NEW HELL HOLE NEWS
JUNE 17, 2010
New Hell Hole News - #25 June 17, 2010 Re: USSC N° 09-9000 Dear Connect Amarillo.com, et al: I have been made aware of Lynn Switzer and Mark White’s letter concerning my case and the Supreme Court’s grant of certiorari on 05.24.10. I wish to respond personally and publicly. Their letter is reprinted below paragraph by paragraph. Each paragraph is followed by my response. In January 2010, the United States Supreme District Court dismissed Mr. Skinner’s civil rights lawsuit, and the Fifth Circuit Court of Appeals affirmed the decision. Mr. Skinner petitioned the United States Supreme Court seeking further review, and that request was granted by today’s order. The Federal District Court dismissed the suit only because it was bound by outdated, incorrect 5th Circuit case law which is at odds with Supreme Court precedent, as well as every other Circuit to have considered the issue. Our office responded to Mr. Skinner’s civil rights litigation by taking positions strictly in accordance with the controlling law of the State of Texas, and the Fifth Circuit Court of Appeals, and the briefing we filed primarily challenged whether the District Court had jurisdiction to reach Mr. Skinner’s complaint. “Her office responded” to nothing. She hired outside private counsel to represent her at cost to the tax paying citizens of Gray County. This counsel, like Switzer herself, also proved ineffective. So lately their briefs are being ghost-written (again at cost to the taxpayer) by a skeezy attorney in the Texas Attorney General’s office. The positions they’ve taken are not “strictly in accordance with the controlling law of Texas” nor in compliance with the Federal constitution. That’s why they lost; their arguments were totally without merit. Lynn Switzer has something to hide regarding this evidence and these subterfugial arguments are merely designed to protect their illegal secrets. There were no jurisdictional arguments but merely a question of law: whether the controlling Supreme Court precedent of Heck vs Humphrey and its progeny bars such a suit. Madam Switzer does not even understand the issue at bar. That’s why she had to get help. The Heck question alone is what the Supreme Court granted cert on. There have been many inquiries about why Lynn Switzer has opposed Mr. Skinner’s request for post-trial DNA testing. It is important for the citizens of Gray County to view that request in light of the procedural background of this case. As you will soon discover below, Madam Switzer’s procedural arguments have already been found by the Federal Courts to be without merit, otherwise they could not have even reached the substantive question raised. The citizens of Gray County should be totally unconcerned with inconsequential procedural matters and should be concerned instead with only whether one of their citizens, though actually innocent, is sitting on death row for 17+ years while the State is trying to kill him. Madam Switzer is very actively and adamantly, as well as very seemingly irrationally, blocking all efforts to get at the simple truth by testing this evidence. Every State agent involved in the investigation of this 1
case has said this evidence needs to be tested, as have the original prosecutor and two other previous D.A.’s. Mr. Skinner was convicted and sentenced to death in March 1995 for having killed Twila Busby and her two adult, mentally-challenged sons Randy Busby and Elwin “Scooter” Caler, shortly before midnight on New Year’s Eve of 1993. Before the trial, former Gray County District Attorney John Mann obtained DNA testing and those results were admitted against Mr. Skinner during trial. DNA testing of two of the blood stains on Mr. Skinner’s shirt were consistent with Twila Busby’s DNA, while a third blood stain was consistent with Mr. Skinner’s DNA. DNA testing of blood stains were consistent with Elwin’s DNA. A forensic scientist testified at trial that 1 in 5.5 billion people (at the time, the population of the earth) would have the same DNA probes identified in the blood stains as belonging to Twila, Elwin, and Mr. Skinner. In 2000, former District Attorney John Mann again submitted several items of evidence for DNA testing. The results of some of the items were inconclusive. The testing on the hair found in the right hand of Twila showed a profile that was consistent with both Twila and Mr. Skinner. All evidence was available for forensic testing prior to trial had Mr. Skinner’s attorneys Harold Comer and Kenneth Fields chosen to do so. At autopsy both Scooter (Elwin) and Randy were found to be physically normal (i.e. free of disease and/or defects); both graduated high school on time, with their class. The DNA testing referred to were only contact stains consistent with my claim of innocence according to the State’s own experts. The post-trial testing conducted in 2000 by D.A. John Mann was not “inconclusive”; Mann simply lied about the results and, long after he was corrected by GeneScreen, he continued to lie. These facts are well attested by documents from Mann’s own files, contained in exhibits P2 and P3 in my January 27th, 2010 letter to D.A. Lynn Switzer. On March 24th I almost died because of these lies, coming within 20 minutes of execution. On May 24th, 2 months later, Lynn Switzer once again continues to try to perpetuate these lies. It is true that the initial test yielded a result of a “mixed profile” of Twila and myself from the bloody hairs “clutched” in her hand. However, unlike Paul Harvey Madam Switzer simply fails to tell “the rest of the story” which is this: of the mixed profile, all of my markers were “faint”, indicating it likely resulted from innocent lab contamination between the wellplates when my standard sample was loaded too close to Twila’s evidentiary samples. Which is why accepted practice is to load them separately and far apart. Additionally, subsequent testing of the blood flakes off the hair prove it was only Twila’s blood, not mine; subsequent mitochondrial testing of the hairs themselves prove that they came from an unknown male individual, not me! But that’s nothing. The criminalist who viewed a man’s jacket size XLG 44-46 found beside Twila’s body said it was likely worn by the assailant as it had medium velocity impact spatter on the cuffs and forearms of the sleeves. Only Twila had injuries that would result in medium velocity impact blood spatter. Ergo, the assailant was the owner and one wearing that jacket, not me. I wear a medium 38-40. I could’ve have used that jacket for pup tent. Footwear impressions in the pooled blood by Twila’s head are size 11-12 and American technics (or polytechnics) semi-combat boot. I wear a 9-9 1/2 . I owned no boots at the time of the murders only tennis shoes. Bloody fingerprints on a trash bag containing one of the purported murder weapons were determined to not match me. Blood off a cassette tape case found near where Twila was killed contains a mixture of blood from an unknown male and female individuals. Blood off the sidewalk outside the front door belongs to an unknown male individual. Yet previous D.A.’s John Mann and Rick Roach lied to the media, telling them that “in all the testing there has been no DNA from any 3rd party”. 2
Madam Switzer conveniently fails to tell any of you citizens of Gray County any of these facts, eh. Oh, hold on. I’m not done yet. The fact that 1 in 5.5 billion people would match Twila’s blood on my clothes as cited by Switzer is evidentiarly meaningless. Big numbers meant to impress. The State’s own experts conceded at trial that the stains on my clothes which were tested were only contact transfers and showed only that I came into contact with a victim at a time after they became bloody, not that I did anything to them; or that I came into contact with a surface upon which they’d deposited blood. Both scenarios consistent with my innocence and the actual events that I got off the couch and stumbled out of the house after the murders were committed. I was injured that evening as well. I had a very profusely bleeding cut on the palm of my right hand, the hand with the barely healed, crippled thumb. My blood was found nowhere on Twila, Elwin, Randy nor on any of the alleged murder weapons. I cannot be faulted for Harold Comer’s refusal to test the evidence prior to trial. I wrote him letters all summer proclaiming my innocence, begging him to help me prove it; begging, demanding, cajoling him to test the evidence. Comer was an ex-D.A. with a $96,000 IRS tax lien default and about to go to federal prison for it, but his good political buddies Mann and Judge M. Kent Sims bailed him out – the price was steep: my life. Comer sold me out. Years later on appeal, as he sat on death row, Mr. Skinner argued that his attorneys were ineffective for failing to pursue DNA testing. It was not “years later on appeal as I sat on death row” that we filed ineffective assistance claims on Comer. We had to file those in a state habeas after direct appeal. Everything was filed at the appropriate time. We pursued DNA testing consistently and timely as well. There are no valid procedural default issues in this case. All federal court rulings were on the merits. In November 2005, lead defense trial counsel Harold Comer testified during a federal evidentiary hearing and explained the trial strategy (1) that the defense hired a DNA expert who evaluated the State’s evidence and found no basis for challenging the results; (2) that certain DNA test results, such as for the blood stains on Mr. Skinner’s clothing, had been damaging to the defense’s blood spatter expert determined that widespread amounts of blood stains on the clothing Mr. Skinner was wearing when he was arrested a few hours after the murders were inconsistent with Mr. Skinner’s story that he had lain comatose on the sofa only a few feet away from where Twila was beaten and strangled to death; and (4) that Mr. Skinner’s videotaped statement to police about how he and Twila had fought with a stick (which police found imbedded with blood and hair, and laying near Twila’s body) was also inconsistent with Mr. Skinner’s alibi. Comer never coined this “strategy” argument until well after Mann falsely claimed in 2000 that post trial DNA testing was inculpatory. After Mann was shown to be lying, the only thing Comer could say about his alleged “strategy” is that “we only wanted to try that case to a jury with an alternate suspect (Donnell) so we didn’t investigate it to any conclusion much like the police would”. Comer admitted that he had no reason, much less any strategic one, for failing to conclude the investigation into Donnell. Of course, pursuing that should have included testing. The widespread stains inconsistency with my having simply lain on the couch, according to the criminalist who examined evidence, was a direct result of Comer’s failure to fully inform said expert 3
of the totality of facts regarding this issue: namely a) that most of the blood on my clothes is likely my own dripped blood from my hand wound and b) more importantly, I wasn’t even wearing my clothes when I was lying on the couch; they were draped over the furniture less than 18”-24” from where Twila was killed. Blood was spattered all the way onto the curtains behind the couch where I lay, so certainly it was spattered on my clothes as well. I didn’t make any such videotaped statement as Switzer alleges. In the statement I did make, I did not admit involvement in the crime at all. I said I remembered something about the club and a fight. Not that I was involved. I said I didn’t know what happened; that’s true, I don’t have firsthand knowledge. I was comatose on the couch when it all happened. However, even in my sickened state at the time, during questioning I demanded a lawyer and lead detective Terry Young admitted at a pre-trial habeas hearing that he refused me access to counsel then continued questioning me and began suggesting scenarios to me and attempting to get me to confirm them, violating all my Miranda rights and rights to constitutional due process. John Mann testified at a federal evidentiary hearing that all my rights were so blatantly and obviously violated; that officer Young was known to be corrupt and his tactics illegal and, that he was not trustworthy. Young himself admitted to the Houston Chronicle that I never confessed. Lyn Switzer cannot deny knowledge of this fact because Young’s truthful statement is contained in exhibit “B” of the letter I sent her on January 27th, 2010. A Houston Chronicle story (titled “ANOTHER DEATH PENALTY CASE BECOMES FOCUS OF SCRUTINY”) by James Kimberly and Mike Tolson, June 28th, 2000. That story and other exhibits to my letter disprove every other contention Switzer makes in her letter. I did not have any “alibi”. An alibi is usually a general denial by claiming to have been elsewhere at the time of the crime. I never claimed that. Switzer is obviously confused. That seems to be her semipermanent, fatuous state. Talking to Young was a “free shot”. Knowing he’d so egregiously violated my rights, I knew the interview was inadmissible for any purpose. So I decided to bait him. I knew that club was used to kill Twila, he’d told me so. I knew damn well I hadn’t touched that club. But I knew that if they tested it and it didn’t come back to me I could use that to prove my innocence. I also knew Terry Young was attempting to set me up for this crime – his suggested scenarios had clearly revealed that much. I knew Young was an idiot, I knew I didn’t touch that club, I knew a killer did. So I decided to say what I could to give him the impression he’d find my DNA/prints on it. I made the mistake of thinking the State crime lab people were honest even tho’ I knew Young was not. They were liars too. Altho’ they were forced to admit my blood/prints were not on the club, they likewise claimed there was no DNA on the gripping end nor any usable prints. But they didn’t use the Ninhydrin or superglue cyanoacrylate fumes method for raising prints, either. I guess because my hand was cut those geniuses finally figured out I could not have been the one to wield that club, so they lost any interest in further testing it. I couldn’t have used those knives purported to be the murder weapons, nor the club. My thumb had nearly been severed off my hand in a shop accident just 5 months before the murders. At the time of the murders my hand was freshly healed after an infection and outpatient surgery to remove necrotized tissue; I’d lost 38% of the muscle mass in the base of my thumb and palm, the wound was barely closed and the skin and scar stretched tight and thin over the bone. I could not make a fist with that hand and was having trouble just holding a toothbrush or hairbrush. This was my right hand. I’m right handed, thus right hand dominant. I had less than 50% strength and motility in that hand 14 months 4
after the murders. In addition to the weaponry I could not have made any use of, Twila was strangled by hands so powerful they left permanent indentations in the flesh of her neck and broke the hyoid and cricoid bones attached to her larynx. Experts testified at trial, unrefuted by the state, that I could not have effected these injuries to the victims. Isn’t it interesting how hired gun Mr. White and D.A. Switzer conveniently fail to mention any of the above? You know why? Because they cannot answer to nor refute any of these facts. These blatant omissions by Switzer/White amount to dishonesty. They’re using a very skewed view of facts in a limited fashion to paint a picture for you, the public and you, the media which is obviously false. My question to you is: why aren’t you calling them on it? Why don’t you present them with these facts and demand rigorously honest answers? I am a citizen of Gray County just like those of you White and Switzer are speaking to! My damned life is at stake here! This could easily be you! Because, by God, if she’s allowed to do it to me and get away with it, she can do the same to you! Any of you! The United States District Court held that Mr. Skinner was represented at trial by competent counsel who mad a reasoned strategic decision to not seek DNA testing, and denied relief on this ineffective assistance of counsel claim. The Fifth Circuit found that reasonable jurists would not debate the decision, and the United States Supreme Court denied review. So? That doesn’t make it right or just! It is well known that since the courts became antagonistic toward defendants in the republican led “get tough on crime” political craze of the 90’s, the federal judiciary (Averitte and Robinson) and the 5th Circuit lost any integrity and commitment to true justice it ever had. When it became politically unpopular to rule for any defendant, justice flew out the window. Lie and deny became the order of the day and it rules still. Then people like White and Switzer point to these decisions and say “the courts denied relief” as if it were somehow justification for their own failure to honor their oath of office. Additionally, Mr. Skinner filed two motions with the trial court (in 2001 and 2007) seeking post-conviction DNA testing. Both times, the trial court and the Court of Criminal Appeals found that Mr. Skinner was unable to show that there was a reasonable chance that additional testing could exonerate him, and therefore denied the motions. In both instances, Mr. Skinner failed to ask the Supreme Court for certiorari review. Mr. White misstates the CCA’s actual language. The courts denied testing on erroneous grounds. The fact that the Supreme Court is now forced to take up the matter is testament to that fact. We did not “fail” to seek Supreme Court review of the State court decisions as Mr. White states. We were pursuing federal constitutional claims. In that context we are merely required to first exhaust State court remedies, then to show that those remedies were inadequate and that the State courts decisions are arbitrary and violate federal mandates. This is readily demonstrated by the CCA’s written opinions. They’re the laughing stock of the judiciary nationwide. In the latter opinion that nutcase Sharon Keller lapses into an inquisitorial style of address, she’s so full of hatred and devoid of any rational logic. The United States Supreme Court does not sit to address matters of State law interpretation – such as a CCA decision – but only matters of federal constitutional dimension. So it would’ve been futile and frivolous to appeal the CCA decisions to the Supreme Court – Ch 64 DNA statute is a State law. It doesn’t implicate federal mandates on its face. The arbitrary application of Ch 64 to my case by the CCA is part of our federal lawsuit against Switzer and we are addressing it in that context.
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It is Mr. White and Madam Switzer who have failed to convince the United States Supreme Court that certiorari review of the 5th Circuit’s erroneous denial of our suit and access to DNA testing is not warranted. Thus the Supreme Court grant of certiorari May 24th, 2010. Lastly on this issue, Mr. White falsely implies we’ve been dilatory in filing for DNA testing. The record will reveal that as soon as the Ch 64 DNA statute was enacted we were amongst the first to file a claim. We vigorously and very timely pursued it to a conclusion. It was the State that dragged its feet for 9 months, refusing to rule. Judge Schemmert was cited by the CCA for abusing his discretion in that initial Ch 64 litigation. When the statute was amended, we again were among the first to file. Nearly 15 years after trial, Mr. Skinner tried another tactic – arguing for the first time that current Gray County District Attorney Lynn Switzer is violating his civil rights by not allowing him to conduct additional DNA testing. Although nothing prevented Mr. Skinner from filing a civil rights lawsuit earlier, he did not initiate this attack until after the trial court ordered his execution for February 2010. We’re not trying another tactic, we’re following the United States Supreme Court’s precedential direction on how to obtain access to test DNA evidence that could prove my innocence. Last year in a decision called Osborne vs Dist. Att’y the Supreme Court decided how this must be done. That’s how we’re doing it. Mr. White is mistaken yet again. We timely filed the suit. One of the reasons Osborne was denied was because he filed suit without first having utilized State law procedures for obtaining access to the DNA evidence. So we had to fully litigate the matter under State statute (Ch 64), first. As I’ve already stated, all the delay in this matter is directly attributable to Judge Schemmert and the nutcase Keller on the CCA. Also, no valid death warrant/execution date was extant at the time we filed suit. Now to address Switzer’s direct statements. “As District Attorney for the citizens of Gray County, I give great weight to the wishes of the victims’ families, and particularly with the immediate family of these victims and my position regarding the DNA evidence controversy is fully supported. There have been many questions, speculations, allegations and outright misrepresentations in this case that it has been difficult to stand silent until the civil lawsuit was resolved. I made the decision to defend against this suit with an eye not only on Mr. Skinner’s case but on past and future cases as well. I knew that there were ramifications for District Attorney’s all across the state, especially where the defendant waits so long before even filing a civil rights lawsuit. I felt that it was important to stand firm, something that is not always easy to do. If defendants are allowed to “game the system” then we will never be able to rely on the finality of the judgments entered in their cases. I know that it has been hard on the family and friends of Twila, Randy and Elwin and I appreciate their feelings of frustration and hurt. The “family of Twila”, Scooter and Randy have already publicly stated unequivocally that they want the testing done – just ask Twila’s daughter and only surviving heir, Lisa Busby. If she’s so “fully supported” why are David Brito-Garcia and Lisa Busby selling t-shirts in Pampa right now at 841 S. Barnes that say “Test the DNA in Hank Skinner’s Case!”? The “outright misrepresentations” Switzer complains of, as shown above, are all her own! We haven’t waited too long to file anything. All of Switzer’s subterfuge totally overlooks the fact that if she’d just turn over the evidence and let us test it all of this could be resolved! 6
In the US Supreme Court’s decision in the 2009 Osborne case, they said that Osborne could not contest Alaska’s post-conviction testing statutes or sue the D.A. without having first attempted to utilize those procedures to an ultimate conclusion. By the Supreme Court’s own precedent, then, we could not have filed suit until the CCA’s final decision on our DNA Ch 64 testing request. No one is “gaming the system” Lynn Switzer. But your lying ass is attempting to game the public at large and the citizens of Gray County with your subterfuge and misdirection. “Skinner has a full and fair trial before a Gray County jury. He elected not to have more evidence tested for DNA, which was his trial strategy. He was convicted. His case has dragged on for years. The fact that the Supreme Court has granted Skinner’s request for a final review of this matter provides an excellent opportunity for the Court to affirm that once a convicted state prisoner has had an adequate opportunity to make a due process challenge to his conviction through a habeas corpus proceeding, other post-conviction proceedings are better left to the states to handle. The Texas procedure for obtaining this evidence is ample and reasonable, and Mr. Skinner has been given plenty of opportunity to show that additional testing could prove his innocence, but he could not show that. We look forward to presenting the case to the Court.” No, I did not “have a full and fair trial”. I also did not “elect not to have more DNA evidence tested”. These statements are outright lies! As I pointed out to you in my Jan 27th letter (Delivery confirmation #7004 2510 0007 2512 1425) then D.A. John Mann suborned perjury from Twila’s mother, Beverly Clark, which is unequivocally proven beyond any doubt by documentation you turned over to us persuant to an open records request out of Mann’s own files! He likewise threatened Andrea Reed into lying on me and it was solely on her lies that I was convicted! The fact that the 5th Circuit refused to reverse my conviction does not make it right or just. It only means that those three clowns on the 5th Circuit panel, just like you, try to lie and deny, sweep it under the rug rather than admit the truth: I was framed. You, wench, are only the latest continuance of John Mann’s legacy of deceit, corruption and lies. The jury never heard the truth! Your statements are in direct conflict with the record evidence. The record shows that I wrote Harold Comer, the ringer ex-D.A. and Mann’s crony I was saddled with for a “defense” lawyer, demanding that he hire experts and serologist to test the forensic evidence. At that time I thought serologists did DNA. DNA was in its infancy still in 1993-94 having been first used in a criminal trial in 1986. As the federal court stated, it was “novel”, still in 1995. My letter to Comer was dated June 16th-25th, 1994. Comer refused to get the testing done. There are no “important issues or ramifications for D.A.’s all across the State’”. What an absurd joke. What D.A. in his or her right mind would oppose the justice he/she is sworn to uphold, would deny testing in a case like mine, where the crucial evidence that can unequivocally determine innocence or guilt has never been tested? Only you, Lynn Switzer! Only you. Yes, you thought these issues to be so “important for D.A.’s all the across the State” that you flatly refused to attend the CCA’s oral argument on my Chapter 64 DNA appeal in Austin in October 2008. You have admitted elsewhere that this evidence could prove my innocence yet you would send me to my death without testing it. What D.A., what true servant of the citizenry and taxpayer, would take such an illogical, asinine stance when all three of your predecessors in office, including Mann himself before he died, as well as the medical examiner who worked the case, three lead detectives and the first officer on the scene have all publicly stated that this evidence needs to be tested? You, woman, are a sick walking joke. The Dallas D.A.’s 7
office has stated unequivocally that they would not oppose testing in a case like mine and they have more DNA exonerations than any other county in the State! To anyone who believes Texas DNA rulings “are ample and reasonable”, read the CCA’s Ch 64 opinion ruling in my case. Sharon “Killer” Keller wrote it herself! It employs an inquisitorial form of address, it’s so biased and one sided. The Inquisition (1233-1834) has long ended. Today our justice system employs an adversarial system and form of address. Lynn Switzer has squandered an untold amount of the taxpayers’ money hiring outside counsel to defend her, in an effort to thwart justice and commit State sanctioned murder, where she could easily just have tested the evidence and let the chips fall where they may. It would not have cost her or you, Mr. and Mrs. Taxpayer, one thin dime! Lynn Switzer has something to hide. Time will bear that out, mark my words on it. I have done everything within my power to get this evidence tested from day one, even coming perilously close to falsely admitting involvement in the crime, just to get the club tested. Before the DNA statute was even written and passed into law, I filed discovery motions with the CCA during the pendancy of my first State Habeas which they never even heard. This case has “dragged on for years” only because of the State’s never ending delays, subterfuge, lies, stalling and resistance to allowing the testing. They could’ve opted to put an end to this at any time by simply testing the evidence! Do not allow Lynn Switzer and her ilk to mislead you as she has others. I’m sorry for what Lisa Busby has went through because of this case, but, I’ve went through the same and worse. I’ve been locked up for 17+ years now for a crime I did not commit. Those lost days of my life I will never get back. Worse, I’ve been within 20 minutes of death, as well. Respectfully, Hank Skinner 999143 Polunsky Unit H W Hank Skinner 3872 FM 350 South Livingston TX 77351-8580 http://www.hankskinner.org h.w.skinner@gmail.com hwskinner@yahoo.com For those of you who use JPay to write to Hank, don’t forget to always include your postal address and your e-mail address after your signature, so Hank can reply to you. For those who would like to use JPay to write to Hank (www.jpay.com) don’t forget to enter the TDC number as an 8-digit number: 00999143. Thank you! 8