain the nonblood DNA of an unknown person, who could have been Robert Donnell. The reasonable probability standard in art. 64.04 demands that a reviewing court consider what cumulative effect these four arguments would have had on the jury. Cf., e.g., Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990) (in deciding whether counsel’s errors satisfy Strickland’s “reasonable probability” standard, reviewing court should consider them “taken as a whole” rather than “standing alone”). It is impossible to deny that these results, considered cumulatively, would have powerfully bolstered the case for reasonable doubt. In addition to using the wrong standard to reject the affirmative reasons Mr. Skinner offered for why the DNA test results likely would have changed the verdict, the convicting court placed outsized emphasis on the fact that Mr. Skinner’s blood or DNA was found on many of the 41

items tested, including on the handle of a knife that was likely used in the murders and items from the floor of the bedroom shared by Randy Busby and Elwin Caler. See, e.g., Record 179-83. The DNA test results on these other items, however, do not alter the overall evidentiary picture of the case. First, there was never any dispute at trial that Mr. Skinner was a resident of the home where the murders took place.

As such, a

reasonable juror could certainly have concluded that Mr. Skinner innocently came into daily contact with the handle of the kitchen knife that tested positive for his DNA, and that such innocent daily contact could have left his DNA on the handle in quantities large enough to be detected by testing. Hearing Tr. at 2:86-87, 89 (Heinig). In addition, as noted supra, on the night of the crime Mr. Skinner was severely bleeding from a deep cut in the palm of his hand. If the bloody kitchen knife was used to inflict Mr. Skinnerâ&#x20AC;&#x2122;s injury, his blood could easily have migrated from its blade to its handleâ&#x20AC;&#x201D;a phenomenon regularly encountered in cases involving stabbings. Id. at 87-89 (Heinig). It could also have been transferred there during the swabbing process in the laboratory. Id. at 88, 90 (Heinig).

Finally, the presence of Mr. Skinner’s blood on other surfaces throughout the house also adds nothing that is inculpatory to what was already known at trial. The defense did not dispute at trial that Mr. Skinner moved about the house—albeit in a stuporous state—after he incurred a cut to his hand; that much was apparent from the undisputed trial evidence that his bloody handprints were on the door molding in the sons’ bedroom and on the inner back door knob. See Tr. 27:913.17 Particularly given the scientific evidence now establishing the complete absence of Mr. Skinner’s blood from the blanket that covered Randy Busby, see supra, a reasonable juror would likely conclude that Mr. Skinner’s DNA at various locations in the sons’ bedroom shows that he was present in that room, but only after someone else had stabbed Mr. Busby. Similarly, the complete absence anywhere in the house of any mixture of Mr. Skinner’s DNA with that of either of the two stabbing victims would likely lead at least one reasonable juror to conclude that Mr. Skinner did not commit those stabbings.

Glen

Thus, the convicting court was wrong in its finding that the presence of Mr. Skinner’s DNA profile in the boys’ bedroom “would also be contrary to Skinner’s defense at trial that he was too incapacitated by his intoxication to be moving through the house.” Record 180 (¶ 89). 17

Unnasch, a latent print examiner at DPS, called by the State at trial, testified that Mr. Skinner’s bloody handprints in the sons’ bedroom and the back doorknob showed only that he was “present [in the house] with blood on his hand” and nothing more. Id. at 923. What the post-trial DNA testing adds to that conclusion is that the blood on his hand was only his own and not that of any of the victims—which to a reasonable juror would make it seem less, not more, likely that Mr. Skinner was the murderer.18 CONCLUSION At the DNA hearing in February, the State failed to present any new evidence confirming Mr. Skinner’s guilt. Indeed, the opposite is true: the testimony confirmed DNA from an unknown person, along with Twila Busby’s blood, on a dishtowel that had been secreted in a plastic

garbage

bag

the

crime

scene.

addition,

the DNA test results were at odds with the State’s theory of the crime.

For some unexplained reason, the convicting court also held that the presence of Twila Busby’s blood on a door stop molding leading into the boys’ bedroom “supports the State’s theory that Skinner killed Twila and then went to kill the boys to leave no witnesses.” Record 180 (¶ 89). But, because only Twila’s DNA, and not that of Mr. Skinner or the other victims, was found in that blood droplet, see DX 10 at 6, its mere presence on the doorway leading to the boys’ bedroom says nothing at all about how it got there or, more important, who committed the murders. 18

If Mr. Skinner stabbed Randy Busby in the manner claimed by the State, Mr. Skinner’s blood should have been on the blanket of Randy’s bed. It wasn’t. If Mr. Skinner killed the three victims in the manner described by the medical examiner, their blood would have been mixed with his on the doorknobs and the other items he touched before he staggered out of the house. It wasn’t. Finally, Mr. Skinner’s DNA on the common kitchen knife used in the crimes could have come from his having innocently used it as a resident of the house and being cut with it by the assailant. Moreover, the DNA testing produced results not only raising grave doubts about Mr. Skinner’s guilt but also pointing to a credible alternative suspect. Despite the State’s efforts to obfuscate the results, there is no escaping the fact that the State’s expert analyst did not retreat from the conclusion contained in his laboratory report that three of

the

four hairs

found

Twila

Busby’s

hand—hairs

with DNA consistent with a maternal relative of the victims— were ”visually dissimilar” to the victims’ own hair.

This evidence,

coupled with the other DNA test results and the evidence presented at