DNA ISSUE
COURT OF CRIMINAL APPEALS JOINT ADVISORY JUNE 15, 2017
JUNE 15, 2017
JOINT ADVISORY I.
Brief Procedural History Appellant, Henry Watkins Skinner, was convicted of capital
murder and sentenced to death in 1995; a conviction affirmed by this Court in 1997. See generally Skinner v. State, 956 S.W.2d 532 (Tex. Crim. App. 1997). The present proceeding concerns whether DNA test results, obtained pursuant to Chapter 64 of the Texas Code of Criminal Procedure, are favorable to Appellant. See Skinner v. State, No. AP77,046, 2016 WL 899097, at *1 (Tex. Crim. App. Mar. 9, 2016). Before a decision on that matter could be had, however, this Court determined that further fact-finding and analysis by the trial court might be in order. Id. at *8. Accordingly, the Court abated the appeal and remanded the case to ensure timely reanalysis of the DNA test results and to make any additional findings as necessary.
Id.
The reanalysis and possible
supplemental findings were to be resolved by June 7, 2016. Id. On May 23, 2016, the parties jointly moved the Court for more time to complete the reanalysis and potential further fact findings because the validation process was ongoing for a small portion of the DNA samples. Joint Mot. Extend Time 1–4. On June 8, 2016, the Court asked for added factual development of the joint extension motion. Skinner v. State, No.
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AP-77,046, 2016 WL 3351308, at *2 (Tex. Crim. App. June 8, 2017). A record was produced at the trial-court level and forwarded to the Court. As of today, the joint extension motion remains pending. II.
The Additional Reanalysis Is Complete and the Parties Anticipate that Factual Development can be Completed in 180 Days. On May 19, 2017, the Texas Department of Public Safety laboratory
issued a report completing the reanalysis of the outstanding samples. The State received its copy on May 24, 2017. The next day, the State’s lead counsel began discussions with Appellant’s counsel to coordinate setting a hearing in the convicting court to address the reanalysis results. As of two days ago, information has been gathered from all relevant individuals regarding scheduling. Based on the parties’ and the trial court’s previously existing commitments, the parties believe a hearing on the reanalysis results can be conducted in early- to mid-November, which should make it possible for the convicting court to enter additional findings by mid-December. The State and Appellant offer the following as good cause for this schedule. Lead counsel for the State is in the midst of an unusually busy period. He maintains an almost exclusively capital caseload, including providing support for colleagues’ cases set for hearings. In the near 2
future, lead counsel for the State has the following deadlines: (1) a brief in the Supreme Court in a capital federal habeas case due June 29, 2017 (Long v. Davis); (2) a brief and motion response in the Fifth Circuit in a capital federal habeas case due June 23, 2017 (Freeney v. Davis); (3) a brief in the Fifth Circuit in a capital federal habeas case due June 30, 2017 (Gutierrez v. Davis); (4) a brief in the Supreme Court in a methodof-execution case due July 7, 2017 (Wood v. Collier); (5) a weeklong hearing in a capital federal habeas case beginning July 10, 2017 (Gonzales v. Davis); and (6) oral argument in district court in a capital federal habeas case on July 26, 2017 (Tong v. Davis). Additionally, the State’s lead counsel anticipates being out of the office for a short vacation and out-of-state legal conference August 2, 2017 to August 12, 2017. Immediately after returning, he is participating in a hearing in another case remanded by the Court (Ex parte Storey). About two weeks later, he is assigned to a scheduled execution (Steven Long). Two days later, he has an answer due in a capital federal habeas case (Mullis v. Davis). 1 The State’s lead counsel’s schedule opens up around
The petitioner’s counsel in this case sought an unopposed thirty-day extension as of today. If granted, the undersigned’s new deadline would be October 2, 2017. No ruling has been made on the extension motion as of today.
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the week of September 4, 2017; however, given his schedule, it would be extremely difficult to prepare for a hearing to begin that week. Thereafter, lead counsel for the State has availability for the second half of September, however, one of Appellant’s co-counsel is unavailable at that time due to a previous multi-week, personal commitment. Then, in early October, the State’s lead counsel is anticipating a multi-day hearing, October 10, 2017 to October 13, 2017, in another case remanded by the Court (Ex parte Reed). Additionally, the State’s co-counsel anticipates an execution setting for that week as well. The parties and the trial court have availability the week of October 16, 2017, however, given the State’s attorneys’ schedules, it would again be extremely difficult to prepare for a hearing to begin that week. Thereafter, the trial court has no availability until the weeks of November 6, 2017, and November 13, 2017. The parties have sufficient availability during both those weeks, which represent as a practical matter the first time that the parties’ schedules and the trial court’s availability will line up. In addition to the State’s lead counsel’s litigation schedule, time is necessary for Appellant’s counsel to locate and confer with appropriate experts concerning the proper interpretation of the reanalysis results 4
before any hearing may proceed. “STRmix,” the software employed by the DPS laboratory in conducting the reanalysis, has been in forensic use for a relatively short time and represents an entirely different approach to interpreting DNA samples than the “combined probability of inclusion” estimates that had been used for decades previously. Without additional time, Appellant’s counsel will be unable to identify experts who are appropriately qualified to address the strengths and weaknesses of probabilistic genotyping software like “STRmix” and assess its application in the circumstances of Appellant’s case. Such consultation is essential if the evidentiary hearing is to serve its intended purpose of fully airing the relevant facts. For all the foregoing reasons, the parties would respectfully suggest that an additional 180 days from today’s date, or December 12, 2017, would provide sufficient time for the parties to prepare adequately, present all relevant evidence at a hearing, obtain the transcript, and propose findings to the trial court concerning the significance of the reanalysis results.
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