November 18, 2005 - POST CONVICTION APPEALS by Justice4Hank

POST CONVICTION APPEALS

FEDERAL DISTRICT COURT EVIDENTIARY HEARING TRANSCRIPT VOLUME 1  NOVEMBER 18, 2005

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION )

HENRY W. SKINNER, )

Petitioner, ))

~ )

)

No. 2:99-CV-0045

** CAPITAL LITIGANT** )

DOUG DRETKE, Director ) Texas Department of Criminal Justice, )

Institutional Division, ) )

Respondent. ) )

STIPULATED ERRTA SHEET FOR EVIDENTIARY HEARING REVISED TRANSCRIPT VOLUME I Page Line Number Number 7 7 7 7 9 17

Corrected

4.5

Burrough's Burrough's

15 16 15

CV of

Dr. Wm. Watson Gene Screen been consìdered ìn state cour

CV of Wm. Watson

(ìnaudìble).

GeneScreen been presented to the state court (ìnaudible) know it is over before it

4 4

'98? was heavier

popped up into my head. Never wanted to be.

was he heavier popped into my head. Never wanted to be in it.

1.5

Burroughs'

Buroughs'

stars.

Uncorrected

28 37 42 52 56 57 68 76 77

'95?

THE COURT: Overrled. What was your answer?

THE COURT: What was your answer?

24-25

when he's been drìnkìng?

when he'd been drìnkìng?

only person who was at only person at she (inaudible) was having sex with she was having sex with her uncle her uncle or were you just not the or would you just not have told just not (inaudible). Would you have told

24-25 1

Yes, she did.

Page

Line Number Number 6

the professĂŹonals

testing. . . the professionalĂŹsm

87 126

243

the defense had had forensic

214 228 234

the defense had forensic testing...

150 150 150 162 164 168 169 179

Corrected

Uncorrected

12- 1 3

20 21

20-21 20 5 18 5

23 21

6-13 7

I'm just not sure.

allergic to Codeine but perhaps cast some suspicion Donnell as an alternative? review that exhibit marked Page 5, yes. Here's his Page 5. the results if you did locker room. the university.

accuracy by that evidence front door. me, and * * * * * * * * . . . PFF* . . . If Han

Bil McMan

A just not Mr. Robinson, I'm sure. allergic to Codeine. But perhaps cast suspicion Donnell as an alternative suspect? Review this exhibit we've marked

Page 5, yes. His Page 5. the results of the tests if you did locker. the university there. accuracy why that evidence front room. me, and Katie Gerhardt said, "If

Han Bil McMinn

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION )

HENRY W. SKINNER, ) )

Petitioner, )

~ )

)

No. 2:99-CV-0045

** CAPITAL LITIGANT** )

DOUG DRETKE, Director ) Texas Department of Criminal Justice, )

Institutional Division, ) )

Respondent. ) )

STIPULATED ERRTA SHEET FOR EVIDENTIARY HEARING REVISED TRANSCRIPT VOLUME II Page Line Number Number 253 253 253 253 261

282

Uncorrected

1.5

Burrough's

4.5

Burough's Dr. Wm. Watson Gene Screen (inaudible a preaching alcoholic A. He was

15 16

24 7-8

CV of

slurng his words, some and some E

294

301

1 6- 1 7

316 317 317 335 342 346 346 346 353

7 2 18

4 9

not. This is far above that. so it's -- as soon as it's hydrolyzed Pinsterwahl Pinsterwahl's Pinsterwahl's his MED 45 cutting

14 19

him unconscious...

20-21

On Page 1461 and 15, Line 23 Pinsterwahl's

the references at 5:30.

Corrected Burroughs' Burroughs'

CV ofWm. Watson GeneScreen (inaudible) a practìcing alcoholic A. Yes. He was slurrìng his words. Some and some not.

This is way far above that. so as soon as it's hydrolyzed Pinsterwald Finsterwald's Pinsterwald's it's MED 45 codeine him unconscious...." the reference at 5:30. On Page 1461, Line 23

Pinsterwald's

Page Line Number Number 361

13 5

Uncorrected

Corrected

report, or among others, Pinsterwahl Pinsterwah Pinsterwahl

Pinsterwald report of, among others, Pinsterwald Pinsterwald Pinsterwald

paricle

parial

the cour could hear crìticism on.

the cour could (inaudible).

thought either that case where the defense the knives, maybe the murder weapon hair in Ms. Busby's fist, these would not have hared him?

Pìnsterwahl

362 374 375 375 378 385 394 396 439

thought that either that case where you're the defense

the knives, the murder weapon

440

hair in Ms. Busby's fist would not

24 5

8 14

1-2 19

have hared him? 441 441

452 462 462 462 464 464 517

535 535 537 537 539 539 542 543 543 545 546 547

some exhibits. Okay, fine. Your Honor the mitigations evidence

some exhìbits?

12-13 21 23

tured on ineffective assistance

Okay, fine. Yes, Your Honor the mitigating evidence turned on the ineffective assistance

cour fraud

court found

cour fraud

cour found

1 0-11

findings and conclusions

17 1-2

which is whìch then you have.

findings of fact and conclusions which ìs which then, Your Honor.

"upper gluteal area (inaudìble).

"upper outer gluteal area (inaudible). "

4-5

he got 16.

he got 60.

Toroidal .40 in death.. . are usually very (inaudible),

Toradol

12 8

6 13

4 21-22 3

16 21 10

551 551 553

20 24-25 15-16 17-18 20

554 554 555

8 9 21

genetic material and

somebody

caviar eggs, to try to determine Mitochondria forms single chromosome, So it different cell your body Peel free to use that He would not in Switzerland and (inaudible) it's parial at best data fie but yes,

that does it.

you should (inaudible) always be. after the chain reaction put a whole bunch

.40 is death. . .

are usually very combative, Genetic material, and as somebody caviar eggs to try to determine Mitochondrìa form single chromosome, so it different cell in your body

Peel free to do that It would not in Switzerland (inaudible) it's parial data at best data fie. But yes, that's doing it. you should be (inaudible) always. at (inaudible) chain reaction put in a whole bunch

Page Line Number Number 566

l t..

21-22 6-7

571 571 573

17 25

576

Uncorrected when you reached might see T 174 it A's the consensus THE COURT: (Inaudible). So where's Nashvile to Dallas

Corrected why you reached might see at 174 it A, as the consensus THE COURT: So where's

Nashvile or to Dallas

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION )

HENRYW. SKINNER, )

)

Petitioner, )

~ )

)

No. 2:99-CV-0045

** CAPITAL LITIGANT** )

DOUG DRETKE, Director ) Texas Department of Criminal Justice, )

Institutional Division, ) )

Respondent. )

)

STIPULATED ERRTA SHEET FOR EVIDENTIARY HEARING REVISED TRANSCRIPT VOLUME III Page Line Number Number 584 584 584 584

(

1.5

4.5 15 16

Burough's Burough's Dr. Wm. Watson Gene Screen the -- (inaudible) IID-2 hair,

Buroughs' Buroughs'

CV of

CVof Wm. Watson

Three of

(deleted) A Yes. (Inaudible). Those those three samples. And below (inaudible).

585

18-19

585 585 586

A (Inaudible). Those those three samples and below.

587 588

9 6

588 589 589 592 594 594

Corrected

Uncorrected

(Inaudible) 28.

GeneScreen the -- 110-2 hair,

differences ìs

differences are

electronic data, rìght time table to look at

electronic data to look at

10-1 1

thirt percent T and thirty percent C

3-4

Inclusive

fifty percent T and fifty percent C Inconclusive

12 10 11

headed 16294. 16294 in the '95-96 the hair's an N.

headed 16294. At 16294

in '95-96

the hair'san A. At 228

Page Line Number Number 595 596 600 601 611 612 615 633 633 633 640 645 654 656 658

21 8

Uncorrected dark of black triangles changes that's the mixture

prĂŹmer as to do

A In detail, yes. report is final interpretations

13-14 10 14

"Answer: They certinly agreed

changed that's a mixture primer to do A In detaiL. report's final interpretations

"They certainly agreed I submitted it as a critique publish them, it took to do all of it, and, or I should say A I believe they do.

Higher from the (inaudible). tissue Innocence Project inconclusive

18-19

indicate this Is an issue I don't

indicate this is an issue, I don't

So (inaudible) if there is

So if there is many protocols. And all of them

21-22 22 22 19

20 22 21

25 23

1-2

many protocols. Q And all of them

727

6-8

DNA testing in 2001 rules what

16- 1 7

22 15-16 6-7 20 13 19

4-5 7-8 15-16 17-18 22 14-15 24 22

and that's it. right there.

in 1999 is (inaudible). confirm as to Skinner's against him.

DNA testing in 2001 ruled what counsel's decision on testing was in 1999 (inaudible). confirm Mr. Skinner's against him?

what kind

what kinds

the officer

the officers who, when they tell you something MS.ODEN: my yard.

counsel's decisions on testing was

dark black trĂŹangles

I submitted. It was a critique published them, but it took to do all these things, and I should say A They do. and (inaudible). right here. Highest from the computer (inaudible). fissure innocence project exclusive

669 675 678 694 699 709 716

735 738 738 739 742 747 749 754 758 765 779 779 779 797 809 823

Corrected

who when they tell you something MS. HAYES: my hard. No, I can't. 1997 been of previous on admission

that Skinner told her. information that was received that he had (inaudible). that the confession was made first

statement,

I can't. 1994 been previous

an .admission that Hank Skinner told her. information was received that he had. that the confession that was made "her statement,"

) "

Page Line Number Number 827 832 833 843 843

Uncorrected

Corrected

by defendant.

a alcoholic (inaudible).

by defendant (inaudible). a alcoholic.

to that alcohoL.

to that on alcohoL.

his decision to make, and he

not satisfied, but

his decision ultimately to make, but he not satisfied with it, but

EVIDENTIARY HEARING, VOL. I 11-16-05 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION

HENRY W. SKINNER

Petitioner, vs.

* NO.2: 99 - CV - 4 5 * * * * *

~(Q~W

DIRECTOR TDCJ-ID GARY *

JOHNSON, et al ** Respondents.

Amarillo, Texas * November 16, 2005

EVIDENTIARY HEARING BEFORE HON. CLINTON E. AVERITTE U. S. MAGISTRATE

(VOL. I) APPEARANCES:

For Petitioner:

MR. DOUGLAS ROB INSON Skadden, Arps i Slate, Meagher & Flom 1440 New York Ave. NW Washington, D.C. 20005

MR. ROBERT C. OWEN Owen & Rountree

P.O. Box 40428

l, lJ ~-.

Austin, Texas 78704 For Respondents:

MS. KATHERINE D. HAYES Office of the Texas Attorney

General

Capital Litigation Division P. O. Box 12548 Austin, Texas 78711

MS. GEORGETTE PATRICE ODEN Office of the Texas Attorney

General

P. O. Box 12548 Austin, Texas 7B711

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

MS. MARGARET SCHMUCKER Office of the Texas Attorney

General

postconviction Litigation Div. P. o. Box 12 5 4 8

Austin, Texas 78711

**** (See Last Page)

Proceedings recorded by electronic

sound recording,

transcript produced by transcription service.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 I-N-D-E-X 2 WITNESSES CALLED BY PETITIONER 3

4 5

DEBBIE ELLIS

Vol.

Paqe 21

Cross by Ms. Schmucker............... Re-Direct by Mr. Owen................ Re-Cross by Ms. Schmucker............ Re-Direct by Mr. Owen................

I I I I I

JAMES HAYES Direct by Mr. Owen................... Cross by Ms. Schmucker............... Re-Direct by Mr. Owen................

I I I

54 65 70

VICKIE BROADSTREET Direct by Mr. Owen................... by Ms. Schmucker............... Re-Direct by Mr. Owen................

I I I

73 77 78

JOHN MANN Direct by Mr. Owen................... Cross by Ms. Hayes...................

I I

79 91

HAROLD COMER Direct by Mr. Robinson............... Cross by Ms. Hayes...................

I I

178

Direct by Mr. Robinson............... I

209

Di rec t by Mr. Owe n. . . . . . . . . . . . . . . . . . .

34 47 50 52

7 8

Cross

11 12 13

15 KENNETH W. FIELDS

16 17

ANDREA REED

Re-Direct by Mr. Owen................ II

225 257 290

DR. WILLIAM LOWRY Direct by Mr. Robinson............... II Cross by Ms. Oden.................... I I Re-Direct by Mr. Robinson............ II Re - Cross by Ms. Oden................. I I Re-Direct by Mr. Robinson (Rebuttal). III

291 315 372 379 817

Direct by Mr. Owen................... I 18

Cros s by Ms. Hayes................. ~ . I I

19 20

21 22 23 24

WILLIAM THOMPSON Direct by Mr. Robinson.. ............. II

Cross by Ms. Oden.......... ~ .. . . . . . .. I I

385 407

25 BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 GARY TAYLOR Direct by Mr. Owen...................

II II II II'. II

444 459 486 487 488

I II I II

538 600 630 634 707 713 715

DR. MICHAEL CHAMALES Direct by Ms. Oden................... Cross by Mr. Robinson................ Re-Direct by Ms. Oden................

II II II

495 509

DR. WILLIAM WATSON Direct by Ms. Oden................... Cross by Mr. Robinson................ Re-Direct by Ms. Oden................. Re-Direct by Ms. Oden (Rebuttal).....

III III III III

638 680 705 716

JOHN MANN Direct by Ms. Hayes.................. Cross by Mr. Owen.................... Re-Direct by Ms. Hayes...............

III

721 740 745

GERRY DOUGLAS Direct by Ms. Hayes.................. Cross by Mr. Owen....................

III

I II

749 754

Direct by Ms. Hayes.................. I I I Cross by Mr. Robinson................ I I I

756 768

Cross by Ms. Schmucker.... ~ . . . . . . . . . .

Re-Direct by Mr. Owen................ Re-Cross by Ms. Schmucker............ Re-Direct by Mr. Owen................

DR. WILLIAM SHIELDS Direct by Mr. Robinson............... Ms. Oden..................... Re-Direct by Mr. Robinson............ Re-Cross by Ms. Oden.................

Cross by

III

Re-Direct by Mr. Robinson (Rebuttal). III Voir Dire by Ms. Oden................ I II Re-Direct by Mr. Robinson (Cont'd.).. III

7 8 9

WITNESSES CALLED BY RESPONDENT 10 11 12 13 14

15 16

17 l.

I II I II

532

ia' 19 20

HAROLD COMER

21 22 23 24

CONNIE LOCKRIDGE Direct by Ms. Oden................... Cross by Mr. Owen.................... I Ms. Oden................ Re-Cross by Mr. Owen................. Re-Direct by

III I I III III

769' 784 787 789

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1 2 3

TERRY YOUNG

Direct by Ms. Oden................... I I I Cross by Mr. Robinson................ I I I

CONNIE NEIGHBORS

790 798

Ms. Oden.................. ." II I

799

KATIE GERHARDT Direct by Ms. Hayes.................. III Cross by Mr. Owen.................... III

813 820

TRACEY JENNINGS Direct by Ms. Hayes.................. III Mr. Owen.................... III Re-direct by Ms. Hayes............... III

822 828 829

Direct by

4 5 6

Cross by

8 9

10 11 12 13

15 16

17 18

19 20

21 22 23 24

25 BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

E-X-H-I-B-I-T-S

PETITIONER'S EXHIBITS

2 3

7 Letter to Comer from Skinner dated 6-25-94

II II II

405 Sus.

9 Court Order for Release

10 Medical Records of Coronado Hospi tal

I I

of Records

8 Letter to Comer from

Skinner

405 Sus

Comer dated 6-24-94

dated 9-27-97 to Police

6 Letter to Skinner from

11 Inmate Jail Records

I I

12 Skinner Prescription Records II 13 Affidavit of H. Comer II 15 Affidavit of Lori Brim II 18 CV of Dr. Lowry

22 Affidavit of J. Hayes

26 McMinn let ter to GeneScreen

III III

28 Orchid Cellmark Disc.

II I

29 Aff idavi t of Dr. Shields 30 CV of Dr " Shields 31 FBI Protocol 3-15-04

III III III

32 CV of Dr. Wm. Thompson

25 GeneScreen report dated

2-6-01

7-20-00

Response

l, ft'

1~:

19 20

21 22

33 Article written by Dr. Thompson 34 Artic Ie written by Dr. Thompson 35 Article written by Dr. Thompson 36 Article written by Dr.

Thompson 38 Letter to John Mann dated

8 - 16 - 00 (DNA Testing) 40 Pampa News Article

41 Amarillo Globe article 42 Transcript of Arraignment

43 Excerpts of Show Cause

Marked Admi t ted

299 311 297 311 2 2 4 WD 133 141 223 223 223 223 223 223 110 223 223 223 223 Sus. 304 305 310 311 223 Sus. 635 638 635 638 636 636 676 679 636 637 636 637 385 405

1 Affidavit of Andrea Reed

2 Statement of Andrea Reed 4

Vol.

I I II II

388 Sus. 4 0 5 WD 305 311 89 89

311 312 312 312

Hearing

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

73 75

Supplemental Inv. Report

77 78 79

Max Courtney's Report I

80 81

Ske t ch by Dr. Thompson I I

Affidavit of M. Kent Sims II

Morse Burrough's Report I I dated 1-1-94

5 6

Supplemental Report by III Dr. Shields

Affidavit of Harold Comer I Morse Burrough's III

Excerpt from Robert III

RESPONDENT'S EXHIBITS 8

1 Andrea Reed Recanting

Statement to Police by

13 15

Jessica Reed's statement dated 1-1-94 Affidavit of John Mann CV of Max Courtney

Affidavit

16 17

15 16 17 18 19

25 26 27 28 30 32 33 34 35 35 -A

38 40

41 42

Sus.

627

Z23

223 313 441

313 377

441 703

639

441

Springsteen Trial

223 639

Andrea Reed 1-1-94

Mitchell i s Police Report dated 1-3-94 Notes of Connie Brainard Brainard Police Report dated 1-6-94 Affidavit of Wm. Watson CV of Dr. Wm. Watson Dr. Peacock's Protocol Letter to Gene Screen dated 7-20-00 Letter to J. Mann 11-21-00 Statement of Facts Statement of Guilt Bad Acts List Video of Skinner Statement Transcript of Videotaped

Statement

Vol.

III I

III III III III III III III III III III II I III III III

II Skinner Medical Records II CV of Dr. Chamales Process I II Overheads of Testing III Clerk Order 7-21-95

Marked Admi t ted 258 258

811 811 79

756 Sus. 778 776 782 679 641 723

779 777 784 679 641 724

585

727 737 738 735 795 795 305 497 656 809

727 738 739 745 796 796 311 498 656 810

25 BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11 - 16 -05

P-R-O-C-E-E-D- I-N-G-S

1 2

THE COURT: Calling for purposes of an

4 evidentiary hearing, Case No. 2:99-CV-45, Henry Skinner vs. Douglas Dretke.

Petitioner ready?

MR. OWEN: Petitioner is ready, Your Honor.

7 This is Robert Owen for the petitioner. MR. ROBINSON: And Douglas Robinson for the

9 petitioner, Your Honor. THE COURT: And the record will reflect that

11 the peti tioner, Henry Skinner, is present in court. 12

MR. SKINNER: I am.

THE COURT: Respondent?

MS. HAYES: The respondent is represented by

15 Katherine Hayes, co-counsel, Georgette Oden and Margaret

16 Schmucker.

17 Before we begin, Judge, we've got four ,,

1~ obj ections to the hearing. 19

THE COURT: Okay.

MS. HAYES: The first one is, of course, this

is still an unexhausted writ.

It's never proceeded

22 through the state court in any kind of procedurally 23 correct manner so we obj ect in general to the hearing'

24 being held.

25 The second objection is again that unexhausted BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972~596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 evidence argument that we raised in some of the motions 2 right before - - well, I guess it was last week.

3 THE COURT: What's the difference in that and 4 what you just said? MS. HAYES: WellĂ&#x; the first objection is the

5 6

whole wri t in general has not been exhausted.

The

7 second one is for new evidence that they're trying to 8 present that's never even had a chance to go into state

9 court in any manner whatsoever, so that was like the 10 testimony of Gary

Shields.

Taylor, William Thompson, Bill

We had covered some of those in the wri t ten

12 obj ections that we had fi led before. 13 THE COURT: Other than what the Court of

14 Criminal Appeals heard on direct appeal, nothing has

15 been considered in state court, on the merits? 16

MS. HAYES:

On the merits, you're correct.

17 Our third obj ect ion is again, just to preserve it, is 18 we're going to raise our Martinez obj ection -19

THE COURT: Which is?

MS. HAYES: Which is for the witnesses - - if

21 they're trying to present witnesses to prove prejudice 22 before they've proved deficiency that Martinez was 23 saying those witnesses would essentially be irrelevant 24 until deficiency is proven. 25

THE COURT: All right.

That one is overruled.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 MS. HAYES:

The fourth obj ection or actually

make clear there is no way

2 fourth point, we just want to

3 that we are impliedly or consentedly or expressly 4

agreeing to any new claims being raised.

Banks objection.

It's sort of a

I don' t want to be surprised later by

6 new claims being raised that they say were developed at the hearing.

If they are raised, they should be

8 addressed later after the hearing is over.

THE COURT: Well

MS. HAYES:

It's just a point of record.

11 don' t want to have - - I don't want to be cited as saying impliedly agreed to something when maybe I didn' t

12 I have

13 catch it. THE COURT: Well, your obj ection to the

15 record - - until I - - some new claims are raised, I don' t

16 know if there's anything the court can rule on. MS. HAYES: Actually, Your Honor

17 ,,

THE COURT: I don' t know whether your

1~: 19

obj ection preserves error or not.

Either it does or it

20 doesn' t, and you'll need to obj ect when they raise it or

21 not. 22

MS. HAYES: Wel l, it was worth a shot, and I

23 might not recognize that they're suddenly starting to 'go 24 into a new claim area so I just wanted to have that down

25 on paper before we got started. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

The fifth thing, though not an objection

MS. HAYES: Well, it's not an objection, but

3 we're asking the court to go ahead and strike ; 4 respondent's stipulations that was, I believeĂ&#x; Docket 5 En t ry 130. 6

THE COURT: Why?

MS. HAYES: Well, we're still going to try to

8 not obj ect to as much evidence as possible, but I

9 believe some of the affidavits and things that we had

10 previously agreed to stipulate to, they might involve 11 witnesses that might no longer be testifying, so we just

12 want to go ahead and rai se the obj ect ions as we see fit, 13 so we ask the court to please go ahead and strike 14 respondent' s stipulations. 15

THE COURT: Well, on the first two, just for

16 the record, what state court remedies are available to

17 the petitioner now or as of the time then? 18

MS. HAYES: Well, Your Honor, since the

19 legislators changed the habeas statute to specificallY 20 let those few capital defendants go back who were

21 originally kicked out as untimely, we believe the

22 process is open for him to go back to state court, if 23 the federal -- well, when we tried it before that was'

24 when the federal writ was still pending, and the court 25 just held it in abeyance, and then, of course, the state BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANOĂ&#x; TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 court kicked him out, but if you went back in a 2 procedurally correct manner, I guess now you could hold

3 it in abeyance, given Ex parte Soffar, and let him go 4 back to state court to go ahead and exhaust the claims

5 i ike he should. THE COURT: Well, on that I'm going to

7 overrule those objections because I feel like the 8 record - - it's been developed to show that the state

9 court has had ample opportunity to consider his claims

10 and they refused, and the record will speak for itself 11 as far as those proceedings. Now what was the last

12 thing you had? 13

MS. HAYES: The part about striking?

THE COURT: Stipulations -- what is

15 petitioner's position on that? MR. ROBINSON: Your Honor, I think what Ms.

17 Hayes is doing is trying to create symmetry here between

what our position was and her position. I don' t have 19 any objection to her withdrawing her stipulation, und~r

1~'

20 the terms that she has specified because that's 21 essentially what our position is. 22

MS. HAYES: We still agree to the authenticity

23 of all the documents like we said on the telephone

24 conference. 25

THE COURT: All right. Anything else? BETTY TATE, 3101 TOWNBLUFF DR.. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 That's it for now.

MS. HAYES:

THE COURT: Very good. Now, I understand from

3 our telephone hearing conference prior to this that both

4 sides want the rule invoked. Can you identify all your 5 witnesses and have them stand. As your name is called,

6 please stand. MR. ROBINSON: Your Honor, we want the rule

invoked wi th respect to fact wi tnesses.

We have a

9 stipulation that expert witnesses can remain in the

10 courtroom. THE COURT: When you identify the witness,

12 identify the ones who are experts. 13 MR. ROBINSON: I'll just go down the row here. 14 William Thompson is an expert. Remain standing, sir.

THE COURT:

MR. ROBINSON:

Gary Taylor is an expert, Debra

fact witness, Andrea Reed is a fact witness,

17 Ellis is a

18 Vickie Broadstreet - ~ do I have the last name correct? 19

MS. BROADSTREET: Yes.

MR. ROBINSON:

She is a fact witness.

Mr.

21 Hayes, James Hayes, is a fact witness, Cliff Carpenter, 22 fact witness, Albert Maggard, a fact witness, Harold 23

Comer, fact witness, Ken Fields, fact witness.

Those'

24 are our witnesses, Your Honor. We have some expert 25 witnesses who are not here yet. And Mr. Mann, as you BETTY TATE, 3101

TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 know, who is temporarily -THE COURT: All of you come forward through

3 the gate and kind of line up along the jury rail there, 4 please. And for respondent, do you have any wi tnesses

5 present? MS. HAYES: Not present at this time. We told

7 ours to shoot for tomorrow. THE COURT:

If each of you will raise your

9 hand and take this oath, and then when I finish

10 administering the oath, I'll (inaudible) but I'll point 11 in your direction and please state your name and say "I

12 do, Ã&#x; and we'll get it on the record.

13 (Wi tnesses Sworn) 14

THE COURT:

MR.

THE COURT:

MR.

COMER:

Starting with you, sir. I do. And

your name?

Haro i d Come r .

MR. FIELDS:

MS. REED: Andrea Reed.

MS. BROADSTREET: Vickie Broadstreet.

MR. MAGGARD: Albert Maggard, I do.

MR. TAYLOR: Gary Taylor, Your Honor, and I

I do. Ken Fields. I do I do.

23 do. 24

MR. HAYES: James Hayes ,Ido .

MR. CARPENTER:

I do.

Cliff Carpenter, Jr.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

MR. THOMPSON: Wi I 1 iam Thompson, I do.

THE COURT: All right.

Mr. Carpenter and Mr.

3 Thompson are experts? MR. ROBINSON: No, Mr. Taylor and Mr.

5 Thompson. THE COURT:

Taylor and Thompson?

7 MR. ROBINSON: Right. 8 THE COURT: Okay. The rule has been invoked. 9 Mr. Comer and Mr. Fields are familiar with that ruleĂ&#x;

10 but what that means is that your testimony is to be 11 based upon what you know, cannot be tailored or based

12 upon what you hear the other witnesses testify to in that reason you will be

13 court during this hearing. For

14 excluded from the courtroom while the testimony is being

15 given. In addi tion to not being able to be present in

17 court and hear the testimony of the witnesses, I'll

18 further instruct you that you're not to discuss your 19 testimony with any of the other witnesses or with any

20 other person, save and except the attorneys in this 21

case.

You'll be under this rule until the court advises

22 you that you are excused, and if you are excused from 23 the rule and allowed to go, you're still not to discuss 24 your testimony wi th other wi tnesses who may still be

25 under the rule. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 If anyone attempts to talk to you, approaches 2 you or attempts to talk to you about the case, advise 3 themtha t the court has instructed you not to talk about

4 your testimony, and if they persist ,then of course

5 report that to a court security officer. 6

rule is that

Now, the exception to the

you can

talk to any of these lawyers about your testimony.

That

8 is Mr. Owen, Mr. Robinson, Ms. Hayes, Ms. Schmucker and Ms. Oden.

If you can talk to any of these lawyers about

10 your testimony, and I'll instruct the lawyers the same, 11 be sure that you do it outside the presence of any other 12 witness.

13 The parties have agreed that expert witnesses 14 are not subj ect to the rule t but you're not to discuss 15 what you hear in the courtroom with any of these fact 16 witnesses, or with anyone else, and that's Mr. Thompson

17 and Mr. Taylor. r-

1~' We have the benches out here, which are iess 19

than comfortable.

Don' t leave the bui lding but as far

20 as get t ing up and walking around, as long as you - - we

21 don' t have a snack bar (inaudible) ... cal i the

22 attorneys. . . 23

Everybody understand? Then you all may be

24 exhausted (inaudible) 25

MS. HAYES:

May we approach and go off the

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANOĂ&#x; TX. 972 -596 - 9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 record for just a moment?

2 (Sidebar Conference) THE COURT:

(Inaudible). Call your first ,r

4 witness. 5

MR. OWEN: We call Andrea Reed.

THE COURT: Right up here, ma' am. Have a

7 seat. State your name and spell your last name for the

8 record, please. 9

THE WITNESS: Andrea Reed, R-e-e-d.

THE COURT: Are you under subpoena?

THE WITNESS: Yes, sir.

THE COURT: And the attorneys have advised me

13 here awhile ago that when you had contact with the 14 attorney from the state, that you made a comment, a

15 statement or what have you, to her that you need an 16 attorney. Would you tell me about that? THE WITNESS: Well, I'm not sure if I door

17 18

not.

I can' t afford one and I might need the court to

19 appoint me one and I need to speak with one before I 20

testify or not.

I don't know.

I know from past

21 experience if I go into court without an attorney I

22 (inaudible) . 23

THE COURT: Well, you're a witness in this

24 case. Now what is it about being a witness that makes

25 you think you need an attorney? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARINGt VOL. I 11-16-05

THE WITNESS: Because of my change of

2 testimony. THE COURT: You testified at the trial back in

"-',.

4 ' 98? 5

THE WITNESS: Yes, sir.

THE COURT: And you were under oath?

THE WITNESS: Yes, sir.

THE COURT: And yOU've given a statement since

9 that time? 10

THE WITNESS: Yes, sir.

THE COURT: And what is it you fear?

THE WITNESS: Being prosecuted for perj ury.

THE COURT: All right ~ And you said you can' t

14 afford an attorney? 15

THE WITNESS: No, sir.

THE COURT: Are you working?

THE WITNESS: I've worked three hours a day

16' part-time in Pampa at a hot dog stand. 19

THE COURT: Do you own your house or rent it?

THE WITNESS: I own my home. We i i, I'm paying

21 for it. 22

THE COURT: Have you got any bank accounts?

THE WITNESS: No, sir.

THE COURT: Have you tried to hire an

25 at torney? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

THE WITNESS: I haven't needed to hire an

2 at torney (inaudible). 3

THE COURT: How much money - - cash on hand do

4 you have right now.

5 THE WITNESS: Right now? 78 cents. 6 THE COURT: All right. And other than your 7 house do you have any real estate holdings, any gold,

8 silver, or jewelry, stuff like that? 9

THE WITNESS: No, sir.

10 THE COURT: Based upon our telephone 11 conferences earlier, it's my understanding that both

12 counsel and the parties, not only are not opposed to it, 13 but made the suggestion that the court might appoint her 14 an at torney. 15

MS. HAYES: That's correct, Your Honor.

MR. OWEN: That's correct, Your Honor.

THE COURT: I'm going to appoint the federal with

18 public defender's office to represent you

to your testimony here in this proceeding.

respect I'm going 'to

20 have to call that lawyer (inaudible) and we will do that 21 this morning.

22 You can step down. If you'll wait out in the 23 hallt you're still under the rule, don't talk to anybody

24 about your testimony, except the attorneys that need to 25 talk to her. There will be some paperwork involved in BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. III - 16 - 05

1 this case so what I'm going to need is a -- I've got a copy of her trial testimony?

(inaudible) .

MS. HAYES: Ye s, Your Honor. We've given you

a set of respondent's exhibits.

She's actually

5 testified three times at the trial court, two pretrial

6 hearings and then the trial testimony, and all three of

7 those exhibi t s are in our folders, 3, 4 and 5. Her 8 police statement, her recanting affidavit -THE COURT: Okay. Well, when the attorney

10 shows up we' II take a little break and (inaudible) MS. HAYES: Exhibi ts 1 through 6 for

12 respondentÃ&#x;I believe. THE COURT: You can step down, ma' am, and wai t

14 out in the hall. 15

MR. OWEN: Your Honor, we would call Ms.

16 Debbie Ellis. 17

THE COURT: Debbie Ellis. Have a seat. State

t I'

1~ your name and spell your last name for the record. 19

THE WITNESS: Debra Ellis, E-I-I-i-s

MR. OWEN: May I inquire, Your Honor?

THE COURT: Yes.

22 23 24

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11 - 16 - 05 DEBRA ELLIS. Called by Petitioner (Sworn)

1 2

DIRECT EXAMINATION

5 BY MR. OWEN: 6

Good morning, Ms. Ellis.

Good morning.

Ms. Ellis, where do you live?

In Pampa, Texas.

How long have you lived there?

25 years.

Are you employed?

Yes , sir.

What do you do for a living?

I work for National Healthcare.

I deliver medical

16 equipmen t . 17

Are you here today pursuant to a subpoena?

Yes, sir.

Ms. Ellis, I want to direct your attention tb the"

20 time frame 1993 to 1995 period, about ten, eleven, ago . At that time were you living in

21 twelve years

22. Pampa? 23

Yes, sir.

And where did you live as of January the 1st of

25 1994? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 A

January the 1st, 1994 I lived right next door to

2 my grandmother, my neighbor who I called my grandmother

3 at 828 Locust. 4

Tell me a little bit about the neighbor that you What was her name?

5 called your grandmother .

Her name was willie Gardner when I met her, and she

7 married a few years later Robert Donnell. 8

And she was not in fact your blood relative; is

9 that right? 10

No, she wasn' t . She was my ne ighbor (inaudible).

How would you describe your relationship with her?

She was like my mother. Very close.

How often do you imagine you had contact wi th her?

14 Was that a daily thing? 15

Every day, two or three times a day.

And you mentioned that .at some point she married a

17 man named Robert Donnell. How long had - - as of January t

1~' the 1st of 1994, how long had you known Ms. Gardner? 19

1987.

I had known her since

I did not get close to

like 1989.

20 her, really close to her until

21 Q Was that the time that you moved in next door to

22 her, or she to you? 23 A Our family, we owned that land for several years; 24 She actually moved to that land next door. That's ours. 25

I see.

Directing your attention again to the first

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

week of January of 1994, what sort of vehicle did Mr.

Donnell drive at that time, if you remember?

A He drove a little bitty like a Datsun or Toyota or

one of those little bitty trucks that - - nothing

special.

It was just a plain Jane truck. Nothing

special about it. It was just an old beat up truck. Q So this was not a shiny new truck, this was -A Oh, no, it was a clunker.

Q In the first week of January of 1994 did you

observe Mr. Donnell doing anything unusual with this

truck?

A Oh, ye ah .

Q Could you tell us about that, please?

A It was kind of cold outside and he was out there

and he had taken all the carpet out of the truckt off

the, you know, that had lined the floor boards and

everything. He had taken all the carpet out of there,

t',i. I' 18 ~~"

and he was out there wi th one of these big old five

you know, that you get from -- oh, like

gallon buckets,

the grocery

like Pine Sol or something - - it smelled like Pine Sol.

He had Pine Sol and he was scrubbing inside the truck

and all the seats and everything, he took the seats out

of the truck i took everything out of the truck.

Anything that would come out of the truck, he took out

store or food places or whatever, and he had

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 and scrubbed it. 2

And once he had taken all these things out of the

3 truck and scrubbed itt did he also hose out the inside? 4

Oh, yeah ,.

After that did he put the seats back in to your

6 knowledge? A

He put the seats back in and left the carpet out i

8 and it was just like metal with a hard floor in there. 9

Had you ever seen Mr. Donnell clean his truck in

10 this fashion before? 11

No.

Had you in fact ever seen him clean the truck at

13 all before? 14

No.

How long did it take him to clean the truck in this

16 fashion? 17

He was out there for a few hours.

Now let me take you back a moment and ask you about

lÂż:l

19 how do you know that this happened in the first week of 20 January of 1994? 21

It was right before my grandmother's birthday. My

22 grandmother's birthday was January the 3 rd. 23

And how do you recall that it was close to your

24 grandmother's birthday? 25

Because it just

seemed kind of odd to me that he

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 did it right after everything happened, meaning Twila

2 and the boys being killed. 3

Meaning being murdered on January the 1st of 1994?

Correct.

Were you in fact - - when you saw him washing his

6 truck and so forth, were you on your way to get to the

7 house that he shared with MS. Gardner? 8

are you doing? II

heck

I was over there and I was asking "What the

"I'm cleaning my truck."

10 Q Do you remember seeing Mr. Donnell on January the 11 1st, the day that Twila and her sons had been murdered?

12 A I saw him (inaudible). I didn' t speak to him all 13

the time.

In fact, I spoke to him in passing but as far

14 as 15

Were you over at their house on that date?

Yes.

Were you in the same rOom with them?

Oh, you're passing by (inaudible).

I mean we

19 were - - I mean he was always around the house or 20

whatever.

He wasn't right there.

Was he crying? MS. SCHMUCKER:

Obj ect ion, Your Honor.

He's

23 leading his witness. 24

MR. OWEN:

The question was he crying, I don't

25 think that's leading, Your Honor. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

THE COURT: Sustained.

1 2

(By Mr. Owen) Can you describe his demeanor on the

31st of January of 1994? A

Normal. He was not upset, he had not been crying.

5 I mean he acted like it was a normal day. Just an 6 ordinary norma i day for him. He had been drinking, as

7 usual. 8

All right. within a relatively short period of

9 time, let's say two weeks after you saw Mr. Donnell 10 cleaning out his truck, did you see him doing anything

11 else to the truck? 12

Yes, I did.

What was that?

He was painting his truck.

How did he paint it? What did he paint it with?

A paint brush and a spray can.

You mentioned your relationship with Ms. Gardner.

1~ I want to ask you a little bit more about that 19

relationship.

Did Ms. Gardner at any time confide in

20 you about the events of her marriage to Mr. Donnell? 21

No.

Did she ever tell you that Mr. Donnell said

23 something to frighten her 24

MS. SCHMUCKER: Obj ection. Calls for hearsay.

MR. OWEN: Your Honor, I'm going to establish, BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARINGt VOL. I 11-16-05

1 if I may ask another question, that at the time the was still under the 2 witness made these statements she

3 exci ted, emotional state that they had caused in her, so

4 it's not hearsay, it's under Rule 803(3), an excited 5 utterance and it should come inĂ&#x; if I may be allowed to

6 ask the question. THE COURT: You can ask her whatever predicate

8 questions you want but the hearsay objection is

9 sustained. MR. OWEN:

(By Mr. Owen)

All right, Your Honor.

Did she ever make any statements to

12 you when she was upset? 13

Yes, she did.

And what was she upset about at the time that she

15 talked to you? 16

One particular time he -- Robert had a gun, and he

17 threatened to MS. SCHMUCKER:

Objection, Your Honor~

19 don' t know whether this comes from her personal

20 knowledge or whether this is what she was told, so I'm 21 going to re-raise the hearsay objection. sustained. THE COURT: 22 I'm ' Just a moment, Your Honor. MR " OWEN: 23

24 sorry.

25 (Short Pause) BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

(By Mr. Owen) How big a man physically was Mr.

2 Donnell? 3

Very big guy.

Relative to Ms. Gardner, was heavier, taller,

5 shorter? 6

Three times her size. He was a big guy.

Do you know whether he owned a knife or a gun?

Yes, I knew he owned a gun.

Where did you see this gun?

It was in the closet.

In the closet where? It m sorry?

It was in - - he had the gun in a closet.

You never saw him carrying the gun?

Not carry the gun, no.

How about a knife? Did you ever see him with a

16 knife? A

He carried a knife.

18Ă?'

Did you ever see him threaten anybody?

Yes, I did.

Who was that?

Clark.

For the record, who is Clark?

Tha t' s grandma's

17 ~

it was Grandma Willie's

24 grandson, Clark. 25

What's his last name?

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596~9442

EVIDENTIARY HEARING, VOL. I 11 - 16 - 05 1

Gardner.

I'm sorry, Tally.

2 Q After January the 1st of 1994 when Twila and her 3 sons were kil led, did Mr. Donneii begin to drink more? .. 4

Oh, yes.

Tell us about that. How much more?

He drank every day. I

bet he bought a

bottle of

7 vodka every day. And when he eventually - - let me ask you a

question.

Did he eventually separate from Ms. Gardner,

10 or did they still 11 A Yes. 12 Q And after he separated from Ms. Gardner, did you

13 have occasion to go over to the .house and help clean up? 14

Oh, yeah. We went over there and cleaned - - he had

15 a boat over there, he had all kinds of other stuff, and 16 we was cleaning out the garage, and we cleaned out the 17 little shack in the back, and the chicken pen and

18 everything, and we found bott les stashed in whe~e the 19 hen laid her eggs, and we found like eight bottles 20

stashed in a little boat.

everywhere.

I mean there were bottles

I bet we found 50 or 60 bottles.

When you say bott les, you're talking about vodka

23 bottles? 24

vodka bottles.

What kind of temper did Robert Donnell have? Was

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 he a gentle person? 2

No.

could you describe his temper for us, or --

He was gruf f, he was very - - I mean he was not a

nice person.

Did his temper worsen when he had been drinking?

Oh, yeah.

Did you ever see Robert Donnell and Twila Busby

He was rude.

9 together? 10

Yeah, I saw them just like once together and that

11 was -- Twila's father owns a little gas station -- not a 12 gas station but a tire station there in Pampa and I had

talked - - Robert used to work there. He there. He used to go up there and talk.

13 14

said he worked

MR. OWEN: Your Honor, may I have just a

16 moment? THE COURT:

You may.

(Short Pause)

1 8~~

MR. OWEN:

19 20

(By Mr. Owen)

Thank you, Your Honor.

Ms. Ellis, was there a garment, any

21 particular garment that you remember Robert Donnell

22 wearing on a regular basis? 23

Yes.

Could you describe that garment, please?

I t was a - - just i ike a wind breaker jacket that he

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

wore all the time.

Q Do you know what fabric it was made of? Do you

remember that?

A It wasn' t like wool or anything like that. Oh,

gosh, it was kind of like rayon mixed with something

else. There wasn't really much to it, you know. I

can' t think of what it's called.

Q All right. And what color was this jacket?

A It was tan.

"';/'

THE COURT: What?

THE WITNESS: Tan.

MR. OWEN: Your Honor, I'd like to obj ect for

the record that we do have a number of questions that we

would like to ask her, but I understand the court has

sustained hearsay obj ections, but I do want to make sure

the record is clear that we could get testimony that the

declarant was in an excited and emotional state at the

time those statements were made, and we think they would

be admissible under the excited utterance exception, and

2 0

would describe him -THE COURT:

(Inaudible) . When you spoke to Ms. Gardner did

she ever talk to you at a time when she was in an upset,

agitated, emotional state?

A Several times.

(By Mr. Owen)

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

Was that upset, agitated, emotional state

2 relatively close in time to the event that triggered it? 3

Yes.

And was the event that triggered it something in

5 her relationship wi th Mr. Donnell? 6

Oh, yes.

And did she come over to your house to tell you

8 things 1 did she call you over the phone? A

She would call me on the phone and I would go over

there.

She didn' t really drive a whole lot, but I was

11 at her house every day, and called her and talked to her

12 several times a day, but she would also call me now and would call

13 then. If she was upset about something she

14 me. We were very close. MR. OWEN: Your Honor, again, we think that

16 that's -- if I may inquire -17

(By Mr. Owen)

Did she ever tell you that he had

l' tried to choke her? 19

MS. SCHMUCKER: Obj ect ion, Your Honor.

20 still object that there's insufficient predicate to 21 establish that it's admissible as an excited utterance,

22 and also, Your Honor, leading the witness. Sustained. I think you THE COURT: 23

need to'

24 tie it down tighter than that, counsel. 25

MR. OWEN: Your Honor, if I may have just a BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 moment I may be done wi th the examination but I just

2 need to check with my co-counsel, if I may. 3

THE COURT: You may. (Short Pause)

4 5

MR. OWEN:

if I

Your Honor, I just want to

6 may, just a hand full of cases I'd like to cite to the 7

court in support of our excited utterance argument.

8 know the court doesn't have these in front of him but 9

I'd like to make it for the record.

In the case of

10 Anderson vs. The State, the Court of Criminal Appeals 11

said that - - I'm sorry i that is not the case.

not the case I intended to cite.

That is

In fact, Your Honor, I

13 don't have those cases here, so I will - - i do obj ect 14 for the record that we think we've laid the adequate

15 predicate to be allowed to explore this, the things that 16 Ms. Gardner told her about her relationship with Mr. 17 Donnell, that included violent treatment of Ms. Gardner, 18 at tempts to choke her, threats to kill her, holding a 19 gun to her head, and so on, and those are my questions'

20 and we'll pass the witness for cross examination. 21

THE COURT:

Cross?

22 23

24 25

BETTY TATE, 3l01TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 CROSS EXAMINATION

1 2

3 BY MS. SCHMUCKER: 4

Good morning, Ms. Ellis.

I'm Margaret Schmucker

General ' s Office. Could

5 with the Attorney

you explain

6 to me for a moment what your exact relationship was with

7 Mr. Donnell? He apparently was not your natural

8 grandfather or natural father? 9

No. He was married to Willie Mae Donnell, who was

10 like my grandmother. 11

So your familiarity with him was just simply as a

12 resul t of her relationship wi th him? 13

Correct.

And so how long did you actually know Robert

15 Donnell before December 31st of 1993?

Oh. almost three years. 17 Q How old were you do you think when Mr. Donnell and if 1K Ms. Gardner married?

19 A I was 21 or 22. 20 Q And is that when Mr. Donnell started living with 21 Ms. Gardner then?

2~ A Correct. 23 Q And you weren' t i iving with them but you were next 24 door? 25

Correct.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

Were you working then, or were you in school?

I was in school and working.

How long

were you away from the house a lot?

Normally

I would normally leave to go to work

5 and come home. 6

What kind of work day did you have? I mean in

7 terms of what time did you leave and what time did you

8 come home? 9

I didn't leave my house until 10:45 in the morning.

Okay. And then you returned home

At 2:00 o'clock.

And then did you go to school?

I did. No, I'm sorry. I went to school at night

from work?

14 school. 15

Were you going to school every evening?

No.

So just some evenings of the week?

Only once a week.

Only once a week. Okay.

So you were working about

20 half the time in the middle of the day basically what,

21 over the lunch hour? 22

Correct.

And then you were going to school one night a week?

Correct.

What were you going to school for?

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11 - 16 - 05 A

I was going to get my prerequisites, math,

2 English -3

Okay, for just a general degree?

Right.

And what about the weekends? Did you work

6 weekends? 7

I worked on Saturday.

Did Mr. Donnell work as far as you know?

No.

So he was home - - would he be home then a lot?

He was but he went out and did his things

whatever he did, whatever work he did.

and did I didn' t follow

13 him so I don't know exactly what he did. 14

So in reali ty your contact wi th Mr. Donnell was

15 pretty limited because you were -~ you spent your time

16 at work and school and he was out running around. You 17 had more contact with Ms. Gardner than maybe you did l,

18 with Mr. Donnell. Would that be fair? I did have more contact with her but it wasn' t

i imi ted. He was there when I was there a lot.

I'd say

21 probably 80 percent of the times i was there. 22

What then was the nature of your relationship with

23 Mr. Donnell? Good, bad -24

At first it was okay. He first seemed to be an all

25 right guy, but then it was like he did not have anything BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 when he met my grandmother, nothing, not even a car.

2 She bought him a car and he traded that car in for the

3 little truck, and he traded the little truck in for a

4 big truck, a boat. Not an RV or a bus 5

Excuse me. Now we're talking more today, your

6 relationship with him now? 7

I'm saying he didn' t have anything. That just

8 popped up into my head. 9

Mr. Donnell was still living

with Ms. Gardner on

1 0 De c e mb e r 3 1 s t 0 f 1 9 9 3 ? 11

Yes.

Were you living next door at that time in his life?

Yes.

Were you there when Mr. Donnell returned home from

15 the party that following morning, the

early morning

16 hours of January 1st? 17

Yes, I was home.

Were you awake?

Was I awake? I don't recall.

I don't knowi f I'

20 was awake or not. 21

So you didn' t - - you don' t recal I seeing him come

22 home? 23

No, I don' t .

Did you see him the next day then?

Yes, I did.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

At that time did he have any cuts or bruises on him

2 that would have been unusual? 3

No, he had a long sleeved shirt on and his

4 coveralls on.

5 Q So he was just wearing normal clothes and you 6 didn' t see anything out of the ordinary of his at tire or 7 in his - - and whether or not he was inj ured or had any

8 bruises or anything? 9

No.

Were you also there when the

police arrived to tell

11 Mr. Donnell that Twila and her sons had been murdered? 12

Yes.

About what time was that?

I don't recall exactly what time it was.

Was it in the morning, or was it after lunch?

I don't recall.

remember the time it was.

1''-

Q But had you gotten up the morning of --

A Yes, I had got ten up. I do not recall if I had

I know I was there.

I just do not

been to work already or not. I don' t think I had. It 21 was early that morning, I believe, but I'm not positive.

So you were awake but you don' t know if it was

23 sometime in the morning or 24

In the morning on the 1st.

On the 1st. Did you happen to hear any part of the

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

conversation that the police had with Mr. Donnell?

A They had told him that his family had been murdered

and he said okay, and they - - I'm trying to recall if

they asked him - - they didn't ask him where he had been

or anything like that. They just come by to tell him

wha t had happened.

Q So they didn' t ask him if they knew where she was

the night - - Twila Busby was the night before?

A Yeah, me and my grandmother were talking while they

were talking to him, because I was like what's going on,

because I didn't know about it yet.

Q So the answer then would be no, it's your

recollection the police did not ask him where Twila

Busby was the evening of December 31st and he did not

tell them where Twila Busby was the evening of the 31st?

THE COURT: Hold on. Are you a wi tness, sir?

UNIDENTIFIED SPEAKER: Uh, no, sir.

A Could you repeat that, please?

recollection then the pol ice, when they came to talk to

Mr. Donnell, they did not tell him that Twila Busby

where Twila Busby had been the night before, and he did

not tell the police that he knew where she had been the

night before; would that be a fair statement?

A Well ,he knew where she was. He was at the party.

(By Ms. Schmucker)

The question is that to your'

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11- 16 - 05

1 He was at the same party she was at. 2

But the question is did he tell the police that?

I don' t really recall what it was he said.

So the answer then is to the best of your

5 recollection would be no, he did not tell them. Did you own a car at that time, December of

7 ' 93 and January of ' 94? 8

Yes.

And Mr. Donnell owned a car as well, a pickup

10 truck? 11

He owned a truck.

And you said that he washed it on the 1 st and then

13 a couple of weeks later he painted it? 14

Correct.

Have you ever heard of a concept called a New

16 Year's resolution? 17

Yeah, I have.

Okay. Isn't it at least possible that Mr. Donnell

19 was washing and cleaning out his car as part of a New .

20 Year's resolution? 21

No.

And why would that not at all be possible?

How could he possibly do that when he wasn' t the

24 type of person to do that? 25

And you know that because you spent SO much time

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

4 i

EVIDENTIARY HEARING, VOL. I 11-16-05 1

wi th him?

A Yes.

Q And how do you know that he wasn' t - - I mean that's

sort of an internal thing

that for sure?

already told you that.

and my grandmother talked all the time.

there all the time.

'l,

Because I was over there all the time.

I have

I was there all the time.

I was over

Me and my kids was over there - - or

my kids were over there.

Q So in your opinion he's just not the kind of person

who would ever say, ffYou know, it's New Year'sĂ&#x; I'm

going to get things cleaned up. ff

A And take the carpet out of

out and wash it down and spray - - I don't think so.

16 17

Q Well, the truck was in fact an older vehicle, wasn't it?

A Yeah, it was --

to him. How could you know

his truck and rip it all

Q And it was in pretty bad shape, wasn' t it? A Well, it wasn' t like all banged up or beat up or

anything.

Q And he had plastic covers on the seats? A No. Q what kind of seats were in the car? A They were just plain old vinyl seats.

It was just a plain old truck.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11 - 16 - 0 5 1

Vinyl seats. Did you ever happen to ride around in

2 Mr. Donnell's pickup truck? 3

No, but I had went out there and got stuff out of

4 the pickup before for my grandma. 5

Did you ever do that after January 1st of 1994?

6 Were you ever in the vehicle after that? 7

No. Never wanted to be.

So you can't say for sure that there was anything

9 unusual in the car that he might have needed to clean up

10 because you never actually saw it i is that correct? 11

I didn't say I never saw inside the truck.

After January 1st of 1994?

I saw inside it.

I was there, right thereĂ&#x; after

14 he did it, and I was there the day he was painting it

15 and saw inside the truck. 16

But did you see anything unusual? Did you see

17 blood spatters when he was doing all that? Did you see 1J anything that looked unusual from the other times that 19 you'd been inside the truck to get things for Willie Mae 20 Gardner? 21

No.

So there was nothing out of the ordinary, except

23 for the fact that he was just cleaning the truck? 24

I would call it an extensive cleaning is what I

25 would call it. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

Wel I, aside from the fact that he was doing

2 extensive cleaning, you didn' t see anything; you didn' t

3 see blood, you didn' t see -4

No, I did not see any blood.

Did Mr. Donnell ever assault you?

Physically or verbally?

Well, did he threaten you?

He did cuss me out several times, yes.

But cussing you out, did he physically threaten

10 you? 11

Like in bodily harm?

Yes.

Not that I can recall, no.

I wasn't scared of him.

THE COURT: Just listen to the question and

15 answer the question, please. 16

(By Ms. Schmucker)

Do you know the defendant, Mr.

17 Skinner? 18

Absolutely not. Is it your position that

Mr. Donnell was involved

20 in thi s murder? 21

Absolutely.

MR. OWEN: Objection, relevance.

MS. SCHMUCKER: Your Honor, I was trying to'

24 establish when she may have come into this opinion and

25 what influence counsel's investigator may have had on BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11 - 16 - 05

1 her opinion. 2

THE COURT: What is your objection?

MR. OWEN: Her opinion about whether Mr.

4 Donnell had anything to do with this crime is not

relevant.

It's also speculative. MS. SCHMUCKER:

I'm not asking her for the

truth of the matter asserted, Your Honor.

I'm just

8 asking her whether she (inaudible). THE COURT: The speculation obj ection is

overruled.

I'll let you (Inaudible).

MS. SCHMUCKER: Thank you.

11 12

(By Ms. Schmucker)

When was it that you started to

13 think Mr. Donnell might have been involved in the

14 murder? 15

January 1st, 1994.

So at the time that he started cleaning out his

17 truck? Would that be a fair statement? "

18~:

No, that was the day that they came and told him

19 about the murders. 20

So right away when the police came and said Twila

21 Busby and her sons had been murdered, you immediate ly

22 thought that he might be someone who was involved? 23

Well, after the way he acted, yeah.

So it was after the way he acted wi th the police or

25 after the way he acted in terms of cleaning his pickup BETTY

TATE, 3101 TOWNBLUFF DR. #923, PLANOĂ&#x; TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 truck up? 2

He didn't clean his truck until after the 1st.

I thought you said

he cleaned it on the 1st.

4 when in fact did he clean his truck out? 5

On the 2nd.

It was a couple of days later.

8 Q Okay. So you started thinking on January 1st, 9 after the police came and you started wondering whether

10 he was involved, what made you think that?

11 A Because of how the person looked. 12 Q So there wasn' t anything about - - I mean you didn't 13 see any blood, you didn' t - - and you didn' t know what 14 time he got home, or where he had been? 15

I knew where he had been.

16 Q But after he left the Mitchell's party you 17 didn' t - - did you know where he had been after that? 18

No, I didn' t .

Did anybody know where he had been after that~

I'm not sure.

If Mr. Skinner's counsel, the state habeas counsel,

22 had come to you a couple of years ago and asked you 23 about this stuff, would you have been willing to come

24 and testify at that time? 25

Oh, yeah.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

You testified that when the police told him that

2 Ms. Busby and her sons had been killed, that he showed Is that a fair statement?

basically no emotion.

No emotion at all.

Was he the kind of man who empathized with other

6 people's hurts and inj uries at all in any way, as a

7 general mat ter? 8

did. did empathize with other people? did in a way. I mean - - my grandmother had

11 mentally and physically handicapped daughter, and she

12 Ii ved wi th them until, you know, she died. Anyway t I 13 mean if something was to have happened to her t or Penny

14 got hurt or something, he was upset about it, so I mean he had emotions.

15 I know

What about just other people then? I mean that's a

special circumstance as to basically his stepdaughter.

1 g:

What about other people?

Okay. Well, one day when my son fell and hurt his

20 leg, he was concerned about him. 21

So he might have showed some emotion in certain

22 circumstances. Did he always show emotion like that 23 towards everybody? 24

Well, I wasn't around him with everybody, but when

25 I was around him he would show emot ions. He would get BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11 - 16 - 0 5 1

angry, he would get mad.

I mean he would be upset.

2 mean he showed emotions. 3

Did he have what is sometimes called a macho

4 attitude about crying? Did he cry

saw him cry.

5 A I

Okay, you've seen him cry. What kind of

7 circumstances did you see him cry? 8

When he was drunk.

What about when he was sober?

I never really saw him when

he was sober.

MS. SCHMUCKER:

I Ã&#x; i i pass the witness, Your

12 Honor. Thank you. 13

THE COURT: Any re-direct?

MR. OWEN: Yes, Your Honor.

15 RE-DIRECT EXAMINATION

16 17

18 BY MR. OWEN: 19

Ms. Ellis, counsel for the respondent asked you

20 about your opinion about whether Mr. Donnell had

21 possibly committed this crime, and asked about the basis 22 for your holding that opinion. Now, I want to ask what, 23 if anything, you know about his relationship with his

24 wife and if that also supported that opinion in your 25 opinion? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

Oh, yeah.

And what were those things?

There were several occasions when grandma and I had

4 talked -5

MS. SCHMUCKER: Objection. Calls for hearsay.

MR. OWEN: Your Honor t the state opened this

door.

They asked her about her opinion, about whether

8 he might have done this. They asked her about the basis

9 for the opinion. All I'm doing is trying to make sure 10 the record is complete that she had an extensive basis

11 for that opinion. MS. SCHMUCKER: Your Honor, the evidence still

13 has to be admissible. It' sstill hearsay. 14 MR. OWEN: Your Honor, I think that the

15 state-16

1¿

THE COURT:

I haven't heard any hearsay yet.

What's your next question?

MR. OWEN: My quest ion was what was your --

what did you know about his relationship with his wifè

that would have supported your opinion that he might

have committed this violent crime.

THE COURT: Okay, I'll hear the answer to

23 that. Admitted.

24 A He - - my grandmother called me one day and she was 25 very upset and she was crying and I told her, I said, BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 II Calm down, grandma, it t S okay," and she told me that

2 Robert was there and put a gun to her head and -MS. SCHMUCKER: Objection again, Your Honor,

4 hearsay. 5

_ _ was going to blow her fricking head off.

(By Mr. Owen) How long before she called you --

MR. OWEN: I'm sorry, Your Honor.

THE COURT:

I will allow this testimony as far

9 as that it forms the basis of her opinion that Mr.

10 Donnell may have been involved not for the truth the

11 matter asserts. MR. OWEN: Thank you, Your Honor.

13 Q (By Mr. Owen) I'm sorry you were interrupted, Ms. 14 Ellis. You were telling us about this phone call with

15 your grandmother and if you could repeat that I'd

16 appreciate it. THE COURT:

I think you said she said he put a

18 gun to her head? THE WITNESS: Yes, he had put a gun to her

19 20

head and would blow her fricking head off.

Q (By Mr. Owen) Did he do anything else to her that

frightened her?

A Yes, he did.

What is that?

He pushed her and yelled at her on some occasions,

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 but on another occasion he had grabbed her by the 2 throat, right here, and lifted her up against the wall.

3 My grandmother, she's not even a hundred pounds soaking 4

wet.

I mean she's real, real little.

Just a couple more questions.

I f anyone had

6 contacted you after the events of January the 1st, 1994

you knew about Robert Donnell,

7 and asked you about what

8 would you have been willing to share the things you've

9 testified to? 10

Absolutely.

Two names I want to ask you if you know either of

these people.

Yes, I do.

Do you know a Sammy J. Watley?

you know a Mike Palmer?

MR. OWEN: We have no further questions, Your

1 7 Honor. L,

THE COURT: Any re-cross?

1l 19

RE-CROSS EXAMINATION

22 BY MS. SCHMUCKER: 23

Ms. Ellis, did you ever call the police to tell '

24 them what you knew about Mr. Donnell? 25

I had spoke to a police officer (inaudible)

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX,. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

And who did you speak with?

I believe that it was Officer Lockridge, but it

3 wasn't as in - - Connie and I are what we claim as "

friends.

I mean I've known her for several years, and

past but it was already - - I

5 I've said it to her in the

late .

6 don't know, so to speak. too

I'm sorry, too late in what way?

Nobody wanted it to lead to anything else. You

9 really want me to answer truthfully? I will tell you 10 the truth. They wanted this crime done and oVer with. It was done.

They wanted someone punished for it.

So you spoke with Connie Lockridge when?

Probably maybe a month after, I guess.

A month after the fact. So even though the police

15 came over the day after, for a month you didn't say 16 anything to anybody, to the police? 17

They came over the day that it happened, you mean?

Yes. Well, January the 1st, 1994, and yo~ didn' t

19 come forward before Connie Lockridge came and talked tOo

20 you a month later? 21 22

No. MS. SCHMUCKER: Nothing further.

23 24

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972 - 596 - 944 2

EVIDENTIARY HEARING, VOL. I 11-16-05 RE-DIRECT EXAMINATION

1 2

3 BY MR. OWEN: 4

Ms. Ellis, did you have any other reason for not

5 telling the police about this? Any reason it might have 6 involved your grandmother, Ms. Gardner? 7

Yes.

I was afraid for her safety.

I mean she was

8 still living with him, and do I think that he would have

9 done something? Yeah, I do. 10

Had she ever suggested to you that if she told the

11 police she was afraid that he would retaliate against 12 her?

13 A MS. SCHMUCKER: Obj ection, Your Honor,

15 hearsay. 16

THE COURT: Sustained.

MR. OWEN: Your Honor, again, I think the

1~ state asked the question - - well, I can't remember the

19 question. The state asked whether -- why she did not 2 a report it to the police, and I'm simply trying to make

21 sure the record reflects why. The state opened the door 22 on

that question by asking - - her state of mind. Your

23 Honor, is what that goes to. 24

THE COURT:

I don't think that's the question

25 you asked, but it's a hearsay opinion. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

MR. OWEN: Very well, Your Honor. No further

2 quest ions. 3

MS. SCHMUCKER: Nothing further, Your Honor.

THE COURT:

Is this witness to remain or can

5 this witness be excused?

MR. OWEN: We wi 1 1 excuse the wi tnes s, Your

7 Honor. MS. SCHMUCKER: We will excuse her as well,

9 Your Honor. THE COURT: All right. You're free to go

11 about your business. Do not talk to any of the other

12 wi tnesses . 13

MR. OWEN: Your Honor, petitioner will call

14 Mr. James Hayes. 15

THE COURT: Let me see counsel for a minute. (Sidebar Conference)

16 17

THE COURT: State your name and spell your

18 last name for the record. 19

MR. HAYES: James Homer Hayes. H-a-y-e-s.

MR. OWEN: May I inquire, Your Honor?

THE COURT: You may.

22 23

25 BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 JAMES HAYES, Called bv Petitioner (Sworn)

1 2

DIRECT EXAMINATION

5 BY MR. OWEN: 6

Mr. Hayes, where do you live?

I live in Pampa, Texas.

Are you a native of Pampa?

Yes.

And are you here today pursuant to a subpoena?

Yes. MR. OWEN: Your Honor, may I approach the

13 witness? THE COURT: You may.

(By Mr. Owen) Mr. Hayes, I'm showing you what's

16 been marked Petitioner's Exhibit No.. 22. Mr. Hayes, is 17 that your signature on the bottom of that paper? "

1~"

Yes, it is.

And when you signed it did you swear that

20 everything in it was true to the best of your

knowledge?

21 A To the best of my knowledge as far as I knew. 22 Q Have you had an opportunity now to review it

and

23 it's still your statement that it is true and correct "to

24 the best of your knowledge?" 25

Yes.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

MR. OWEN: Your Honor, we would move the

Petitioner's 22 and I wish to examine Mr.

2 admission of

3 Hayes about it.

;

MS. SCHMUCKER: Your Honor, he's here to

testify. I don' t see the relevance of admitt ing 6 written affidavit if he's here to testify to it.

MR. OWEN:

I don't see the harm in it

8 (inaudible) request that pretrial. THE COURT: Well, what's your objection?

10 MS. SCHMUCKER: Well, what's in the affidavit 11 is at this point hearsay. If he. s here to testify he

12 can say it. MR. OWEN: Excuse me, we'll get a response

14 later, Your Honor. 15

(By Mr. Owen)

Mr. Hayes, did you know Twila Busby

16 and her sons, Elwin Caler and Scooter? 17

Yes, I did, very well.

Did

Yes, I did.

what was his relationship to Twila?

I believe he was their uncle. That. s all that I

you also know a man named Robert Donnell?

22 recall. 23

Did she call him uncle?

Uncle Bob.

And did you ever see Robert Donnell act violently?

BETTY TATE, 31Dl TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

Oh, yeah.

Could you describe an act of vLolence by Mr.

3 Donnell? 4

Me and Mr. Donnell got into it one time at Twila's

5 house over an argument. The fact, you know, he was 6 drinking and drugging pretty heavy and (inaudible). THE COURT: Let's put it in a time frame.

8 We. re not going to know when he's talking about.

MR. OWEN: Yes, Your Honor.

(By Mr. Owen)

Can you give us at least a general

11 idea of when you're talking about this dust-up between

12 you and Mr. Donnell took place? Are we talking about 13 1993, 1994? When exactly did this happen? 14

I have no idea, sir, it's been so long ago now.

15 (InaudLble) . Did Mr. Donnell ever threaten you personally on any

other occas ion?

1g/

A Well, it'd probably be -MS. SCHMUCKER: Objection, Your Honor,

19 2a

relevance.

There's no time frame involved.

MR. OWEN: When. uh...

THE COURT: Overruled. What was your answer?

THE WITNESS: Yes.

THE COURT: You don't have any idea when these

25 things happened? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

THE WITNESS: No, sir, I don' t . Sir, back in

2 ' 92 I drank and I drugged, so a lot of things I have 3 forgotten, my mind being under the inf luence of alcohol

4 and drugs at the time. THE COURT: The obj ection is overruled. You

6 can cross examine him. 7

Did you ever see Mr. Donnell

(By Mr. Owen)

8 threaten anybody else in your presence? 9

Not in my presence.

Did he carry a knife to your knowledge, Mr.

11 Donnell? 12

Yes.

And what kind of knife was it and where did he

14 carry it? 15

I know he had a hunt ing kni fe .

A hunting knife, so it was a fixed blade -- was it

17 a fixed blade knife or a folded blade knife? 18

The blade

Where did he carry this knife?

In his pickup.

21 22

Q Had you ever been around Mr. Donnell when he had been drinking?

A Oh, ye s .

I think it was a fixed blade knife.

Did you ever observe him to

behave violently when

25 he's been drinking? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

MS. SCHMUCKER: Obj ection, leading.

THE COURT: Sustained.

(By Mr. Owen) At one time were you and Twila Busby

4 involved in a romantic relationship? 5

Yes, we were.

And during your relationship did Twila ever seek

7 your help in dealing with Robert a lot? 8

Yes, she did.

When would she do that?

When he was drunk.

From time to time he would get

11 drunk - - or they would be drLnking during the time or

12 during the day while I was at work, and when i'd come in 13 from work she would call and they'd be drunk, you know, 14 and Mr. Donnell was arguing with her or something like 15 that, fussing and fighting, and she'd say, "Would you

16 come over here?fl Q

Why did she want you to come over there?

I'm kind of like a peace keeper (inaudible)

And how would you keep peace between them?

Tel 1 him to leave, her to si t down, lay down and go

17 "

21 to sleep. 22 Q What was her emotional state when she would call 23 you? I know you said she was drunk, but what was her" 24 emotional state when she would call and communicate with

25 you? BETTY TATE, 3101 TOWNBLUFF DR. #923,

PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, YOLo I 11-16-D5 Well, drunk.

speech.

(Laughs) .

I mean, you know, slurred

I mean she wasn't scared or anything.

She just

3 wanted me over there. 4

After you ended your romantic relationship with

5 Twila and you married another woman, did Twila still

6 call you from time to time about her Uncle Bob? 7

Every now and then she would call, because we were

8 all friends at the time, and she would call and tell us 9

to come over.

You know, Uncle Bob was taking this, or

10 taking that, or they were arguing or something like 11 that, come over and visit, or something like that. 12

And what was she hoping would

happen when you came

13 over? Let me ask you another question.

14 When you would go over, after having been that , what would you do at 15 summoned on an occasion like

16 her house? 17

We would go over and we would visit with her for a

18 little while, but after, you know, thinking about all

19 them times and stuf f like that, it was more or less fo"r 20 me just to come over and to buy some more beer.

21 Q And did she ever ask you and your wife to stay the 22 night, or did she ever ask you and your wife if she 23 could stay the night with you because of her Uncle Bob?

24 She wanted to be with you and your wife instead of at 25 her own home? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 A

If I remember right I think we stayed a night with

2 her one night, but that was because she was talking to

3 my ex-wife, you know, come over here at home and stay

4 the night with you all, or will y' all stay the night with me, or something like that.

I went ahead and went

6 along with it. You know, what can I do? It's hard to 7 argue wi th your wife. 8

On the night that Twila and her sons were murdered,

9 were you at a party with Twila's (inaudible)? 10

Yes, I was.

Was Mr. Donnell there?

Yes, he was.

What

did you observe Robert Donnell and Twila

14 interacting? 15

They were just arguing, I think. They did that

16 every now and then. When they got drunk they argued. 17

And how did the arguing affect Twila?

I don't know whether she seemed scared or what.

19 know she didn' t want to go home that night. Another guy 20

asked her, "Well, what's wrong?"

In my presence she

21 said." I just really don' t want to go home."

22 Q Was Mr. Donnell drinking that night? 23

Yes, he was. Everybody in that room was drinking

24 that night. 25

MR. OWEN: May I approach the witness, Your BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 Honor? THE COURT: You may.

2 3

(By Mr. Owen) Mr. Hayes, I direct your .'

4 attention -- again, this is Petitioner's Exhibit No. 22, 5 in this paragraph (inaudible). Are you familiar with

6 the last sentence in that paragraph? Do you remember

7 that? I beg your pardon. Which page?

MS. HAYES:

MR. OWEN: Page marked No. 2 (inaudible)

10 marked on top right-hand corner. The paragraph

relationship . "

11 "numerous times during our

(By Mr. Owen)

And I'd like to direct your

13 attention to the last sentence there that says, "Even I were married, Twila would have both

14 after Dorinda and

15 of us spend the night with her because she was afraid of

16 her Uncle Bob." Is that correct? 17

I don. t know if it was just because she was scared

18 of Uncle Bob or that she was trying to get attehtion. 19

But when you signed this affidavit and swore that

20 it was true, you said because she was afraid; is that

21 right? 22

That's right. But like I told you before, I drank

23 and drugged a lot back then and I have had some time, 24 plenty of time to think about all this, and Twila did 25 crave at tention. She did from a lot of people. But I BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1 don' t know, I can' t swear now that it was because of

2 Uncle Bob, or whether she was scared of something else 3 or what, but she would call us numerous times and say, "Will y' all come over. fl A

"Hey, will y' all come over?"

lot of that had to do wi th I had money.

"will you buy a .

"Will you bring beer?" That's what that was all

beer? II

7 about. 8

But when you gave this affidavit you said only, but

9 it was about her fear of Uncle Bob; is that right? 10

That's right.

Mr. Hayes, are you still drinking and drugging?

No, sir, I do not. For 18 months.

18 months.

Is that the longest period of sobriety

14 that you've had? 15

Yes, sir. MR. OWEN: Your Honor. may I have just a

17 moment? r,

l~f 19

THE COURT: You may. Q

(By Mr. Owen) Mr.. Hayes, did you ever have

20 incident in which Mr. Donnell tried to stab you with a

21 knife? 22

He grabbed me and he cut my shirt one time.

Describe for me what happened in that incident. . Do

24 you see where the difference is between why he tried to 25 stab you and (~naudible)? BETTY TATE. 3101 TOWNBLUFF DR.

#923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

Well, I was drunk -- well, I wasn' t really that

2 drunk, but he was drunk and I was running him of f and he

few 3 got in his pickup and then he got back out after a

4 heated words, and we got into a pushing match and he

5 took a knife out of his truck and cut my shirt, right

6 across the front of it. 7 Q Did he cut your shirt all the way through, did he 8 cut through the fabric? 9

Yeah.

So you could put your hand through it, or your

11 finger through it; it was all the way through? 12

Yes.

Did it cut you on your skin at all?

No.

When you say you were running him off, why were you

16 running him off? 17

Because I didn' t like him.

And what was it about him that you didn' t like?

Because he was a drunk.

Was that the only reason?

No, I just didn' t like the way he talked to me, the

22 way he tried to treat me. I just didn' t like him. 23 Q Did your dislike perhaps have anything to do with 24 the way he treated Twila? 25

No.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

THE COURT: Anymore questions?

MR. OWEN: Just one, Your Honor.

(By Mr. Owen) Mr. Hayes, did Twila ever say

4 anything to you at the time when she was afraid or upset

5 about anything her uncle had done to make her afraid or

6 upset? 7

Yes.

Could you explain that for us?

She had come to me and my wife and said that Robert

10 had tried to molest her MS. SCHMUCKER: Obj ect ion, hearsay, Your

12 Honor. THE COURT: sustained.

(By Mr. Owen) At the time that she told you that,

15 was she - - tell me - - describe for me her emotional 16 state when she communicated that to you. That's a 17

physical demonstration.

I'm asking more about how - - if

1~ you can tell, how was she feeling? 19

She wasn. t crying or anything. You know, she

20 wasn' t shaking or anything like that. She just called 21 us up and we went over, and she was upset, you could 22 tell that on the phone, and then she quoted that to us. 23 I didn' t really believe her but that's what she said. 24

25 call you at

How recent was the event that had caused her to

that time? Was it something that had just

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 happened or something that had happened a long time

2 before? I think it happened a long time before.

real for sure.

I'm not

I can't be positive.

I think

5 (inaudible) . 6

MR. OWEN: We'll pass the witness. Your Honor.

THE COURT: Any cross?

CROSS EXAMINATION

11 BY MS. SCHMUCKER: 12

Mr. Hayes, I'm Margaret Schmucker from the

13 Attorney General's Office. Just to clear things up, are 14 you any relation to the lady sitting here with me? 15

No, I' m not.

Okay, on the record. Mr. Hayes, can you tell me

17 where you worked back in 1997? Were you in custody? 18

I was part of TDCJ Dalhart unit.

And so if Mr. Skinner's habeas counsel at that ti"me

20 had come to see you, you would have been readi ly

21 available to him at the prison. Would that be a fair 22 statement? 23

Yes, ma' am.

And would you have talked to them?

Yes, ma'am.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

You talked about your relationship with Mr.

2 Donnell. Did you also know Mr. Skinner? 3

Yes.

Did you know Mr. Skinner to be a violent person?

Yes, ma'am.

Did you know Mr. Skinner to drink?

Yes, ma'am.

How much did Mr. Skinner drink?

I don' t have any idea. Ever time I seen Mr.

10 Skinner he was drinking. 11

Would you say he kept up wi th you pretty good?

Nobody could keep up wi th me.

Fair enough. Do

you know whether Mr. Skinner did

14 illegal drugs? I can' t say that for a fact. 16 him and I didn. t drug with him.

I didn' t drink with

Do you happen to know whether Mr. Skinner took any

1~ or used any prescription drugs? 19

I don' t know.

You talked about the times that Twila would call up

21 or call you to come over to her house when you were

22 dating. Did you consider that at all unusual for a 23 girlfriend to call her boyfriend to come over? 24

No, ma' am, I did not. Not from her.

And you also stated that Twila Busby wasn't scared

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL.

I 11-16-05

1 of Mr. Donnell and they hung out together; is that a

2 fair statement? 3

He was over there qui te frequently.

So from what you saw there was no serious problem

5 between the two of them? 6

No, ma' am. That man would go over there and be

7 wi th his kids, and take them to get videos, take them to

8 eat hamburgers, and bring food to the house, and I

9 didn't see any problem. Not a serious problem. 10

After Ms. Busby started dat~ng Mr. Skinner did you

11 know anything about their relationship? 12

Just hearsay.

You never - - did you ever see them together?

No.

You said you thought Twila Busby had been at a

16 December 31st, 1993 -- at that party? 17

Yes.

And she seemed that she didn' t want to go home?

Yes.

So she didn' thave a problem staying at the party

21 where Mr. Donnell was. Would that be a fair statement? 22

He had left.

He left before she left?

Yes, ma' am. He was more or less run off is what it

was. He was starting trouble.

(Inaudible). He wasn' t

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 the only person. He wasn' t the only person who was at

2 the party he was arguing with.

3 Q who ran Mr. Donnell off the place?

4 A Mr. Mi tchell did. 5 Q Mr. Mitchell did? 6 A Yes. 7 Q And he did that before he left to take Twila Busby 8 home, from your recollection?

9 A (Inaudible) . 10 Q Do you know whether Mr. Skinner was ever violent 11 towards Twila Busby? 12

I had never seen it but I had heard it.

So he did not have a reputation of being a peaceful

14 person. Would that be a fair statement? 15

That would be a fair statement.

Did it seem to you at all like Ms. Busby was afraid

17 of him, Mr. Skinner? t,

1~:

Just hearsaY. You know, I can' t say that because

19 she never did come to me about it. We finally told

20 Twila Busby to quit calling -MR. OWEN: Obj ection, hearsay.

21 22

I can' t say whether she did or not. I didn' t understand your COURT:

( In au d i b 1 e) .

THE

24 objection. 25

MR. OWEN:

I'm sorry, Your Honor, I obj ected

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

that the answer was containing hearsay, and i'll be

clearer next time.

THE COURT: Overruled.

f I'

(~:

(By Ms. Schmucker)

Is it at all possible in your

opinion

home had anything to do wi th her having fear that Mr..

Skinner would be upset with her?

A Yes.

Q And so did he treat her - - how did he treat her?

that Twila Busby's apprehensions about going

Like a girlfriend, like a wife? Did he treat her like

an obj ect? How did he treat her?

A I don't know.

Q When you gave the affidavit in 2001 that you just

reviewed, were you drinking and doing drugs at that

time, around that time?

A I was just incarcerated from drinking and drugging.

Q How recently had you been incarcerated?

A I was only

back in the system for three mOhths so I

hadn't completely got (inaudible). Q And so counsel's investigator came to speak with

you inTDC?

A Yes.

Q And since you'd had time to think about it, what.

you put in that affidavit, you'd had time to determine

that maybe you had made a mistake on some small points?

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 A

There's points in that affidavit that I'm still not

2 clear on. 3

And that would be just because of --

Just because of the alcohol and drugs.

So you weren't actually trying to lie, it was just

6 a lapse of memory, and you were do~ng the best you

7 could. Would that be a fair statement? A

That's would be fair.

MS. SCHMUCKER: Pass the witness, Your Honor.

THE COURT: Any re-direct?

MR. OWEN: May I approach the witness, Your

12 Honor? THE COURT: You may.

RE-DIRECT EXAMINATION

15 16

1 7 BY MR. OWEN: ,

1~~

I need to impose on you again, and I' dlike t6 show

19 you again Petitioner's Exhibit 22, and directing your 20 attention to the bottom of Page 2, the end of Page 2,

21 the paragraph beginning, "I personally know Robert 2 2 Donnell to be a violent individual." On the next to 2 3 last sentence it says, "I have seen Robert Donnell

24 threaten others with this skinning or Bowie type knife. 25 I once observed Robert Donnell, unprovoked but drunk, BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

with a knife."

1 threaten two teenage boys

2 I wasn' t sure about your answer earl ier to my 3 question of whether you had ever seen Mr. Donnell

4 threaten anyone else, and I want to ask whether 5 reviewing that refreshes your recollection about having

6 seen him threaten anyone else with violence?

7 A That part does ' cause I was with him when he done 8 that. Them kids didn' t do anything (inaudible) driving

9 when that happened. 10

And how old were these young men, do you think?

Probably 19, 18 or 19.

Did he actually take out his knife or --

No, they were in another vehicle and they had

14 pulled out in front of him and it made him mad, and he

15 pulled a knife out from under the seat and showed it to 16 them, and you know, cuss them out (inaudible) and stuff 17 like that, but they were in another vehicle.

18 Q But he did pullout the knife and display it and he 19 was angry --

20 A Yeah, but they realized that he was cussing 21 (inaudible) and they kept on going. 22

MR~ OWEN: Nothing further, Your Honor.

MS. SCHMUCKER: Nothing further, Your Honor;

THE COURT: May this witness be excused?

MR. OWEN: Yes, Your Honor. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 Yes, Your Honor.

MS. SCHMUCKER:

THE COURT: All right, you're excused and you

3 can go about your business, but don' t talk to anybody

4 about this case. 5

the petitioner will

MR. OWEN: Your Honor,

6 call next THE COURT: We're going to take our morning

8 recess.

9 (Short Recess)

MR. OWEN: Your Honor, the petitioner will

11 call Vickie Broadstreet. 12

THE COURT: Vickie Broadstreet.

MS. SCHMUCKER: Your Honor, just for the

14 record, Ms. Broadstreet is one of those individuals 15 about whom we raised an exhaustion objection, and also 16

the Martinez - - running Martinez obj ection.

There was

17 no attempt whatsoever made to present her affidavit or l, 18 testimony, eVen. within the context of the state writ, 19 which was dismissed by the Court of Criminal Appeals. Is Your obj ection is overruled. THE COURT: 20

21 that "vickie" with an "i" or a "y"? 22

MS. BROADSTREET:

THE COURT:

If i-e. II

"i - e. " Would you spell your last

24 name for the record? 25

MS. BROADSTREET: B-r-o-a-d-s-t-r-e-e-t. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

VI CKIE BROADSTREET, Cal led bv Pet it ioner (Sworn)

1 2

DIRECT EXAMINATION

5 BY MR. OWEN:

Broadstreet , where do you live?

Ms .

Where do I live?

Yes, ma' am.

Pampa, Texas.

And are you a Pampa nat i ve?

Yes, sir.

Are you here today because you got served wi th a

13 subpoena? 14

Yes, sir.

Ms. Broadstreet, I'd like to direct your attention

16 to the year 1993 and ask you if at that time you were

17 living in Pampa? 18

Yes, sir.

Let me ask you a different question. Did you know

(Inaudible)

2 a Ms. Twi la Busby? 21

Yes, she was my best friend.

How long had you known her?

About five years.

(Inaudible) (Inaudible)

BETTY TATE, 3101 TOWNBLUFFDR. #923, PLANO, TX.972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

How regularly did you have contact with Twila, when

2 you say she was your best friend? How often did you see

3 her?

Every day.

Would you describe your relationship with Twila as

6 close? 7

Yes.

Do you still have contact with any of the other

9 people in Twila's family? 10

Yes.

Who would that be (inaudible)?

Doug, her brother, Lisa, Charley's daughter, and

13 Beverly, the mother. 14 Q In addition to knowing Twila, did you also know a 15 man named Robert Donnell? 16

Yes.

If you know, what was his relationship to Ms.

ii Busby? Did you know him as a friend, a co-worker? 19

An uncle, I believe.

2 0

How would you describe Robert

Scary.

When you say scary, what do you mean by that?

He had no respect (inaudible).

Donnell?

(Inaudible) . (Inaudible) .

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, YOLo I 11-16-05 1

Was Mr. Donnell polite, good natured, was he a

2 gent le, sens i t ive person? 3

No.

Did he drink alcohol?

Yes, sir.

Could you (inaudible). MS. SCHMUCKER: Obj ect ion, leading, Your

8 Honor. THE COURT: Sustained.

(By Mr. Owen)

Did you ever see Mr. Donnell with a

11 knife? 12

Yes, sir.

Could you describe the knife for us, please?

It was a (inaudible) knife.

Did you ever see him threaten anyone before?

No, I didn' t see him threaten anyone. (Inaudible)

Did you ever see him threaten anyone not with a

18 knife, just may have threatened (inaudible)? 19

No.

What did Twila tell you about her relationship with

21 Mr. Donnell? 22

MS. SCHMUCKER: Objection, calls for hearsay.

MR. OWEN: Your Honor, I be 1 ieve that the

24 an s we r wi 1 1 sat i s f Y Ru 1 e 8 04 (b) (3) in t hat it wi 1 1 be an

25 admission that was contrary to declarant's interest so BETTY TATE, 3101 TOWNBLUFF DR. #923,

PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 much so at the time she made it that she would not have

2 been able to (inaudible).

(Inaudible)

THE COURT:

(By Mr. Owen)

I'll hear it.

The question again was what was

5 Twila' s relationship with Mr .

Donnell?

You know, I think they were having sex.

Did Twila tell you that they were

having sex?

(Inaudible). Yes Did - - if she was in a relationship with

someone

10 else, did she continue to have sex with Donnell? 11

Now that I don' t know.

Did Twila ever tell you that Mr. Donnell was

13 jealous of her for having relat ionships wi th other

14 people? 15

Yes.

And if anybody had contacted you after Twila' s

17 death on January the 1st of 1994 and asked you what you l (;g,.'

1iJ" knew about Twila and Mr. Donnell would you Q.ave told

19 them the same thing as you've told us here today? Probably not, because it's been a long time and you

know, I'm still

(inaudible) today.

When you say -- let me ask you more specifically.

23 Would you have told them the truth or would you have

24 concealed the fact that Twila confessed to you that she 25 (inaudible) was having sex with her uncle or were you BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 just not the (inaudible). Would you just not have told 2 them anything about what you knew about Donnell and what

3 his temperament is, the fact that (inaudible) and those

4 things? 5

(Inaudible) . MR. OWEN: We'll pass the witness, Your Honor.

6 7

CROSS EXAMINATION

8 9

10 BY MS. SCHMUCKER: 11

Good morning.

I'm Margaret Schmucker wit~ the Attorney General's

office.

I jus t have a couple of quest ions for you.

Who was Scooter?

One of Twila' s sons.

And did he also suffer from a medical disability?

Yes, he did.

And what was that?

MD (inaudible) both parents did.

Regarding - - you're testifying that Mr. Donnell and

Twila were having sex.

Is that something she told you

23 or was that something you observed. or is that something

24 he told you? 25

NO, she told me.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

Did she tell you that it was consensual?

Yes.

So she wasn' t afraid of him any?

She wasn't, but I was.

But she expressed no fear of Mr. Donnell?

No.

MS. SCHMUCKER: Nothing further, Your Honor.

7 8

RE-DIRECT EXAMINATION

11 BY MR. OWEN: 12

Ms. Broadstreet, has your testimony here today been your knowledge?

13 true and correct to the best of

Yes, sir.

I f you had been subpoenaed to court in 1995 and

16 asked the same questions, would you have testified

17 truthfully in court? if

1iJ'

Yes, sir.

MR. OWEN: No further questions, Your Honor."

MS. SCHMUCKER: Nothing further, Your Honor.

THE COURT: May this wi tness be excused?

MR . OWEN: Yes, sir.

MS. SCHMUCKER: Yes, Your Honor.

THE COURT: You're excused (inaudible).

MR. OWEN: Your Honor, we'll call John Mann. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 I believe he's returned.

2 (Witness Sworn) MR. CHANDLER: State your name and spell your

4 last name for the record, please.

THE WITNESS: John Mann, M-a-n-n.

5 6

JOHN MANN, Called bv Petition.er (Sworn)

7 8

DIRECT EXAMINATION

11 BY MR. OWEN: 12

Good morning, Mr. Mann.

Good morning.

Mr. Mann, what do you do for a living?

I'm a lawyer.

How long have you

33 years.

Where do you live?

Kellerville, Texas.

Where do you maintain your law office?

413 Third Street, Amarillo is my primary office,

pursued that calling?

22 and I also have an office at 102 West Kingsville in 23 Pampa, Texas. 24

Were you in 1994 and' 95 the elected district

25 attorney of the 31st Judicial District? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

I was.

In that capaci ty did you prosecute Mr. Skinner for

3 capital murder? 4

i did.

5 Q I need to ask you some questions about your policy 6 wi th respect to discovery by defense counsel generally

7 or in the Skinner case. 8

Yes, sir.

What was your discovery policy back then with

10 defense lawyers getting access to information in the

11 state's file? totally open file policy.

I had

And could you describe what you mean by that?

Every file I had was totally open to all defense

15 counselor their staff. They were permitted to come to 16 the office and make copies oÂŁ every document in the 17 file, whether it was privileged or not, whether it was

1~ work product or not, and whether it was video tape i

19 audio tape, anything. 20 Q And so you didn' t wi thhold anything to the defense? That's correct. A 21 22

Why did you follow the policy?

Number one, it saved me the time of having to si t

24 down with the defense lawyer and sit there while he went 25 through the file. Number two, my phi losophy was that if BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 I couldn't win the case based on what I had in my file, 2 then I didn't want to go after the case and I didn' t

3 deserve to win it, and I always thought, after having 4 practiced criminal law as a defense lawyer for 15 years,

5 that both sides ought to know what evidence there was in

6 the case, good, bad or indifferent. MR. OWEN: Your Honor, may I approach the

8 wi tness? THE COURT:

(By Mr. Owen)

You may.

Mr. Mann, I'm going to show you

11 what's been marked as Respondent' sExhibit 11 and I'd

12 like to direct your attention to this paragraph, 13 IIDefense counsel had the opportunity 14

MS. HAYES: what page?

MR. OWEN:

First page, Paragraph 5 that

16 begins, IIDefense counsel had the opportunity - - . " 17

Paragraph 5 that's in quotation marks. Your Honor. (By Mr. Owen)

Mr. Mann, have you had a chance to

19 look that over? 20

I have.

And as you were saying, it indicates, "Defense

22 counsel had the opportuni ty to have any evidence which

23 was in the possession or subj ect to the control of the 24 state, tested for DNA or any other forensic

information .

25 Al 1 that needed to be done to have that testing BETTY TATE1 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 performed was to request same."

Is that an accurate

2 reflection of what your affidavit said? That's an accurate reflection, although upon

4 reading it I would say it's somewhat incomplete. 5

Tell me what you mean by that.

Well, all they had to do to get it tested was to

ask for it.

If they had asked for it I would have

8 agreed to have it done but I would have reque.sted the

9 trial judge to put in place some restrictions, number retain privacy for the defense counsel as to

10 one, to

11 what they were having tested, and the results of it, but 12 I would have also wanted him to put into place some

13 steps to maintain the chain of custody so that if it did

14 go out for testing and it did come back, that there be no later objection by the defense counsel in

15 would

16 the event that I, the state, attempted to use that piece 17 of evidence so that they would not be obj ecting to a "

1# break in the chain of custody of their own making. 19

So with that addition (inaudible), is it an

20 accurate statement of your attitude toward the question 21 of the defense doing DNA or forensic testing in this

22 case? 23

Yes, sir.

And if the defense had forensic testing of whatever

25 kind performed before trial, pursuant to the kind of BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, YOLo I 11-16-05

1 order that you were describing that would have ensured 2 the chain of custody so that the evidence would remain,

3 the integrity of the evidence would not be in question,

4 and that would have protected the defense's right to the

5 confidentiality of the test results, would you have 6 tried to take advantage - - and assume further that after

7 that pretrial proceeding, the defense had not presented

8 any forensic evidence at trial, they didn' t call any 9 experts, they didn' t call the DNA guy or forensic

10 testing, would you have tried to take advantage of that

11 by point ing that out to the jury and saying that they

12 didn' t bring in any forensic evidence?

13 A No, sir, I've done that several times. When I say 14 I've done that several times, I've utilized that 15 procedure before. 16

I see.

You utilized the procedure we just

17 described several times, but in those cases you didn' t 18 try to take unfair advantage of that in front of the

19 jury? 2a

No.

Now, the prosecution in this case, did the

22 prosecution have certain items tested for DNA? 23

Yes, sir.

Was there any i tern of evidence that your team

25 wanted to DNA test, or thought was important to DNA BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 testing and did not test, that you recall? A

Not that I recall right now.

If I thought it was

3 important I. d have had it tested. 4

So it's fair to say you were satisfied with the

5 extent of the testing that the prosecution had performed

6 in the case? 7

Yes, sir.

Before you were the district attorney for the 31st

9 Judicial District, who held that position? 10

Harold Comer.

And were you aware in the earliest

stages of the

12 case against Henry Skinner that Mr. Comer had previously Skinner when he had been the district

13 prosecuted Mr .

14 attorney for the 31st Judicial District? 15

Yes.

At some point did there come a time when this

17 subj ect,by wh~ch I mean the subject of Mr. Comer's f

1~' previously having prosecuted Mr. Skinner, was raised in

19 the Skinner lit igat ion? 20

Yes.

Could you describe that for us? How did the

22 subject come up? It was shortly after the charges were filed agairtst

Mr. Skinner.

I remember very clearly we were in

25 court - - I say we, I remember myself being there, my BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 then assistant, I remember Mr. Comer, I remember Mr.

2 Skinner, I remember the bailiff of the court, Wayne 3 Carter, I remember the court reporter, Larry Horton, I Sims , there may have been

4 remember the judge, Kent

being

5 others. I specif~cally remember those persons

6 there. 7

Just a second.

Go ahead.

Who, if you remember, who brought up the subj ect?

I don' t remember.

It was either Mr. Comer or Judge

11 Sims. 12

And was this at a point in a court day when the

13 proceedings were still on the record? 14

To my recollection, no.

I specifically remember

15 where I was standing and I would have been standing in

16 the position of the litigants where this red haired 17 woman is over here, Mr. Comer would have been standing 18 where you would have been seated, Mr. Skinner would have 19

been standing where he's seated.

I remember we had

20 finished our proceedings for the day, whether it was 21 arraignment or pretrial I don' t remember.

22 I do remember either Mr. Comer or Judge Sims

23 specifically bringing up almost as an afterthought 24 something to the effect, "Oh, yes, there's one other 25 matter we need to take care of. II At that time there was BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 colloquy between Judge Sims and Mr. Comer and Mr.

2 Skinner about Mr. Comer having represented Mr. Skinner 3 on prior charges, and the subject of conflict coming up,

4 and I do recall the judge talking with Mr. Skinner about 5 that, and I specifically recall Mr. Skinner stating that no objection to Mr. Comer representing him, and I

6 he had

7 specifically recall the judge inquiring if Mr. Skinner 8 waived any conflict of interest. 9 Q And do you remember whether Judge Sims explained to

10 Mr. Skinner the consequences of -11

No, I do not. You and I talked about that wi th Mr.

12 Robinson and Mr. Owen in my off ice about two weeks ago,

13 or three weeks ago when you asked me that ,and I told you what I jus t told you now.

I do not remember

15 anything past Judge Sims asking Mr. Skinner if he waived 16 the conflict and Mr. Skinner acknowledging that he did.

17 I do not remember Judge Sims going into the possible fr

1~ consequences of waiving that conflict. 19

Let me make sure that I understand your answer.

20 want to make sure I'm clear on what you are saying. You 21 don't remember whether that happened, or you remember

2~ that it did not happen? I'm not saying that I remember that it did not

happen.

I'm saying I do not remember whether it

25 happened. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

Q Had Mr. Comer ever, prior to this court hearing in

which the issue was raised, discussed with you the

question of his possible conflict of interest?

A Not to my recollection.

Q In early 1994 did you have a high or low opinion of

the professionals of the Pampa Police Department?

A Low.

Q And did you feel that the Pampa Police Department

was capable of investigating a maj or crime scene like

the capi tal murder underlying this case?

A Definitely not.

Q Did you ever decline to prosecute cases brought to

you by officers of the Pampa police Department

you had concerns about the credibility of the officers?

because

MS. HAYES: Obj ection, relevance.

MR. OWEN: Your Honor, we will connect this up I think that

i 7

with our ineffectiveness claim later on.

we need to make this to inquire about the prosecutor's

opinion of the crime scene investigation put forth

this kind of case.

t,:.

in "

MS. HAYES: But he specifically said it

21 22

doesn' t deal with this case.

cases, Your Honor. MR. OWEN:

(By Mr. Owen)

He asked about other

I'm sorry. I meant inc luding thi s case, Mr.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 Mann. Did you acquire especially positive regard for 2 the Pampa Police Department in how they handled this

3 case? MS. HAYES: Obj ection, then cumulative if he's

going to combine this case versus other cases.

6 me an -THE COURT: Well, let's get back to - - you've

8 asked one question, now you're taking one after another

9 one. Ask the question you want to ask. 10

(By Mr. Owen)

Directing your attention

11 specifically to the Skinner case, did you conclude that

12 there was a risk that the video taped statement taken 13 from Mr. Skinner by Detective Terry Young on January the 14 1st of 1994 might not be admissible? I didn' t conclude that there was a risk that it

might not be admiss ible.

17 admissible. f And you 1 tl Q

I knew darn well it wasn' t

felt that way notwithstanding the fact that

19 Judge Sims might well have admitted it if you had

20 offered it? 21

I wouldn't have tried to offer it, it was so

22 blatantly violative of the defendant's rights. 23

Is that why you communicated to the defense that"

24 you did not plan to use the statement unless Mr. Skinner

25 testified? BETTY TATE, 3101 TOWNBLUFF DR. #923. PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11 - 16 - 05 1

Exactly. MR. OWEN: Your Honor, may I have just a

3 moment? THE COURT: You may.

(Short Pause)

MR. OWEN: Your Honor, may I approach the

7 witness? THE COURT: You may.

8 9

(By Mr. Owen)

I'm going to show you what's been

10 marked for identification as Petitioner's Exhibit 40 and 11 Pet i t ioner 'sExhibit 41. and ask you if you could read 12 those two (inaudible) THE COURT: Why are we reading before

14 (inaudible) . MR. OWEN:

I'll ask away, Your Honor. He

16 should answer my question wi th what he's already read. 17

(By Mr. Owen)

Mr. Mann, you are quoted in these

18 articles, are you not? 19

Do you want me to read them or not before you

20 question me? 21

MR. OWEN:

I do need to have him read his

22 quotes, Your Honor, because I'm going to ask him whether

23 they were accurately reported. 24

THE COURT: Well, do you

not remember

25 you remember your quotes from (inaudible)? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 THE WITNESS:

I don't know what they are.

2 haven' t read them.

THE COURT: Go ahead and read them.

All right, I've generally refreshed my

5 recollection. Would you like to seek the court's

6 permission to question? 7

MR. OWEN: May I approach the witness?

THE COURT: All right.

(By Mr. Owen)

In Pet itioner' s Exhibit 40. you are

10 quoted in this article as saying, II In all the samplings

11 there has been no DNA from a third person. 11 Is your

12 recollection of that accurate in what you had said to

13 the reporter? 14

I have no recollection of saying that.

with respect to Petitioner's No. 41, what I wanted

16 to ask you about was in the third paragraph that begins,

17 "Not only was the blood caked on the hair Skinner's, the "

11 hair in her hand was Skinner's." Do you recall wh~n you

19 made that statement? 2a

I do not recall making that statement.

I do recall

21 having been given that information from the person in

22 the laboratory that did the testing. 23

How was that information communicated to you?

By telephone.

MR. OWEN~ Your Honor, may I have just a BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 moment? THE COURT: You may.

(Short Pause)

MR. OWEN: Nothing further, Your Honor, we

5 pass the witness.

CROSS EXAMINATION

7 8

9 BY MS. HAYES: 10

I'm Katherine Hayes with the Attorney General's

11 Office. . 12

Right.

I've just got a few questions. You've told us here

14 about a video taped statement, the January 1st statement 15 with Terry Young, and you said that you didn' t use it -16 you didn' t try - - because you weren't going to go ahead

17 and use that at trial; is that correct? 18

That's correct.

Even if that statement is not ultimately good at "

20 trial, isn' t that the kind of information that the

21 defense counsel would want to see, any kind of prior

22 statements by the client, so they can assess all the 23 versions, the stories he's told about what happened? 24

I would hope so.

Now, in fact, did you make that video tape or used

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 a transcript of it, available to trial counsel? A

I should have.

I hope I did.

MS. HAYES: At this point I pass the witness.

MR. OWEN: We have nothing further for Mr.

5 Mann, Your Honor. 6

THE COURT: Can this witness be excused?

MR. OWEN: Ye s i Your Honor.

THE COURT: He cannot be excused?

MS. HAYES: No, Your Honor, not on the topics

1 a I need him on, but we won't need you unt i 1 tomorrow. 11

THE COURT: When do you anticipate --

MS. HAYES: Probably not until late tomorrow.

THE COURT: Are you going to be - - our problem

14 is is sometimes we release witnesses to do that and then

15 they're not available. Will you make sure MR. MANN: Judge, I love to give the excuse

17 that I'm subj ect and available for recall. That does lยก-

1~ wonders for my boss. 19

MS. HAYES: We've got five numbers to track .

2 a him down, Judge. We can get him. Ten minutes away?

THE COURT:

MR.

THE COURT:

MR.

MANN:

Yes, Your Honor.

MR.

OWEN:

Your Honor, we need to confer about

MANN:

Ten minutes. You're still under the rule.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING/VOL. I 11-16 - 05 1

the status of Ms. Reed.

I think she was expected to be

witness , and I'm not sure whether she is back

2 our next

3 in the courthouse or not. THE COURT: Well, you can see if she's out

4 5

there.

(Inaudible) . MR. OWEN:

If I may have just a moment, Your

7 Honor, and I' 1 1 see whether she's out there and then

8 I'll let the court know how I want to proceed.

9 (Short Pause)

MR. OWEN: Your Honor, in the absence of Ms.

11 Reed, who has not returned to court, we will call Harold 12 Comer. 13

THE COURT: Do you want Mr. Fields in here?

MR. OWEN: Yes, sir, I do.

THE COURT: Well, he's welcome. Mr. Comer,

16 will you come up to the stand? 17

MR. ROBINSON: Katherine, you're agreeing to

18 Ken Fields being present? 19

MS. HAYES: No.

I mean I know it would

20 shorten things up but I think we'd probably better not ~ 21

THE COURT: (Inaudible).

MS. HAYES: Well, in hindsight I guess we'd

23 better not, just to make sure it's all clear about what

24 things are being said differently, so yeah, we'll go 25 ahead and obj ect and keep him out under the rule. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972 - 596- 9442

EVIDENTIARY HEARING, VOL. I 11-16-05

MR. ROBINSON: Well, Your Honor, as I read the

2 rule, she has the right to obj ect -3

THE COURT: That's why she's invoked the rule.

MR. ROBINSON:

I think it will save time, Your

5 Honor, because I'm going to have a lot of documents to

6 review and go over with counsel and I think I can

substantially shorten it.

If Mr. Fields is here, and he

8 sees what documents we're dealing with, and we don' t

9 have to rehash all that with him. 10

THE COURT: How many documents?

MR. ROBINSON: Probably it could be as many as

12 20 or so. Your Honor, these two witnesses are 13 attorneys. I don' t think we have to worry about any

14 collaboration in the testimony. They're both being

15 accused of ineffective assistance of counsel, so it 16 seems to me like there's a likelihood that petitioner's

17 (inaudible), and it does seem to me like it would 1~ substantially expedite things, but if we do separate 19 them then I'll be happy to proceed on that basis 20 (inaudible) . L F

THE COURT:

21 22

work.

I'm not sure how this is going to

I'm going to let Mr. Fields stay. You're still

23 under the rule but you'll be able to stay and hear the 24

testimony of Mr. Comer.

If we get to a point that you

25 think you're unduly prejudiced, I'll let you stand up BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 and I' 1 1 hear the argument. otherwise, we're just going

2 through things, ordinary things (inaudible) need to be

3 here for this part of the hearing. Mr. Skinner, you 4

need to stand up.

There is, and I'm sure your attorneys

5 have gone over this with you, what's called the

6 attorney/client privilege. What that means is, is that 7 anything during the representation of a client, the 8 client

tells the attorney

or the attorney tells the

9 client in furtherance of that representation, or aids in

10 assisting the representation, anything that's said 11 between that lawyer and the client in confidence is

12 privileged, and some third parties that are retained by 13 the lawyer as an agent, but anything that is said 14 between the client and the attorney, like I said, in 15 confidence or in private, is privileged, and the 16 lawyers - - the privilege is the cl ient' s, not the 17 lawyer's. The lawyer cannot violate that privilege and

18 cannot disclose any privileged communications that they 19 had with their client, or any communications that thei~ 20 client had with him them, unless the client waives that

21 privilege and says it's okay or allows the lawyer to 22 disclose privileged communications.

23 You've made allegations in your writ of habeas 24 corpus that you should be entitled to habeas corpus 25 relief because you received ineffective assistance of BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

1 counsel i and that is probably a waiver of your

2 attorney/client privilege; not probably -- it is. But I 3 still want to make sure you understand that you are 4 waiving the privilege and that you might have options 5 available to you that you could discuss with your habeas

6 counsel if you chose not to waive your attorney/client

7 privilege relationship of anything that's communicated

8 between you and Mr. Comer and you and Mr. Fields, or 9 between both Mr. Fields and Mr. Comer when they were

10 representing you at your state trial. Do you understand 11 all of that and have you been knowledgeable that you

12 have such an attorney/client privilege with these 13 lawyers? MR. SKINNER: Yes, sir, I understand it, and

15 before I waive it, can I confer with counsel for just a 16 minute? THE COURT: You may.

17 lf

(Conference between Mr. Skinner

and counsel)

MR. SKINNER: Your Honor, after conferring

21 wi th counsel, I will waive the privilege to the extent 22 that it concerns any of the claims in the writ. 23

THE COURT: Well, if you waive the privilege

24 it's going to allow these attorneys to testify to

25 anything that was said by you to them in furtherance of BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

I 11 -16 - 05

EVIDENTIARY HEARING, VOL.

1 their representation of you, and anything they said to 2

I don' t know

you in furtherance of that representation.

3 what qualification you're attempting to put on it, but --

4 you'll be guaranteed - - the court will determine the

5 relevance of the questioning of these lawyers, but as 6 far as waiving the privilege in court, it's going to be

7 waived. MR. ROBINSON: May we have a moment, Your

9 Honor? 10

MS. HAYES: While they're conferring, Your

11 Honor, there is so much paper work involved wi th both

12 the attorney claims, I would ask after they're through 13 with the direct of Mr. Comer if we just took like a very 14 brief, maybe five minute break or something, just so I 15 can get everything rearranged before we get

started?

THE COURT: Well, we'll see (inaudible).

MR. ROBINSON: Your Honor, can I raise this I want to make sure we

point or a question with you?

understand so we can properly advise our client.

20 believe Mr. Skinner will have an answer for himself but 21 I do believe Mr. Skinner will waive the attorney/client

22 privilege with respect to any matter ,that is necessary 23 to allow Mr. Fields or Mr. Comer to fully answer the

24 questions that are going to be asked at this hearing. 25 We're, of course, not agreeing that we won' t raise BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

into a matter 1 objections as to relevance if it's getting

2 we think is not relevant to this proceeding, and also 3 Mr. Fields has represented Mr. Skinner on other matters, 4 and we would presume that that wouldn' t necessarily be a

5 waiver as with respect to those other attorney/client

6 relationships on other matters. 7

THE COURT: When was that?

MR. SKINNER: It was prior to this case, Your

Honor.

A year previous. THE COURT:

So you're asking me to give an

advisory or rule on something I don' t know.

That prior

12 representation wasn' t part of this 1995 trial? It's not 13

part of the wri t .

I don't know

if it's relevant, but I

hear the question 14 can't rule until I hear the testimony,

15 rather. MR. ROBINSON: Well, that's fine with us, Your

Honor.

I f we ill have the opportunity to be heard at the

1~ appropriate time, and I assume we will, then I think if

19 you're satisfied at this point, if Mr. Skinner will 20 waive the privilege with respect to allowing counsel to 21 answer any question with respect to any matter,

22 privileged or not, that is asked of them at this 23 hearing, and Your Honor deems to be a question eliciting

24 relevant testimony. 25

THE COURT:

that what you want to do?

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

MR. SKINNER: Yes, sir.

THE COURT: You want to let these lawyers

3 testify to any privileged communications? 4

MR. SKINNER: I do.

THE COURT: All right. And that goes to both

6 lawyers? That's Mr. Comer and Mr. Fields? MR. OWEN: He's asking whether it's both

8 lawyers, Mr. Fields and Mr. Comer. MR. SKINNER: The waiver, Your Honor? Yes,

yes, yes, sir. 11 under here.

I'm sorry, Judge, I had my chains on

12 HAROLD COMER, Called bv Peti tioner (Sworn)

13 14

DIRECT EXAMINATION

15 16

17 BY MR. ROBINSON: 18

Good morning, Mr. Comer. Mr. Comer, you w~re Henry

19 Skinner's lead counsel in his capital murder trial in 20 1995? 21

Yes.

Were you court appointed?

Yes.

How soon after he was arrested on the capital

25 murder charges were you appointed to represent him? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

100

I think the Magistrate appointed me on January the

27th of 1994. 3

You were originally appointed to represent him in

4 connection with some charges other than capital murder 5 that he was arrested on the night he was arrested on I

6 think it was January 1st, 1994? 7

Yes.

And

then were you subsequently appointed to

9 represent him on the capital murder charges? 10

Yes.

And did you continue to represent him on these

12 capital murder charges until - - through trial and after 13 he was convicted and sentenced to death? 14

Yes..

And then you were subsequently replaced as his

16 counsel for purposes of direct appeal? That's correct. t, So you represented him for a period of .about 15 Q 19 months; is that correct? That's about right. A 20

1 EÂĽ

Now Mr. Comer, you've presented defenses at trial

22 that were directed toward trying to convince the jury

23 that Mr. Skinner was not the person who perpetrated

24 these murders? 25

That's correct.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

101

EVIDENTIARY HEARING, VOL. r 11-16-05 1

So it was an innocence defense. Would that be fair

2 to say? 3

Well, I don't think our defensive theory was

4 addressed to actual innocence i but our defensive theory

5 was to raise reasonable doubt within the minds of the

6 jurors about certain shabby police work as we called it, be quite understanding what 7 but our defense - - I may not

8 you mean. We were looking for an acquit tal, but we were 9 not offering any evidence relating to the direct 10

innocence of Mr. Skinner, but also

but only as

11 evidence which we thought would raise a reasonable doubt

12 in the minds of the jurors as to his guilt. 13

Well, let me put it differently.

I think we may be

14 having problems with a small difference here, but you

15 presented evidence that was designed to convince the was

16 jury that Mr. Skinner

incapable of having committed

17 the murders? 18

That's correct.

So that would be not inconsistent with the notion'

20 that if he was incapable of committ ing the murders, he

21 was innocent of the murders? 22

In that sense, yes.

Now Mr. Comer, I want to - - I'm going to hand you

24 an exhibit book and I'd ask you to leave it up there 25 because we're going to refer to several exhibits, and BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11 - 16 - 05

102

1 let me do that now and then I'll start pointing out

2 exhibits. 3

All right.

Mr. Comer, I'm going to first call your attention

5 to a document which is I think labeled as Petitioner's

6 Exhibit 75. MR. ROBINSON: Your Honor, this is a - - we

8 submitted a supplemental exhibit list yesterday, and

9 this would be one of those two exhibits. 10

document.

(By Mr. Robinson)

Mr. Comer, this is a three-page

I'm happy to have you read through its

12 entirety but I'm mostly going to be interested in the 13 paragraph on Page 2 that starts wi th "photograph No.5." 14 It starts about the middle of the page and continues to 15

notquita the bottom of the page.

If you would read

16 that paragraph to yourself, please, and then I'll ask 17

you some questions.

A (Witness complies) All right.

Now, Mr. Comer, you recognize this as being a

20 supplementary investigation report of the Pampa police 21 Department? 22

Well, it's been ten years since I' va seen it but I

23 believe it is. 24

Well, at least you recognize it as being in similar

25 form to what the Pampa Police Department prepared? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

103

EVIDENTIARY HEARING, VOL. I 11-16-05 1

Yes.

And do you recall this particular document? Do you

3 have a recollection of it today, or it might refresh 4 your recollection from 5

Well, I have no recollection now of this document.

Well, in this document, in paragraph - - where it

starts with Paragraph 5

or excuse me, discusses

8 Photograph 5 on Page 2, it is talking there about blood

9 spatter and other blood on one of the victims, Elwin

10 Caler; is that correct? 11

Tha t ' s correct.

And it's about half-way down, talking about blood

13 spatters of a circular shape that were on his abdomen

14 and underpants. Do you see that? A Yes, I see that. 15 All right. I want to point out 16 Q

to you particularly

17 the last sentence, which says, "These pat terns would

18 indicate this victim was present in the immediate 19 vicinity of victim Twila Busby at the time of her

20 assault." Do you see that? 21

Yes.

Now, I'm going to represent to you, Mr. Comer, that

23 this particular document, you can see that it has 24 Defendant's Exhibit 1 labeled on it on

the front page,

25 as well as State's Exhibit 4-B, and I'll represent to BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

104

1 you that this particular document was admitted by Judge

2 Sims during the testimony of a Morse Burroughs. Are you

3 familiar with Morse Burroughs?

Yes.

Q And Mr. Burroughs

to the jury. The jury was not allowed to actually see

was allowed to read this report

7 the report but he was allowed to read this report to the 8

jury.

No. I take your word for it.

Well, for the court's benefit, that occurred at

Do you remember that occurring at the trial?

11 Pages 216 and 217 in the original trial transcript. 12

All right. Now, if we accept

THE COURT: Did he read the entire document?

14 My recollection is the defense offered and asked him to 15 read certain things but I didn' t think the entire -MR. ROBINSON:

I believe you're right, Your

17 Honor, that there were some sentences after the passages 1l that I asked Mr. Comer where - - Mr. Comer made

19 obj ections to reading those to the jury and they were 20 not read, but at 216 and 217, where the paragraph that

21 deals with photograph No. 5 was read into the record, 22 Your Honor. 23

(By Mr. Robinson)

Now, if as Detective Morse

24 Burroughs concluded in this report, that there were two

25 nearly circular shapes spattered on the left side of the BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. I 11-16-05

1 victim, which indicated that they originated somewhere 2 to the vict im' s left side and were in the immediate

3 vicinity of victim Twila Busby at the time of her 4 assault, would that have meant that the killer would 5 have had to dealt with both Twila Busby and Elwin Caler

6 at the same time in the same room?

7 MS. HAYES: Objection, Your Honor, on the 8 phrase 'dealt with.' Would he be more specific?

9 THE COURT: What was your question? MR. ROBINSON: Well, let me rephrase the

11 ques tion. 12

(By Mr. Robinson)

Mr. Comer, Detective Burroughs,

13 or Officer Burroughs, was concluding in that report, was

14 he not, that Elwin Caler had to have been in the

15 presence of his mother in order to have received those

16 blood spatters on his shorts? 17

I think that's what this would mean, yes..

And if he was in the presence of his mother at the

19 time his mother was being beaten, and there was c~stoft

20 blood on his undershorts, that meant that he was in the his mother 21 same room at the same time as his mother when

22 was being beaten to death, correct?

23 A That's the way this appears, yes. 24 Q And if there was a single person who is committing 25 the murder of Ms. Busby, that meant that he would have BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. I 11-16-05

1 also had been committing that murder at the time when 2 Elwin Caler was in the same room with him at the same

3 time? 4

I think that's a reasonable conclusion.

Now, you testified earlier that one of your

6 defenses, in fact, maybe you agreed that it was your

7 principal defense, was that Mr. Skinner was too 8 incapacitated with alcohol and Codeine in his system at 9 the time of the murders to have commi tted the crime? 10

Well, I haven't testified before.

I assume that

11 you mean in an affidavit that I prepared? 12

Well, I just - - I just went over this a couple of

13 minutes ago - ~ 14

Oh, okay, I'm wi th you.

Mr. Comer, would it have bolstered the argument

16 that Mr. Skinner was too incapacitated by Codeine and

17 alcohol to have committed the crimes if, in fact, Mr. 'i 1

was in the room with his mother at the time she

at- Caler

19 was being beaten? 20

I'm not too sure of the connection between the two,

21 but are you asking me whether or not that would lend

22 credence to his -- our defensive theory that he was too 23 intoxicated to have committed the acts that he was 24 attributed to have committed, if Elwin Caler was in the

25 same room at the time? BETTY TATE, 3101 TOWNBLUFF DR.. #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. I 11 - 16 - 05 1

No.

Would that not have made it more difficult for

2 him to commi t the murders if Mr. Caler was in the same

3 room with his mother at the same time? In other words, 4 the murderer would have had to have dealt with them both

5 at the same time? 6

Because of his intoxicated state?

No, putting aside the intoxicated state.

Whoever

8 the murderer was, if Caler and Twila Busby were in the 9 same room at the same time, the murderer would have had

10 to dealt with them both at the same time, correct? 11

Yes, I see what you mean.

And that would be more difficult, would it not,

13 than each - - than the assailant having to attack each of 14 them separately? 15

I think that's reasonable.

And therefore it would have bolstered the defense

17 that Mr. Skinner was too intoxicated to have murdered

18 even one person if in fact there were evidence that he 19 would have had to have murdered both of them in the same

20 room at approximately the same time?

21 A You mean adding into the equation that he was 22 intoxicated would have made it even more unlikely that

23 he would have been able to kill both at the same time? 24

You've said it bet ter than I could.

I think probably

that ' s reasonable.

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EVIDENTIARY HEARING, VOL. I 11-16-05 1

108

Now Mr. Comer, do you recall whether or not you

2 made this information about the blood spatter on Elwin

3 Caler's shorts available to Dr. Lowry, your defense

4 expert on intoxication? 5

I don't remember that we discussed that.

Is there any reason you can think of today as you

7 sit here as to why you would not have disclosed that

8 information to Dr. Lowry A

No, other than it probably just didn' t occur to me

10 at the time as being that important. 11

All right, thank you.

Let me ask you to go to

12 Plaintiff's Exhibit 13, which should be in Volume 1, and 13 it's an affidavit that you signed on October 28th, 1997. 14

Okay.

I'm swi tching subj ects here by the way, and I'm

16 going to the subj ect of Mr. Skinner's Codeine ingestion 17 at the time of the murders, and if you haven't recently, "

1~ I'd like you to _ review that aff idavit to refresh your

19 recollections of what you said there. 20

MS. HAYES: We're obj ecting on relevance

21 grounds since obviously Mr. Comer is here and can 22 testify about everything, and he hasn' t established that

23 Mr. Comer doesn't have knowledge of this already so that 24 he'd have to be reading the information to start with. I think the obj ection is - - the THE COURT: 25 BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, YOLo I 11-16-05

109

1 affidavit is not proper because you're refreshing your ask him a question. You show

2 witness' memory before you

3 him an affidavit and let him read it before you even ask

4 one question. I know this has been a long time but I 5 think the way we need to proceed is to ask the witness a 6 question and if the witness doesn' t recall then he an

7 (inaudible) . MR. ROBINSON: That's fine, Your Honor.

9 thought it would expedite things if I showed him the

10 affidavit and then I ~ - I did not intend to ask him 11 whether he's - - I did not intend to offer this exhibit, 12 I guess, for the purpose of the truth of what it says

13 because he is here to testify, and I will ask him to 14 testify, but I thought this would be (inaudible). THE COURT:

I f we get into a sit uat ion where

16 it's clear that (inaudible). MR. ROBINSON: All right.

18 Q (By Mr. Robinson) Mr. Comer, do you recall giving

19 an affidavit on October 28th, 1997 relating to the 20 subj ect of jail records that might have reflected 21 whether Mr. Skinner had reported an allergy to Codeine? 22

This has refreshed my memory. Yes, I remember.

Did you remember before I refreshed your

24 recollection with that document? 25

Well, the question you just asked about the jail

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, YOLo I 11-16-05

110

1 records I probably would have not known until I reviewed

2 this. 3

All right.

Generally I remember the discussion about a Codeine

5 reaction and things of that nature, but -6

Okay. Well, let me put it this way. Did you

7 recall that subsequent to Mr. Skinner's trial and after

8 you no longer represented him, that you were approached

9 by representatives of his subsequent state habeas

10 counsel, Mr. Losch? 11

Yes.

And you were also approached by some of his

13 investigators? 14 A Yes. 15 Q And do you recall that they showed you at that time 16 some jail records of Mr. Skinner?

17 A Yes. "

1~(

The jail records that are referred to in this

19 affidavit? 20

Yes.

If you go to Petitioner's Exhibit i1 - - do you see

22 Exhibit 11? 23

Yes.

Are those the

jail records that you were shown? Do

25 you have any reason to believe they are not the jail BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

111

EVIDENTIARY HEARING, VOL. I 11-16-05

1 records? 2

No, I have no reason to believe they're not.

3 course, this has been sometime ago, but I have no reason

4 to believe they're not. 5 Q Mr. Comer, looking at these j ail records would you 6 agree that they indicate that Mr. Skinner at least

7 reported to j ail officials that he was allergic to 8 Codeine? 9

Yes.

Now if you had - - well, first of all, let me ask

11 you do you recall whether you had access to these jail

12 records prior to trial? 13

I don't remember having access to these records.

Do you recall having seen them before they were

15 shown to you by Mr. Losch or one of his representatives? 16

No.

And had you had access to these j ail records prior

18 to trial, would you have made the information about the 19 allergy to Codeine known to your expert, Mr. Lowry, Dr'.

20 Lowry?

21 A Here I go again trying to delve into my mental 22 processes that long ago, but

had I known that he was

23 allergic to Codeine I think probably I would have

24 mentioned that to Dr. Lowry. 25

Let me call your attention to the fourth paragraph

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EYIDENTIARY HEARING, VOL. I 11 - 16 - 0 5

112

1 of Plaintiff's Exhibit 13, the affidavit ,and the fourth

paragraph down on the page..

It starts with, "If the

3 state had turned over - - . Ă&#x; Do you see that? 4

What are you looking at?

I'm sorry, 13. We're back to 13, which is your

6 affidavit. 7

All right. Okay. What did you want me to look at?

The fourth paragraph that starts with" If the state

9 had turned over - - "

10 A Okay.

11 Q Does that first sentence refresh your recollection 12 as to whether or not you would have turned this over to

13 Dr. Lowry? 14

Right.

Did the district attorney's office have aD open

16 access policy with respect to discovery at the time you 17 were preparing this case for trial? l

1~-'

Yes, they did.

How did that work?

Well, it was not only an open file policy. We

21 could go to the DA's Office and review the entire file, 22 and then he would make us copies of those records, and 23 sometimes he'd make copies when we didn' t request them,

24 all records that related to the case, and he would just

25 send them to us. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

113

EVIDENTIARY HEARING, VOL. I 11-16-05 1

Well, my next question was going to be suppose you

2 went over and looked at the fi le on - - just pick a date, 3 March 15th, and that was still several months before 4 trial, and you reviewed that file and copied everything

5 in that file that you wanted to copy, would you then 6 subsequently have to go back every so often .to look at

7 the file again to see how it had been updated or would

8 the district attorney usually provide you the

9 information as to the update? 10

As to matters that you had requested or that you

11 hadn' t? The way it worked, I would go up and look at 12 the file, and I'd go through the file and I'd say all

13 right, I'd like to have a copy of the entire file, and

14 they would make me a copy of the entire file. Later on 15 if there was anything that supplemented their file, they

16 would send it to me without any request, and they Bates 17 numbered each one, but we were provided, as I recall, 18 with all of the documents that related to this case from

19 the district attorney's office. Anytime they got,

20 anything addi tional, they would also furnish that to us, 21 so it wasn' t - - when you say did I have to go up there

22 and look again to get different information, they would

23 just send that to us. 24

Okay. And you believe that during the course of

25 your preparation for trial on

this case you did

review

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

114

1 the district attorney's file, including any material as

2 it was updated to keep abreast of what -3

Oh, yeah --

Excuse me - - to keep abreast of what was in the

5 district attorney's file? 6

Yes.

Now if there had been Skinner medical records in

8 that file then, you would have seen those records? 9

I would have seen them.

And if you had noticed that those files containing

11 medical records of Mr. Skinner indicated that he was 12 allergic to Codeine, you would have provided that

13 information to Dr. Lowry? MS. HAYES: Obj ection, Your Honor, even the

15 last question. They both assume facts not in evidence. 16 I mean would medical records have been in the files?

17 Would you have seen - - I mean there's no showing that l.r

would actually even be in the DA's files

l' those records

19 to start with. MR. ROB INSON: We're going to get to that,

Your Honor.

I was asking him - - before I showed him the

22 files, I was asking him whether if he had seen that

23 information-THE COURT:

I'll allow the question.

Mr. Robinson, as I said, I don't remember seeing

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, YOLo I 11-16-05 1

these medical records prior to the time that we went to

trial. As I noted, I may have seen them, breezed

through them, and not, you know, realized their import,

and particularly maybe at that time whether he was

allergic to Codeine or not probably didn't strike me as

being something that was very essential to our defense

at that time.

st.ate laboratory reports which indicated that Mr.

Skinner had taken Codeine and alcohol to the extent that

it would have been physically impossible for him to have

committed the offenses that he was alleged to have

committed.

I know that we had Dr. Lowry review the

That was his opinion.

So if I go through here and see that he's

Âż

115

allergic to Codeine, that wouldn' t have struck me as

having too much importance.

contest the finding that he had taken Codeine into his

body, because that was part and parcel of Dr. Lowry's

testimony, and

allergic to Codeine for the purpose to attack the lab

report, for example, the state lab report, would not

have been - - wouldn' t have been appropriate for us to do

because it could detract from our theory that he had, in

fact, taken Codeine in the past.

sure.

Q Well, I understand what you're saying and that's BETTY TATE, 3101 TOWNBLUFF DR.

Certainly I didn' t want to

so for us to bring forth that he's

(Inaudible), I'm not

#923, PLANO, TX. 972-596-9442

116

EVIDENTIARY HEARING, VOL. I 11-16-05 going to require me to ask some more questions.

I'm

2 sorry. 3

Okay.

Let me make sure you understand one thing here

5 because Ididn' t mean to mislead you with my last

6 questions. What I'm talking about now are the jail 7 records that might have been in the district attorney's 8

file.

records in the district attorney's file.

I'm not talking about the - - excuse me, medical I'm not

10 talking about the jail records that I pointed out to you 11

as Exhibit 11.

I'm talking about - - I'm now talking

12 about - - r' m not showing you any particular documents at if there had been 13 this time, but I'm just saying to you

14 medical records that, similar to Exhibit 11, indicated 15 that Skinner had reported that he was allergic to

16 Codeine, would you have shown that information to Dr. 17 Lowry to try to determine from him whether he saw any l ;:

1~: evidentiary significance to that? 19

And I know that in the affidavit I said that had 'I

20 had that information I would have probably showed it to

21 Dr. Lowry to determine what the effect of that allergy 22

would be.

I probably would have.

All right. Let me ask you to turn to an exhibit'

24 you don't have right now... Mr. Comer, I'm handing you

25 Exhibit 38, Respondent' sExhibit 38. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

117

EYIDENTIARY HEARING, VOL. I 11-16-05

MS. HAYES: Okay, obj ection again on

2 refreshing recollection before he's asked questions 3 about the document at issue ~

4 THE COURT: 38? 5

MR. ROBINSON: 38, Your Honor.

THE COURT:

(Inaudible) Well, this is not the

7 statement of this witness. Objection overruled. 8

(By Mr. Robinson) Mr. Comer, do you have Exhibit

9 38? 10

Yes.

11 Q Well, I thought I had a copy of it here 12 (inaudible). Mr. Comer, do you see there are some page

13 numbers down in the lower right-hand corner that says 14 MEDS, dash, and a page number? 15

Yes.

If you'd go to Page 041. Well, actually before I

17 ask you to look at Page 041, just to take care of the 18 anticipated objection, do you recall Judge Muns, Justice 19 of the Peace Muns, issuing an order in this case 20 requiring the Coronado Community Hospi tal

to release the

21 records and documents of Henry Watkins Skinner? 22

No.

Looking at Page 41, does that refresh your

24 recollection? 25

Well, this appears to be an order that he signed

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11- 16 - 05 1

for that purpose.

I have no

118

independent recollection of

2 having seen that. 3

Let me ask you to go to Page - - I think I've

4 already asked this question and you've given me an

5 answer, but let me make sure.

6 You don' t recall ever having seen in the 7 district attorney's file any medical records of Henry

8 Skinner? 9

No.

And therefore you wouldn' t have recalled seeing any

11 medical records that indicated he had an allergy to 12 Codeine? 13

No.

And I should also say to you that Plaintiff's

15 Exhibit 38 has been represented to us by the state as 16 being medical records of Henry Skinner from the district

17 attorney's file, and let me ask you to turn to 1~ Plaintiff's Exhibit -- excuse me, Respondent's Exhibit 19 38, Pages - - let's start with Page

SO . Are you there7

Okay.

I'm going to call your attention to a place that

22 there's kind of a bold black line across the page about 23 a quarter of the way down that says, "Charge cluster

24 information," and then right underneath that those 25 words -- do you see the word allergies? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-944

EVIDENTIARY HEARING, VOL. I 11-16-05 1

Yes.

And do you see where it says next to allergies

119

3 somebody has writ ten in Code ine? 4

Yes.

5 Q And do you recognize this as being a medical record 6 of Henry Watkins Skinner for a hospital visit at 7 Coronado Hospital on 8-14, I believe that's' 94? 8

, 93?

Could be ' 93 .

8-13-93.

Oh, you're right.

written one down at the bottom.

I see it.

I was looking at the It isn' t very legible,

13 but I do see 8-13-93, sorry.

14 All right. So you see that that particular 15 document does indicate that Mr. Skinner at least

16 reported that he was allergic to Codeine? 17

Yes.

Let's go to Page 51, which is just the next. page.

19 Another similar report. This time same hospital visit, 20 I guess, 4-10-93. Do you see there that it also

21 indicates that Mr. Skinner is allergic to Codeine? 22

Yes.

And I think the next one I want to show you is

24 Exhibit 46. 25

Which one?

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EVIDENTIARY HEARING, VOL. I 11-16-05 1

120

I'm sorry, not Exhibit 46, Page 46 of the same

2 exhibit, and this appears to relate to a hospital visit 3 on 10-14-93, and again looking at the allergies' line

4 you see that Codeine, among other things, is reported 5 there as being something Mr. Skinner was allergic to? 6

Yes.

Now, I want to call your attention to Page 31 of

8 this exhibit. Actually 30 and 31, and do you see there 9 a couple of pages that appear to be records of 10 prescriptions that Mr. Skinner was prescribed in 2000 --

11 excuse me, that's not 2000 -- in 1993 by Dean's Pharmacy 12 on Page 30 and by I think it's Wal-Mart Pharmacy on Page

13 31 ? 14

The one I'm looking at on Page 30 is a prof i le from

15 January the 1st of '89 through January the 6th, '94. 16

Right.

Is that the one --

Yeah, I was just looking at the dates down by

the

19 dispense date. 20

All right.

where it seems to be all '93.

All right.

In any event, Mr. Comer, I'm going to ask you to'

24 look down both of those lists and see whether you see 25 Codeine listed there as something that Mr. Skinner was BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-S96~9442

EVIDENTIARY HEARING, VOL. I 11-16-05

121

1 prescribed by these two pharmacies? 2

I see Hydrocodone.

You see Hydrocodone.

No.

All right. Mr. Comer, do you recall actually

Do you see Codeine?

6 having these records that I've just shown you from

7 Respondent's Exhibit 38 in your file? 8

No.

Mr. Comer, I'm going to use a document that's not

10 been marked as an exhibit, to refresh your recollection.

11 Be fore I do that, the rules require that I show it to 12 Ms. Hayes, so if you'll excuse me for a moment, I'm

13 going to do that. Now Mr. Comer, did you maintain your files in

15 three-ring notebooks? 16

Yes.

17 Q I'm going to hand you a three-ring notebook, and

18 for purposes of the record I will state that it' says on 19

the f ron t cove r

it's a brown three-ring notebook, ~nd

20 on the front cover it says "Texas Collections Manual,

21 State Bar of Texas, created in 1939, Professional 22 Development

Program, " and on the back spine somebody has

23 taped here a paper that says "Vol. 9, Miscellaneous, 24 State vs. Henry Watkins Skinner." Do you recognize this

25 as being the manner in which you kept your files at the BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

122

EVIDENTIARY HEARING, VOL. I 11 - 16 - 05

1 time? A

I know I kept them in similar three-ring binders

3 just exactly like you've got there. 4

Let me represent to you, Mr. Comer, that

we 11,

5 first a question, maybe what happened to your files 6 after you finished representing Mr. Skinner in this

7 case? A

I think they were delivered to Mr. Losch.

His

9 representative or somebody picked them up I think for

10 Mr. Losch. 11

I'm going to represent to you, Mr. Comer, that

12 after Mr. Losch died, his widow sent to me his files,

13 which included the documents which appear at least

14 to be the file of ~- or part of your original files, and 15 it includes this notebook that I'm holding in my hand,

16 and I will represent to you that we found this notebook

17 intact in this form. 1~ Now I'm going to hand you this notebook รกnd l I'

19 ask you whether or not it refreshes your recollection as

20 to whether or not these medical records that I just 21 showed to you were in your file. 22

All right.

And if you'd flip around there a page or two

24 probably in either direction, I think you'll see the 25 same medical records that we were just referring to in BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

123

1 Re sponden t 's Exhibi t 38. 2

Yes.

I may have talked over you.

I f you could give your

4 answer again? 5

Yes.

Thank you. Having your memory refreshed by this

7 document, would you agree that it appears that you did

8 have these medical records in your file? 9

Yes, I think it does but it doesn't refresh my

memory that I remember reading them or seeing them.

11 you represent that this was in the file that you did get 12 from me, yes. 13

All right, thank you.

THE COURT: How much longer do you need on

15 direct? MR. ROB INSON:

It's going to be a while, Your

1 7 Honor. THE COURT: We'll take a break. The court

19 will be in recess until 1: 30.

20 (Recessed for Lunch) THE COURT: You may proceed.

21 22

(By Mr. Robinson) Mr. Comer, we were talking about

23 some hospital and prescription records this morning and

24 I want to stick with those for a little bit, if I can. 25 Could I get you to go back to Respondent's BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

124

EVIDENTIARY HEARING, YOLo I 11-16-05

1 Exhibi t 38, and I'm going to ask you about some

2 documents in there, or some pages of that document that

3 were not in your file, at least we didn't find in your ...".

4 file, and I ask you to turn to Page 29 of Respondent's

5 Exhibit 38. Do you see there another prescription list? .

Yes.

Do you see Codeine

No.

Let's go to Page 7. Page 7 looks to be an

on that list?

10 ambulance report of Memorial Hospi tal, Natrona County,

11 Casper, Wyoming, dated 5-11-85, and I don' t want to 12 dwell on this at great length but the comments there

13 indicate that Mr. Skinner was sitting in a chair in his 14 living room and somebody came in off the street and hit

15 him with a baseball bat, and if you'll look at the upper 16 le ft - hand corner there, it looks like the copying cut 17 off some of the words at the left-hand side of the page ,

l~t there, but do you see where it looks like we may have

19 the end of the word allergies about a third of the way' 20 down the page? 21

Yes.

Do you see that?

Yes.

Do you see somebody wrote in NKA, which could stand

25 for no known allergies? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

Yes.

If I can then ask you to go over to Page 12 --

125

3 well, the same document, and do you see that this was 4 also Memorial Hospital, Casper, Wyoming, and appears to 5 be some additional notes that appear to be written up by 6 the same hospital, same - - essentially the same

7 incident? Do you see that? 8

I see what you're referring to.

Okay.

And I just want to call your attention to

10 the last entry on that page entered at 11~OO a.m., and 11 if you go down to the third 1 ine on that page, or the

12 third line on that entry, do you agree with me that it

13 says there Codeine allergic, question mark1 has taken 14 Percodan and then there's a medical symbol I think that 15

means wi th no problems.

Do you see that?

I see what you're referring to but it's hard for me

17 to make out exactly what the wording is there as far as 18

the first line.

May the 11th.

There's some words on the third line on I'm not

I'm assuming that that says

20 Percodan but certainly if I had seen that without 21 knowing the context which you're asking, I probably 22 wouldn't have recognized that word as being Codeine.

23 Q All right. But you agree with me after looking at 24 it now and looking at it carefully now that that's what

25 it could say, is "Codeine allergic"? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

126

EVIDENTIARY HEARING, YOLo I 11-16-05 I'm just not sure.

I just can' t tell from that

2 writing what it says. 3

All right.. Now

THE COURT: what was the last entry you asked

5 him about? MR. ROBINSON: The last entry was Page 12,

7 Your Honor --

THE COURT: Are you talking about that .11: 00

9 a. m.? MR. ROB INSON: The 11: 00 a. m. one.

I referred

11 to the third and fourth lines, Your Honor. THE COURT: I have it.

12 13

(By Mr. Robinson)

Okay.

probably asked you this

14 before lunch but in case I didn't, let me just make sure 15 and I' 11 ask it again.

16 If you had been aware of the records that I've 17 pointed out to you in this Respondent's Exhibit 38 and ,

18 (. in the j ail records that I showed you earlier in 19 Plaintiff's Exhibit -- Petitioner's Exhibit

11, plus

20 those documents I pointed out to you which you appeared 21 to have copies of in your file, all of which had some

22 indication in there that Skinner had reported an allergy 23 to Codeine, you would have made those documents known,

24 or at least you would have made the information on those

25 documents known to Dr. Lowry? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. III - 16 -D 5

MS. HAYES: Okay, obj ection.

1 2

point of it being oh so leading.

THE COURT: Overruled.

Just for the

I'm trying to go back, Mr. Robinson, and look in my

5 mental process at the time that the issue of Codeine 6

allergy came up.

I placed no significance as I recall

7 on any knowledge that I had., if any, about whether this

8 defendant was allergic to Codeine. I think I must say, 9 trying to go back to that time, whether or not the

strike

10 defendant was allergic to Codeine probably didn't

11 me as being too significant at the time, and the reason 12 I say that is because we had an expert, Dr. Lowry, who

13 was partially basing his opinion upon the digesting of 14 Codeine by Mr. Skinner.

15 Now had then I known that he was allergic to 16 Codeine, I'm not too sure that, being a lay person, that where I would 17 that would have connected to the point

18 say, okay, let me ask you about this, Dr. Lowry.

19 Whether or not that would enhance or whether or not th~t

20 would cause his ability to function to be any less than

21 what it was that you've already told us that it was 22 because of the ingestion of Codeine itself. 23 When you asked me whether or not I would have

24 brought that to the attention of Dr. Lowry, and I think 25 back on it and wondered well, would that have been such BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EYIDENTIARY HEARING, YOLo I 11-16-05

128

1 glaring evidence or a glaring indication to me that 2 maybe

this is something that would be relevant to Dr. Lowry's testimony, I'm not sure.

Now, I know the

4 affidavit that I signed said that had I known this 5 information I would have brought it to the attention of

6 Dr. Lowry, but I think that was an affidavit prepared by

7 Mr. Losch and signed by me, but thinking back now, at

8 that point in time I doubt if I would have recognized 9 that that would have any particular significance to Dr.

10 Lowry. And maybe I ~gnored it for this reason, Mr. 11 Robinson, or perhaps it didn' t seem that important 12 because we already had an opinion from Dr. Lowry that

13 based on the ingestion of Codeine, that he would be 14 incapable of performing the physical acts that were 15 necessary to commit this offense. And so with that knowledge in hand, I probably

17 thought this would have been superfluous or unnecessary ,

11 for me to bring to his attention, and as I said before, 19 I think probably - - I may have taken it in the vein that

20 here I'm going back trying to extrapolate what I was

21 thinking about, but I might have thought it might be an 22 attack on the basis of his opinion that he had - - that

23 Mr. Skinner had ingested Codeine, so that's a long 24

answer saying I don't know what I would have done.

25 don't know whether it would have seen that significance BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. I 11-16-05

1 in it to me to cause me to raise a red flag and say we'd 2

better go talk to Lowry about this.

I just can't say

3 whether that would have made that much difference to me. 4

Just so the record is perfectly clear on this

5 subj ect, you did not have any recollection of being made

6 aware of the possibility that Mr. Skinner was allergic

7 to Codeine? What I'm trying to do is -- I'm just trying 8 to separate from your last -THE COURT: Okay. Let him answer that other

10 question. MR. ROBINSON: Okay, could I give him a

12 preface before I ask him to answer the question? 13

(By Mr. Robinson)

I'm trying to separate basically

14 what you remember from what you're now telling us you

15 might have done had you been aware of this 16

That's difficult to do but I'll

See if you can do that for me.

All right.

Do you have a recollection that you were actually

20 aware of his allergy to Codeine before trial --

21 A Pretrial? 22 Q Pretrial? 23 A No. 24 Q And so when you gave an answer discussing what it 25 was that you might have done, that was you sitting here BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. I 11-16-05

1 today now armed with the knowledge that maybe he was

2 allergic to Codeine, and you're explaining whether or 3 not you might have made that available to Dr. Lowry? 4

Yes, I think you asked me if I had known that at

5 the time would I have made that known to Dr. Lowry, and

6 I did my best to answer it. 7

Mr. Comer, did you ever personally or have an

pretrial and go 8 investigator sit down with Mr. Skinner

9 over with him all of the times he had ever been

10 hospitalized? I don't think I did, sir. A 11 12

Do you recall either yourself or anybody working

13 for you, making a systematic effort to try to come up

14 wi th all medical records that Mr. Skinner might have 15 ever generated over his lifetime? I have a vague recollection that we did that; that

we were trying to find out his medical background.

11 seems as if we did do that. 19

Do you recall whether you had a file on that

20 subj ect ? 21

No..

Do you recall whether you came up with any

23 documents, medical record documents, other than the ones

24 that were provided to you by the district attorney's

25 office? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. I 11-16-05 1

No.

Do you recall whether you ever had - - well, let me

3 back up a second.

4 I f you didn' t interview Mr. Skinner to 5 determine all of the various medical incidents that he lifetime, how would you know where to look

6 had over his

7 for his medical records? 8

I don't know.

I know that when we asked the court

9 for money to have Mr. Skinner analyzed for competency

10 and for sanity, the doctor, Dr. Walker I believe it was, him all the information we

11 requested that we furnish

12 couLd that was, in fact, related to his mental condition 13 as to whether or not he had any, - - as I recall, any 14 brain damage, or organic brain damage, or whether or not

15 he had been hospitalized for any emotional disturbances

16 or things of that nature, and as I recall, we furnished 17 the doctor, Dr. Walker, with as much information we 18 could about that so that he'd have some background of

19 some basis when he was evaluating Mr. Skinner for sanity 20

or competency.

Go ahead.

I didn't mean to interrupt you.

I f you had more to

22 say, go ahead 23 A No. 24 Q Did that include medical records of other than the 25 mental nature? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

132

EVIDENTIARY HEARING, VOL. I 11-16-05 1

I don't know, I don't remember.

I want you to go back to Plaintiff's Exhibit 13,

3 which would be in one of those white books, .Mr. Comer. We were looking at it this morning.

It's your

5 affidavit. 6

All right.

Do you see at the very bottom of the first page,

8 carrying on to the second page, you said, "Mr. Skinner 9 never told me about his allergy to Codeine and I never

10 thought to ask him?" 11

Yes.

Left out the last two words, "about it."

On the next page.

Is that still your recollection, that Mr. Skinner

15 never told you about his allergy to Codeine? 16

That's my recollection, but since then I think you

17 furnished me a letter in which Mr. Skinner wrote me a .fr

l' letter and advised that he had some allergy toCod~ine. 19

All right. Let's go to Plaintiff's Exhibit 6, and

20 I believe is that letter, or at least an excerpt from

21 that letter. 22

Exhibi t 6?

Let me make sure I'm on the right one here.

I'm

24 sorry, let's do Plaintiff's Exhibit 6. That's a letter 25 from you to Hank Skinner dated 6-24-94, correct? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

133

EVIDENTIARY HEARING, VOL. I 11-16-05 1

Yes.

I just wanted to bring this to your attention

3 because it's sort of a preface to the next exhibit that 4 I'm going to show you.

MS. HAYES: Again, Your Honor, we'd obj ect to

6 showing the document before any questions have even been

7 asked, and testifying from the documents as well. And

8 then as a third objection, especially on No.6, it's 9

certainly an incomplete exhibit.

It's cut off after the

10 first sentence on the first paragraph and it goes 11 through at least the second page, but we'd obj ect under

12 the rule of optional completeness. THE COURT:

I'm going to rule that we not

14 (inaudible), but if you're going to - - if you're going 15 to question him about No.6, then do so. MR. ROBINSON:

complete.

Your Honor, the document is not

It does have some material redacted on part

18 of the first page, as you can see, and the reas6n that's

19 redacted is that it was information not relevant to any

20 of the issues in the case, and it's our understanding 21 that the respondent is not obj ecting to this particular 22 document, or in fact, the next document I'm going to 23 show him, which is Plaintiff's Exhibit 7 -24 25

MS. HAYES: Your Honor, we've never not obj ected to the incompleteness of the documents.

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EVIDENTIARY HEARING, YOLo I 11-16-05

remember - - I've actually specifically mentioned

1 fact, I

2 that I would be obj ecting to incomplete documents to

3 give them a warning to please bring a complete set with 4 them so that you could have a chance to review it to see

5 if in fact what's been redacted is irrelevant. MR. ROBINSON: That's fine, Your Honor.

have no problem with that.

In fact, Mr. Comer has up at

8 the chair there, he does have a complete copy in one of those files, but let me get to that.

I f I can go ahead

10 and question him on what's on this page and then we'll

11 deal with that problem. THE COURT: All right.

12 13

(By Mr. Robinson)

Let me ask you this to deal with

14 one of Ms. Hayes' objections. Do you recall having an 15 exchange wi th Mr. Skinner regarding whether or not the 16 district attorney would accept a plea bargain? 17

Yes.

And

it/

1~:

do you recall writing to Mr. Skinner on the

19 24th of June, 1994, advising him that the district 20 attorney, in consideration for a plea of guilty, would 21 recommend three consecutive life sentences? 22

Yes.

And you recall that without being refreshed by this

24 letter, or do you need this letter to refresh

your

25 memory? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

135

EVIDENTIARY HEARING, VOL. I 11-16-05 1

Yes, I recall that.

You do recall that. And you also recall that the

3 district attorney rejected a counter offer to plead

4 guilty to one offense? Do you recall that? 5

Well, I don't think it was quite that sequence.

6 think - - well, I started to say I wasn' t sure whether or

7 not we had initiated an offer to plead guilty in return 8 for the district attorney's representation for a 9 conviction of first degree murder carrying a life 10

sentence.

Whether this was in response to that, in

11 either event I remember the discussion revolved around

12 whether or not - - Mr. Skinner authorized me to make an 13 offer to plead guilty to first degree murder, if the DA

14 would recommend a life sentence, and the district

15 attorney, as I recall, rejected that but in reply as a 16

counter offer he said he would recommend

would

17 recommend three consecutive life sentences on a plea of 18 guilty to the indictment, the capital murder indictment.

19 Q I'm not actually that interested in the details of 20 those plea bargain discussions. What I'm really 21 interested in is whether or not you recall sending this

22 letter to Mr. Skinner in which there had been a

23 discussion about plea bargaining, and in the last 24 paragraph of the letter on Page 2 you told him that you 25 were not sure how long the state's offer would remain BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

136

EYIDENTIARY HEARING, VOL. I 11-16-05

1 open, and if you have a change of mind, let me know

2 immediately. Do you recall having sent such a letter? 3

Yes.

Now I want you to go to Plaintiff's Exhibi t 7 and

5 Plaintiff' sExhibit 7 - - before we start to get into 6 what Plaintiff's Exhibit 7 is, or says, I want you to go

7 back to that notebook I gave you, which you indicated 8 earlier was a file that was in the - - right underneath 9 that book you're picking up there - - there you go. 10

All right. And let me see

if can show you where I want you to

12 go. Let's start there, Mr. Comer. Do you see in your 13 file the unredacted version of the letter we were just

14 looking at, which was Plaintiff's Exhibit 6? 15

Yes.

And then if you'll just flip past that

particular

17 letter, just go to the next letter in the book there. "

1~-

All right.

That is a letter from Mr. Skinner to you dated JUhe

20 25th, 1994, correct? 21

Yes.

One day after Plaintiff's Exhibit 6?

Yes.

And do you recognize that next letter in your file

25 to be an unredactedversion of Plaintiff's Exhibit 7? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 MS. HAYES:

137

I think I mentioned this just a

second ago when he was talking about No.6, but again,

the only copy provided us is say parts of the first two

pages, so again we have an incomplete document.

Certainly we would obj ect under the rule of optional

completeness, or anything inhere, and hearsay, but if

there's some point that they're trying to get with these

redacted versions, we'd at

anything would ever get considered that a whole copy

least ask that before

gets in. THE COURT: Your exhibit has been offered, but

what is the relevance of this? What's the relevance of

the plea bargain?

MR. ROBINSON: Your Honor, the only relevance Mr. Comer wrote a letter to

to the plea bargain is that

Mr. Skinner about the plea bargaining saying get back to

me immediately if you have

dealing with - - interested in taking the, DA's offer of

plea, and the next letter, dated the next day, starts

wi th Mr. Skinner talking about whether or not he will

accept the district attorney's offer, so it is only

evidence that Mr. Skinner did, in fact, write a letter

to Mr. Comer in which it started with that subject, and

I agree that the subj ect itself is irrelevant but what I

want to get to is - - what I'm trying to demonstrate,

if you're interested in

Ă(

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

138

EVIDENTIARY HEARING, VOL. I 11-16-05

1 because the state has at one point at least raised a

2 question about whether Mr. Comer ever received 3 Plaintiff's Exhibit 7, I am doing my best to demonstrate

4 that in fact he did receive that letter. 5 THE COURT: Okay. Have you looked at - - have

6 you found that letter in your file? THE WITNESS:

7 8

(By Mr. Robinson)

Yes, sir, I have.

My question to you, Mr. Comer,

you agreed that that appears to be an

9 was whether

unredacted version of Plaintiff's Exhibit 7.

In order

11 to answer that question you have to get Plaintiff's

12 Exhibit 7 side by side -13

I have no reason to believe it isn't.

You know,

14 the redacted material is all contained in the 15 correspondence that appears to have been written by me 16 to Mr. Skinner and I'm assuming that that is the 17 material that was redacted and it would seem from its (l

19L( content that it was in direct reply to my letter, so I'm 19 assuming that it is a reply that I received from Mr. 20 Skinner after I asked him to

respond to me.

All right. I f I represent to you, Mr. Comer, that 22 we found - - as I did in those earlier documents, that we

23 found that letter in that notebook in that form, would'

24 you agree wi th me that you probably received that

25 letter? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

139

EVIDENTIARY HEARING, YOLo I 11-16-05 1

Probably so.

And in fact, the version of the letter that you're

3 holding in your file, in your hand right now, is an 4 original let ter, is it not; it's not a photocopy? 5

I don' t know whether I'm conf ident enough to

6 recognize an original from a copy nowadays, but it

7 appears to be an original. 8

Well, it's on lined notebook paper, is it not?

Yes.

You can see the blue lines on the notebook paper?

Yes.

And do you see a red margin line down the

13 right-hand side? 14

Yes.

Now I want to call your attention to - - let's go

16 back to Plaintiff's Exhibit 7, so the judge knows what

17 we're looking at here, to the material that was not 18 redacted from this letter, and I want to call your 19 attention to the material that starts halfway down the'

20 first page with the paragraph that says, "I want you to

2 1 prepare - - . " Do you see that? 22

Yes.

And if I can, I'd like to just read to you the

24 portions of this

letter that I'd like you to

focus on.

25 "I want you to prepare a motion requesting the court's BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, YOLo I 11-16-05

140

1 approval to hire the following experts, 11 and the first

2 expert listed is a toxicologist (inaudible) MS. HAYES; I obj ectnow, Your Honor, to him

4 testifying about the documents. He's got the document

5 in front of him. He can go ahead and just ask the 6 question based on the document. He's also testifying 7 about a document that hasn't been admitted. 8

THE COURT: Sustained.

MR. ROBINSON:

If it's sustained on the

10 grounds that it hasn't been admitted, Your Honor, I'll

11 go ahead and have it admitted and explain that that's 12 what (inaudible). ( Inaudible) .

THE COURT:

MR. ROBINSON: Then Your Honor, I would move

15 for the admission of Plaintiff's Exhibit 7. MS. HAYES: Okay, obj ect on hearsay grounds

17 and incompleteness. t,

MR. ROBINSON: Your Honor, I'm prepared to

19 have Ms. Hayes examine the original of this letter. 20

THE COURT:

(Inaudible). What is petitioner's

21 response to the hearsay obj ection? 22 23 24

MR. ROBINSON: Oh, the hearsay objection.

this let ter is being offered not to prove that Mr. Skinner was allergic to Codeine but to prove that he informed Mr. Comer by this let ter that he

Your Honor,

BETTY TATE, 3101 TOWNBLUFF DR. #923,

PLANO, TX. 972-596-9442

141

EVIDENTIARY HEARING, VOL. I 11-16-05

1 believed himself to be allergic to Codeine. 2

THE COURT: The objection will

be overruled on

3 hearsay. On the completeness, you may supplement when 4 you question the witness and when the letter is properly

5 identified (inaudible). Exhibit 7 is admitted.

6 MR. ROB INSON: Thank you, Your Honor. MS. HAYES: So just to clarify, do I get a

8 complete copy or... THE COURT: Counsel has represented he will

can offer it on cross 10 make that available to you and you

11 if you wish to do that. 12

MS . HAYES: Thank you.

MR. ROBINSON: Your Honor, my offer is - - I

14 may be able to work this out without involving Your

15 Honor, but my offer is, since I used this document, the 16 original document to refresh Mr. Comer's recollection of

17 this letter, that I think it comes under the rule of

18 documents used to refresh a witness' recollection. THE COURT: Counse 1, you've of f ered and I've'

20 admitted Plaintiff's 7, which is that letter, into the 21

record.

Counsel has objected on the basis of

22 completeness, and I have ruled that it is appropriate to

23 introduce the entire letter under that doctrine and she 24 may attempt to do so on cross. 25

MR. ROBINSON: All right, we'l.l address it

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

142

EVIDENTIARY HEARING, VOL. I 11-16-05 to that point. Thank you, Your Honor.

1 when we get

(By Mr. Robinson)

Now Mr. Comer, as we've been

3 having this exchange, maybe you've had time to read what Mr. Skinner wrote you.

In this letter did he inform you

5 that he is allergic to Codeine?

6 A Yes. 7 Q Did he ask you to hire a toxicologist to deal wi th 8 this issue?

9 A Yes. THE COURT: Hold up one second.

(Pause)

11 ahead. 12

(By Mr. Robinson)

Did he tell you that if he had

13 ingested Codeine on the night of the murders, the

14 toxicologist would be needed to testify as to the 15 effects of suffering an allergic reaction

while also

16 under the influence of a large amount of alcohol? 17

Yes, that's what he said.

And did he also say that however, it's going to

18f

19 be - - whether he did or didn' t take Codeine, "it's

20 certainly going to have a direct and significant bearing 2l on my mental state and physical state at the time?" 22

That's what he said.

Mr. Comer, during the time you represented Mr.

24 Skinner you got a lot of letters from him; isn' t that

25 correct? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

Yes.

He's a prolific letter writer, as you and I

143

both

3 know, correct? 4

Yes.

Did you read all those letters?

No.

Why didn' t you read those letters?

Well, as you say, he's a prolific letter writer,

9 and when I say I didn' t read them all, I would read over 10

them or give them what attention I could with the time

that I had, but I found that Mr. Skinner's let ters would

have a multitude of irrelevant or insignificant matters,

but then he might

maybe perhaps this that I overlooked, because I

recall, even though this letter is here, of having read

it to the extent that it would cause me to think that it

would be important to have Dr. Lowry or the toxicologist

review the effects of an allergic reaction to Codeine,

and I probably assumed, well, an allergic reaction, that

could take many forms, unknown, and then the process

was --

have a gem

right in the middle such as

don ' t

Let me answer your question.

Number one, I

Number two, if I did read it I'

may have not read it.

wasn' t sure that him having an allergic reaction would

have anything significant to do with our defense of the BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, YOLo I 11-16-05

144

1 case, so in ei ther event I didn't - - as I recall, I 2 didn't advise Dr. Lowry that he might be allergic to Codeine ..

I know on the first page it seems he wanted to

4 attack the lab report because it said that he had 5 Codeine and he said he didn' t have Codeine, that he was

6 allergic to Codeine, and of course, Codeine was - - an

7 ingestion of Codeine that was shown by the state lab was 8 part of - - a significant part of Dr. Lowry's opinion

9 that that amount of Codeine, together with alcohol,

10 could result and probably did result in Mr. Skinner not to have the physical coordination to commit

11 being able

12 the acts, so either I didn't read it or I read it and 13 didn' t give it any particular significance and I 14 simply -- since I had, maybe not at that point 15 (inaudible) and we had Dr. Lowry's testimony relating to 16 Codeine ingestion would have caused him to not be able

17 to participate in the crime. l,

l~t

Well, since you've correctly pointed out that 'early

19 in this paragraph, he questions whether or not the

20 toxicology report is incorrect because of his allergy to 21 Codeine i he does go on in the same paragraph to say, 22 does he

not , that if in fact he did ingest Codeine, then

23 a toxicology expert would be necessary to testify as to 24 the effects of suffering an allergic reaction while also 25 under the inf luence of a large amount of alcohol. Did BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

145

1 he say that? 2

Yes, he did.

Mr. Comer, do you remember being contacted by

4 somebody by the name of Lori Brim? Do you remember that

5 name? 6

Was this a lady that lived in the east, or

7 somewhere else? 8

Let me see if I can refresh your recollection.

9 This is a woman who lived in virginia who had been a

10 girlfriend of Henry Skinner in his early days? 11

Yes.

Do you recall being contacted by her?

Yes.

And what do you recall about that contact?

She wanted to help, and I can' t remember whether I

16 got a letter from her or whether I received a telephone

17 call from her that she wanted to help. She had been a

18 past friend of Mr. Skinner's, perhaps a girlfriĂŠnd, and 19 as I recall it, she might be able to give some evidende

20 that might be helpful in the way of character or be able 21 to talk about Mr. Skinner and her relat ionship with him, his character.

22 and her opinion as to

Anything else you

recall now about that

24 conversation? 25

I think the more I think about the conversation,

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, YOLo I 11-16-05

146

1 she wrote me and then I talked wi th her over the phone. talked about, you

2 I called her on the phone, and we

3 know, j list whether or not she could be helpful to us, that we had were

4 and as I recall the discussions

5 particularly relating to her knowledge of Mr. Skinner,

6 and her opinion of his character. 7

Did you learn from her what she had to say about

8 Mr. Skinner and concluded it just wouldn' t be useful to

9 you? why we didn't call her.

I can't recall

But you did call her?

I did call her, yes.

I'm sorry, as a witness I know you didn't

No, we didn't call her as a witness.

And I take it you didn't know to ask her what she

16 might know about whether Henry Skinner had any allergy

17 to Codeine, or any knowledge she would have on that tr

1N subject? 19

Whether I asked her about it? No, sir, I didn't'

20 ask her. 21

And that's because you didn't know to ask her; is

22 that correct? 23

Either I didn't know or I didn' t think it was that

24 significant. 25

Now if I could get you to go back to Plaintiff's

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

147

EVIDENTIARY HEARING, VOL. I 11-16-05

1 Exhibit 73, which would be in Vol. 2 of those white

2 volumes there, this is the affidavit. Before you look 3 at that, let me just ask you do you recall being asked 4 by the State of Texas to give an affidavit in this case? 5

Yes, I do.

Do you recall when that was, approximately?

(Inaudible). No.

8 Q Do you recall what you said about the subj ect of 9 Codeine in that affidavit?

lOA No. 11 Q I'm going to ask you to look at Plaintiff's Exhibit 12 73 . Is that the affidavit we've been referring to that

13 you prepared at the request of the State of Texas? 14

Yes.

All right, I think there are some numbered

16 paragraphs in that affidavit, correct? I believe we

17 took the liberty of numbering the paragraphs just so it 1B would be easier to refer to them, and I want yd~ to go 19 to Paragraph 13. read as 20 In Paragraph 13 - - and you're free to

21 much of that paragraph as you want, but I wanted to call 22 your attention to the last three sentences which say,

23 ii The toxicologist's opinion was based in part on a 24 toxicology report that defendant had ingested Codeine.

25 Consequent ly, it did not matter that defendant may have BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 been allergic to that drug.

148

It would not have made good

2 sense to at tack the report when it supported the opinion of the toxicologist."

I wanted to ask you about that.

I think you've alluded to this earlier in your

5 testimony. Why did you conclude, if you did, that it 6 did not matter that the defendant may have been allergic

7 to Codeine? A

Again, I'm going back to my mental processes and I

9 think what I had in mind, was that had we brought an

10 at tack upon the lab report as being in error in that Mr. 11 Skinner could not have ingested Codeine because he's 12 allergic to Codeine, it would distract from our expert's

13 opinions, Dr. Lowry, that the ingestion of Codeine and 14 alcohol was the supporting cause for his being so

15 physically incapacitated. Allergic - - to me I suppose, 16 being (inaudible) mental process, I think allergic to 17 drugs, you know, doesn't necessarily suggest to me, t,

1Eff perhaps it should, that that allergy reaction would be

19 such that it would enhance or cause the physical

20 incapacity to be any greater than it was without the 21 allergy. I'm just guessing there. 22

My statement is assuming that you are not an

23 allergist. 24

No, I am not.

You have no training in allergies?

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No, I don't.

You have no medical background that would qualify

3 you to have an opinion on what the effect of an allergic

4 reaction to Codeine might be? 5

No.

Would you agree with me that if there was a

7 question of what the allergic reaction to Codeine might

8 be and how it would influence the testimony here, and

9 the evidence in this case, that it would have been 10 appropriate to have raised that question with somebody

subject?

11 who was knowledgeable on the

MS. HAYES: Object ion, leading.

MR. ROBINSON: It is leading.

THE COURT:

I'll overrule it.

I can only say that it probably didn't occur to me

16 to do that. 17 Q (By Mr. Robinson) And would you agree with me that 18 Dr. Lowry had said that (a), if you had shown it to Dr. 19 Lowry, and made him aware of the evidence of Skinner's 20 allergy to Codeine, and if he had said that would have 21 enhanced the effect of the Codeine or made him even more

22 incapable of having committed the murders, would you 23 agree that that would not have been an attack on the

24 report? 25

That would not have been.

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As you sit here today can you think of any

2 stra tegic reason why you did not make Dr. Lowry aware of

3 information you had that Mr. Skinner was allergic to

4 Codeine? A

No, I didn' t cons ider that.

I mean, you're

6 assuming, I think, in your question that I would have 7 some knowledge about, as you said, an allergic reaction 8 to Codeine, and that knowledge would lead me to believe

9 that, you know, that there was something that would be

10 helpful there, but I had no strategic reason not to tell 11 Dr. Lowry, you know, that according to medical reports

12 and so forth, that he was allergic to Codeine but 13 perhaps I should have told him. 14

All right, I want to leave the subject of Codeine,

the subject of Robert Donnell. Was

15 finally, and go to

16 it part of the defense strategy to cast suspicion on

17 Robert Donnell? rr

Yes.

And in fact, you did present

some evidence at th~

20 trial that did tend to cast some suspicion on Robert

21 Donnell as an alternative? 22

Yes, I sir, I probably did.

And did you conduct any investigation, you or

24 anybody working under your direction, conduct an

25 investigation of Robert Donnell to try to come up with BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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151

that would cast suspicion on him as an

evidence

alternate suspect?

A I think we offered two witnesses and also I think

when we examined Howard Mitchell, the state's witness,

in cross we brought out that at the

that Mr. Donnell had been making sexual advances or

being aggressive toward, or improper toward Twila, and

then we had two other witnesses I believe that supported

that that we used at trial, to suggest to the jury that

party that evening

perhaps the police should have investigated someone

other than Mr. Skinner as being the person who was

possibly the murderer, I recall that, yes.

Q Did you make a conscious decision - - do you recall

whether you made a conscious decision to stop

investigating Robert Donnell where you did?

A A conscious decision to stop investigating him?

Q Yes.

t( 18

A No, we presented what evidence we thought that we

had available that would cause the jury to again

consider why the police didn't investigate Mr. Donnell

and give the jury another reason if at all possible; an

al ternat i ve to Mr. Skinner as being the one who had

committed these offenses.

Q If you had had more evidence casting suspicion on

Robert Donnell, would you have used that evidence at BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972~596-9442

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EVIDENTIARY HEARING, VOL. I 11-16-05

1 trial? 2

Depends on what it was.

Well, just assume for me for the moment that it

4 would be evidence that would in fact a reasonable juror

5 would have thought that well, that casts suspicion on

6 Donnell. A

Well, if we had had that evidence would we have

8 used it? 9

Yes.

suppose you had evidence that Robert Donnell had

12 thoroughly washed out his pickup truck two days after 13 the murders occurred. 14

I don't like (inaudible) suppose (inaudible).

15 think probably put myself back into the place where we

16 were talking about Donnell, I probably would have. 17 Q Mr. Comer, do you recall whether Mr. Skinner "

1~ suggested to you that you investigate Robert Donnell? 19

Well,he might have. Someone suggested that Rob~rt

20 Donnell had been aggressive towards Twila. Now whether 21 that was Mr. Skinner or who it was, I - - it seems to me

22 that it was Howard Mitchell, a witness for the state,

23 who suggested that Mr. Donnell was a person who had in

24 the past made improper advances toward Twila. 25

Okay, let me leave that subj ect, Mr. Comer.

I'm

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EVIDENTIARY HEARING, VOL. I 11-16-05

1 going to change subj ects on you again.

2 Now we're going to the subj ect of DNA testing. 3

Okay.

In this case

the state did only partial testing of

5 the DNA material that was available, correct? 6

Yes.

And you didn' t ask to have more material tested or

8 for the opportunity for the defense to test DNA

9 material? 10

No.

Going back to Plaintiff's Exhibit 73, which is the

and 12 affidavit you gave for the state a few years ago,

13 before you look at that actually, I want to ask you what 14 you remember about what you said in that affidavit about 15 the reasons why you did not do DNA testing?

I'm not too sure --

Well, I remember what we did.

I want to ask you about the affidavit first.

18 you remember what you said in the affidavit? M~. Hayes

19 had asked -I remember

I can paraphrase it but I can't

remember the exact wording.

I remember that - - I think

22 I remember, you know, but --

23 Q I'm going to give you the opportunity to say that 24 but for now I want to confine you to whether you

25 remember what you said in the affidavit, and you said BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

154

1 you don' t remember the it word for word. 2

No.

Let me ask you then to go to Plaintiff's Exhibit

I remember the tenor of what was said.

4 No. 73, Paragraph 11. 5

73 ?

You had it there a few minutes ago.

Okay.

Now I think if you go to paragraph 11.

Okay.

Is that Paragraph II a description of your

11 explanation for not having done any DNA testing? Is of why you did not do DNA 12 that an accurate reflection

13 testing? 14

Having read it here I think there's probably maybe

15 one sentence I need to add. Yes, that does generally 16 describe the basis of our defensive theory as to why we

17 didn' t request additional testing. lt

And what is the sentence that you would add?

Well, we were aware of the DNA testing that had

20 already been done.

Thatl s one sentence.

(Laughing)

I'm sorry, I'm being facetious. Go ahead. As many

24 sentences as you want to add. 25

We were aware that the DNA testing had already been

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EVIDENTIARY HEARING, VOL. I 11-16-05

155

1 done and it was incriminating, and we had no reason to 2 believe that if additional testing of the items that had

3 not been tested by the state would have proved anymore 4 helpful to us than the DNA testing that had already been 5

done.

Instead of that our decision was to fault the .

6 state for not having -- for doing just selective DNA 7 testing and not testing evidence that might, had it been

8 tested, tend to exonerate Mr. Skinner from having 9 commi tted the offenses, but knowing what we already knew

10 about the DNA test ing, we didn't think it was prudent to

11 request that additional testing be done because that 12 would certainly detract from and not be helpful to us in

13 our defense theory. 14 Q You said that the testing that had already been 15 done by the state was incriminating. Was it 16 incriminating that Mr. Skinner's own blood was on his

17 clothes? 18

No, that's not incriminating. What was

19 incriminating was that Twila's blood was on his clothes, as I recall, of Elwin Caler

20 as well as the blood,

was on

21 his clothes and his shirt. 22

What was incriminating about Twila's blood being on

23 his clothes? 24

Well, you had the blood spatters. The type of

25 blood spatters evidence that we had avai lable to us BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

156

I - - I - - I want you to focus now on DNA testing.

2 You told me that the DNA testing was incriminating. 3

Yes.

One reason is because it had Twila Busby's blood on

5 his clothes, and I want to know why that DNA result was

incriminating.

It was your defense, was it not, it was

7 part of your defense that Mr. Skinner was present in the at the time the murders occurred, correct?

8 house

Yes.

It was part of the defense theory, or an admission

11 as part of the defense theory anyway, that Mr. Skinner

12 was present in the same room with Twila Busby at the 13 time that she was beaten with an axe handle; correct? 14

Yes.

So what would have been incriminating - - anymore

16 incriminating anyway than what the defense' s theory was

17 with Twila Busby's blood being on his shorts? (,.

18(

Well, here we had three people killed, and

19 apparently from the evidence, at the same time, or in 20

the same sequence, same episode.

We had Twi la Busby on

21 the floor, who had been covered extensively with blood

22 and we had the two young men who had been killed who

23 were also covered with blood, and for DNA testing to 24 reflect that one of those boy's blood and Mr. Skinner's

25 blood and Twi la's blood was on Mr. Skinner, was BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972~596-9442

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EVIDENTIARY HEARING, VOL. I 11-16-05

certainly not something that we could point to as being

helpful to the state - - I mean to the defense.

It seemed that too that there was other DNA

testing done by the state that would indicate that --

now, I may be wrong about this, but it indicated that

there was a mixture of Twi la's blood and Elwin Caler's

blood on Mr. Skinner's pants.

trying to recall from sometime back as to what testing

had been done and what the results of that testing had

Now, that is -- I'm just

Nevertheless, we felt from the

been, if anything.

testing results as they were known to us, that to

request further testing would not be in accordance with

our defensive theory.

Q Mr. Comer, did Mr. Skinner at all times while you

represented him maintain his innocence?

A Yes, he did. He did maintain his innocence.

Q And did he maintain his innocence wi th you, and I'm

asking about in conf ident ial communications did he ever

indicate to you that he was guilty of the crimes?

A No, he didn't.

Q As long as we're on that subject and you've got

Exhibit 73 in front of you, if you could

19, which is the last paragraph -- last substantive

paragraph.

A On Exhibit 73?

go to Paragraph

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EVIDENTIARY HEARING1 VOL. I 11-16-05 1

158

73, correct, Paragraph 19, which would be the first

2 page, last paragraph. 3

All right.

In that paragraph you indicate there may be

5 confidential information which would help the court in

6 understanding the defense position, or reasons for or 7 against advancing a certain trial strategy, and invi te

8 the court to ask about that information. Did you have 9 any particular confidential information in mind when you

10 wrote that paragraph? 11

Yes.

You did have confidential information in mind when

13 you wrote that paragraph? Is it anything other than 14 what we've discussed so Ear? On the subj ect of the DNA, 15 is there anything -- let me -- well, maybe break it down

16 into a component part. Was the confidential information

17 you had in mind information that Mr. Skinner had told l,

1k you that he was guilty? 19

No.

Was there any other confidential communication that

21 you had from your client that you had in mind? 22

No, not from my client.

Was there confidential information that you had

24 obtained from another source? 25

Yes.

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159

Was that confidential information, information you

2 had obtained from an expert witness? 3

Yes.

And that expert witness was

The blood spatter expert.

Mr. Courtney?

Yes.

Did Mr. Courtney indicate to you that there was

9 blood spatter evidence that was not helpful to the

10 defense? 11

Yes..

Did he indicate to you that that blood spatter

13 evidence indicated that Mr. Skinner was guilty?

14 A I donlt - - I donI t think he put any wording in the 15 report that we received from Mr. Courtney that Mr.

16 Skinner was guilty. He was just giving us the results

17 of what his blood spatter testing had shown. He didn't 1S make any comment about - - in his report he didni t make

19 any comment about his opinion as to the guilt or 20 innocence of Mr. Skinner. 21

Mr. Comer, in fact, you've had a recent opportunity

22 to read Mr. Courtney's report, right? 23

Yes.

And that report was faxed to you by Mr. Courtney's

25 office? BETTY TATE, 3101 TOWNBLUFF DR.

#923, PLANO, TX. 972-596-9442

160

EVIDENTIARY HEARING, VOL. I 11-16-05 1

Yes.

Why don't we tell the court who Mr. Courtney is.

He is the blood spatter expert that we retained in

4 this case to examine the evidence, physical evidence in 5 the case that was on hand at the evidence room at the

6 Pampa police Department. 7

In fact, he was more than the blood spatter expert,

8 wasn't he? Wasn't he a criminologist who had some and forensic examination

9 expertise in forensic testing

10 of evidence beyond blood spatters? 11

Oh, I don't know that.

I know that we hired him

12 solely for the purpose of examining the evidencei particularly the blood spatter evidence.

That's why we

14 retained him. 15

You and Mr. Fields took him over to the evidence

16 room to show him the evidence, right? 17

Yes.

And you had him go

1~.

through all of the evidence in

19 the room, correct? 20

Yes.

And give you comments on whether or not there was

22 any evidentiary value to that evidence? Well, he was there for sometime.

all the time.

office and he left.

I wasn' t there

I think probรกbly I'd gone back to the

He prepared us a report and he may

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EVIDENTIARY HEARING, VOL. I 11-16-05

1 have discussed it with us beforehand, but he did examine 2 quite a bit of the evidence that was in the - - if not 3 al 1 the evidence that was in the evidence room. 4

Mr. Comer, prior to this hearing you and I have

5 discussed this report before, have we not? 6

Well, I think I faxed it to you.

I don't know what

7 we discussed it when you called.

8 Q You did, you did fax it to me. 9 A Yes. MR. ROB INSON: Okay.

I'm going to, Your

11 Honor, ask to have this marked as an exhibit. This 12 would be an additional exhibit, if i may, which would

13 be -14

THE COURT: (Inaudible).

MR. ROBINSON: (Inaudible)

I assume the

16 state has a copy? 17

MS. HAYES: No, we don' t .

THE COURT: Go ahead and mark it for

19 identification. 20

MR. ROBINSON: Mark it as Plaintiff's Exhibit

21 77. This is a document that has a fax cover sheet on it 22 from Harold F. Comer to Doug Robinson, date 10-31-051

23 1:30 p.m., and I'll show it to counsel. 24 25

MS. HAYES: Your Honor, we're fine wi th this report. Real ly, we've never seen it.

I believe yJ all

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EVIDENTIARY HEARING, VOL. I 11-16-05

1 probably know - - I mean I tracked Max Courtney's office

blood

2 down because If igured out he had to be the

spat ter guy.

I called Courtney's office and asked them

4 did they actually do work on this case on Skinner, and them to specifically send a copy to trial counsel

5 asked

6 because I didn' t know if there was anything in the

7 document that was going to be privileged that I wouldn't 8 have a chance to see, so I have ~ - to date I've never

9 seen it until just now, so if there's going to be

10 questioning on it now, we really would like a copy. 11 It's pretty long, and we'd like to follow along with it. MR. ROBINSON: Your Honor, I wonder if we

13 couldn't maybe take a short break at this point, an 14 early break, and make some copies of this document so

15 you'll have one and the witness will have one. THE COURT: All right J letls take a ten minute

17 break.

1j (Short Recess) l,

(By Mr. Robinson)

Now, Mr. Comer, during the bre-ak

20 have you had an opportunity to review that exhibit

21 marked as Plaintiff's Exhibit 77. 22

Yes.

And is this, with the exception of the cover sheĂŠt,

24 fax cover sheet from you to me, is this the Max Courtney

25 report that you were testifying about just before the BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX~ 972-596-9442

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EVIDENTIARY HEARING, VOL. I 11-16-05

1 break? 2

Yes.

I want to take your attention to the last paragraph

4 of this document. Youl re free to refer to anything else

5 in this document you care to ,but is that last paragraph

6 the paragraph you were referring to earlier when you 7 said Max Courtney gave you a report that was unfavorable 8

on the blood spatter?

A I think that sums it up Mr. Robinson.

Some

10 information it gives in the context (inaudible) I think 11 it sums it up in the last paragraph.

12 Q Well, is there anything else in the body of the 13 letter where he talks about the clothing of Skinner or

14 any other blood stains for that matter being 15 inconsistent with the defense theory? 16

Maybe one. He's got the number 51. 09 then 5 i . 12 .

Did you say 51.12?

Yes.

Al 1 right. That's the informat ion in this report

20 that you were referring to earlier when you said you got

21 an unfavorable blood spatter report from this expert? 22

Yes. Excuse me, 51.41 too, and 51.45 down here.

Well, is there anything in 51.41 implicating Mr. .

24 Skinner, as opposed to anybody else who might have

25 committed the crime? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. I 11 - 1 6 - 05

Other than (inaudible) I believe the evidence was

2 (inaudible) the information we had before trial was, 3 that Mr. Skinner was laying prone on - - no, there is

4 nothing there in these paragraphs. 5

Would the same be true of 51.45, nothing there that

6 would incriminate Mr. Skinner? No, as opposed to anyone else that might have been

the assailant.

Yes, you're correct.

Now, Mr. Courtney says some other things here in

10 this report as well, doesn't he, he doesn't just confine

11 himself just to blood spatter. If you could go to Page

12 5 of his report. 13

All right.

It's the page that has - - in fact, we have fax page

15 numbers and other page numbers, but I'm looking at the 16 page that starts with general comments down at the 17

bot tom of the page.

It's his PageS and it's fax Page

1~. 6. rr

I have the general comments on Page 6.

Page 5, yes..

Oh, his

Here's his Page 5.

Now we're on the same page.

In that first

22 paragraph under general comments he says that much of 23 the evidence has never been examined by a forensic lab,

24 doesn't he? 25

Yes.

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EVIDENTIARY HEARING, VOL. I 11-16-05 1

Q And he says much of it could be of crucial

significance.

A Correct.

Q This report, by the way, is dated 12-20-94, fairly

late in the pretrial preparation process, wasn't it?

A Yes.

Q He says any of the blood stains from the seized

knife, the wooden handle and any other items could be

from an unknown assailant, correct?

A Correct.

Q Any of the hairs on the victims, particularly the

hairs on Twila Busby's hands and stomach could be from

an unknown assailant, correct?

A Correct.

Q Nothing in that paragraph that suggests to you

they shouldn't have done further DNA testing, is there?

A No, but our defensive theory was that we were going

to fault the state for not having examined the entire

evidence, because had the state examined this type of

evidence, it might have exonerated Mr. Skinner.

said, we made a decision that we didn' t want any testing

because of the facts that we already knew and the fact

that we would rather use that in defensive evidence to

fault the state for not having- - fault the state for

not just doing selective testing but-- and the

that

tr t~:

As I

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EVIDENTIARY HEARING, VOL. I 11-16-05

166

1 selective testing very likely the results of which might 2 have exonerated Mr. Skinner.

3 Q So your defense was or your theory was that you 4 were going to try to convince the jury that it was up to 5 the state to have done this testing, and they didn't do

6 the testing? A

No, our theory would be is that in any criminal

burden to establish guilt beyond

8 case the state has the

9 a reasonable doubt, and we would say that they could the rest of this evidence, which would have

10 have tested

11 placed any doubt about Mr. Skinner's guilt from placing 12 it beyond the scope of reasonable doubt. We didn't want 13 it tested because we wanted to use this in order to

14 convince the jury that it should have been tested, and 15 had the state conducted the test ing, then it might have 16 been, as I say, beneficial to Mr. Skinner. 17

Okay.

I asked you earl ier whether Mr. Skinner at

1~ all times maintained his innocence with you, and hĂŠ did,

19 correct? 20

Yes.

And you had an opinion from Dr. Lowry. Did you

22 feel like Dr. Lowry's opinion was a strong opinion? 23

Yes, we were happy with it.

And that opinion bolstered the notion that Mr.

25 Skinner was innocent, correct? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

Well, I don't think it was conclusive.

No, it wasn't conclusive, but I used the word

167

3 bolstered; it bolstered the theory that Mr. Skinner was

4 innocent. 5

Yes.

And Mr. Skinner's innocence was also bolstered by

7 evidence from a hand expert that you put on the stand.

8 Do you remember the hand expert? A gentleman who

9 testified in his -10

Physical therapist.

Yesi an occupational therapist. Do you recall his

12 testimony? 13

Yes, that he had something wrong with his - - Mr.

14 Skinner had some defect or had had an injury in his 15 right hand and he didn' t have a grip or something. Yes. 16

So that was more evidence that Mr. Skinner was

17 incapable of commit t ing the murder? 18

Yes, that's why we used him.

Mr. Comer, did you discuss with Mr. Mann ,the

20 district attorney, what procedures he would agree to if

21 you did do some DNA testing? 22

No.

Did he ever indicate to you that he wouldn' tallow

24 the defense to test? 25

No.

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EVIDENTIARY HEARING, VOL. I 11- 16 - 05 1

Did he ever indicate to you that he wouldn't allow

2 the testing? 3

No, we never asked him for permission.

So he never indicated to you that he would insist

5 on knowing the resul ts if you did testing? 6

No.

Did you ever talk to the judge, formally or

8 informally, about getting an order allowing you to do

9 DNA testing? 10

Additional testing? Additional testing. Well, testing - - no.

Did you ever talk to the judge about whether he

14 would require the State of Texas to pay for additional 15 testing if you wanted any done? 16

No.

In Plaintiff's Exhibit 73, in Paragraph 11, we were

1 ~ looking at it a little earlier as at least part of. your

19 explanation for not doing DNA testing, you indicated 20 that you were concerned that doing additional DNA

21 testing would prejudice your defense. Do you see that? 22

Paragraph 11?

Paragraph 11, the second line.

It says, "We feel

24 like it would prejudice ~-." 25

Right, yes.

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EVIDENTIARY HEARING, VOL. I 11-16-05 1

169

Did you have in mind that the results might come

2 back to incriminate Mr. Skinner?

3 A Well, I'm saying that from what we had up to that we didn't feel that

4 point in time in the DNA testing,

5 additional testing would be beneficial to our defense.

6 We were worried about the results, and secondly we were 7 worried whether or not that would prompt the state to do

8 additional testing that we didn't want. We had made up

9 our mind at that point that testing - - that our 1 0 defensive theory would be to, as I say being

11 repetitious, to attack the state for not having examined

12 evidence that might be beneficial to the defense, but 13 only that evidence that would have been to the state's

14 be n ef it .

15 We didn't want additional testing because we 16 felt like it might be incriminating, and it would 17

detract from the

of course, we - - you know, the

18 evidence remains in the evidence locker room. We go 19 over there and we say we want these additional items 20

tested. officer.

The evidence custodian isa law enforcement They would have al lowed us to, you know, I'm

22 sure, to take that evidence and take it to anyone that

23 we wanted the evidence tested by, and I would assume 24 that whoever we took it to would be a defense expert,

25 and under the Ake case then it couldn' t be disclosed -~ BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. I 11-16~05

1 the result couldn' t be disclosed to the state. But that, we felt certain, would prompt Mr.

3 Mann, the district attorney, to do additional testing the 4 because certainly he would have the information that

5 defense would have taken from the evidence room items

6 that had not been tested by DNA, and he couldn't find 7 out what the results were, so hel s going to do his own

8 tests, and as I say, that's not what we wanted to

9 happen. 10

Let me ask you this, Mr. Comer.

There were some

11 knives found at the crime scene, correct? 12

Yes.

Those knives were never tested by the state for

14 DNA? 15

Correct.

Suppose that you had had those knives tested, and

17 suppose that the result came

back showing Mr. Skinner's

18 blood was on the knives, or on a knife, would that' 19 resul t have been incriminating to Mr. Skinner? fil/

Mr. Skinner's blood?

No. If the results of the testing had come back

22 and shown that there was DNA on those knives that did

23 not belong to Mr. Skinner, did not belong to Twila 24 Busby, did not belong to Elwin Caler, did not belong to 25 Randy Busby, would that have been benef icial to the BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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1 defense? 2

Certainly.

There were hairs that were not tested by the state,

4 correct? Wej ust read Mr. Courtney saying that there 5 were hairs not tested by the state.

6 A Beg your pardon?

7 Q I said we j ustread that Mr. Courtney said there 8 were hairs not tested by the state. 9

Going back, this was so many years, I thought that

10 there were some hairs on the end of the axe handle, 11 which was alleged to have been the murder weapon, and 12

that those hairs had been tested.

I may be wrong.

Well, assume for me for a moment that there were

14 hairs at the crime scene on Twila Busby's body, in her 15

hand, et cetera, that were not tested.

Assume that for

16 me for the moment; assume that with me for the moment, 1 7 if you wi 1 1 .

18 A Okay. In her hand that was not tested? I~ II 19 assume that. 20

If you had had that hair tested and it turned out

21 to be the hair of a person who was a stranger to that

22 household, it was not Mr. Skinner or it was not any of

23 the victims, would that have been beneficial to the 24 defense? 25

Correct.

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EVIDENTIARY HEARING, VOL. I 11-16-05 1

recall ,

there was a cup towel, as I

And suppose

2 that was found in a plastic bag that had some substance on it that might have been blood.

Had that

towel

been

4 tested and found to be the - - contain the DNA of some

5 person who was a stranger to the household and it was 6 not one of the vict ims and was not Mr. Skinner, would

7 that have been helpful to the defense? 8

Okay.

Al 1 right, I'm going to switch subj ects on you

10 again, Mr. Comer. We're going to go to what we refer to

11 as our conflict of interest claim. 12 You had prosecuted Mr. Skinner for two

13 felonies while you were the district attorney, correct? 14

Yes.

And one was assaul ting a police officer and the

16 other was an unauthorized use of a motor vehicle? 17

Yes.

You

1 gl;

discussed in your affidavit, Plaintiff's

19 Exhibit 73 -THE COURT:

20 21

want to ask him.

Just ask him the question that you

(Inaudible) .

Stop referring to the

22 evidence. 23

(By Mr. Robinson)

Mr. Comer, did you ever have a

24 conversation with Mr. Skinner about whether or not your 25 prior prosecut ion of him was something that he was BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. I 11-16-05

1 comfortable wi th having you as his defense attorney? 2

Yes.

Why don' t you describe that conversation to the

4 court as best you can remember? 5

It wasn' t long after I was appointed that I went to

6 the Gray County Jail and met with Mr. Skinner, and I 7 reminded him that I had prosecuted him on at least two 8

offenses.

I believe it was

in ' 87 or '881 something

9 like that, and for that reason I wanted to know whether 10 or not he wanted me to continue as his defense counsel,

11 and he said yes, he did, and then that's what I.recall. 12 I recall our discussion (inaudible). 13

So this would have been in January or February of

14 1994? 15

I would think so.

No later than that?

Maybe it had been mentioned more than one time, but

18 I recall that first time that Mr. Skinner and I

19 discussed my prior prosecution of him. 20

In that conversation do you recall whether you used

21 the term "conflict of interest"? 22

I may have used the word conflict, yes, but mainly represented him

23 I was want ing to remind him that I had

24 before and I wanted him to make the decision of whether

25 he wanted me to continue as his lawyer4 BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

THE COURT: Did you represent him before?

THE WITNESS: I'm sorry, prosecuted him

174

3 before. 4

(By Mr. Robinson)

Mr. Comer., in that conversation,

5 or in any other conversation for that matter on the 6 subj ect, did you discuss the possible consequences or

7 I imi tations on your abili ty to represent him, given any 8 duty of loyalty you might have had to the state when you

9 previously prosecuted him? 10

If you're asking whether or not I informed Mr.

11 Skinner, you know, that my prior prosecution of him

12 would affect my ability or prevent me from attacking, 13 say during the sentencing phase of the trial, the work 14 tha t I had done before in prosecut ing him, I don't

15 recall that I ever told Mr. Skinner that. 16

All right. Now who else was - - well, let me see --

17 you said this, I think, but maybe you didn' t, so I want l I'

to make sure I'm clear on it.

You had this

19 conversation, or these conversations you're talking 20 about with Mr. Skinner in the county jail? 21

I know the first one was.

I can' t be sure about

22 the other discussions. 23

All right. And that 1 s because that's where he was

24 incarcerated at the time? 25

Yes.

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175

Do you recall having this same conversation, or

2 roughly the equivalent of the same conversation with Mr.

3 Skinner in the presence of Judge Sims in court? 4

No.

MR. ROBINSON: Well, in light of that answer,

6 Your Honor, I'm going to have to ask him to go to his

7 affidavit. 8 Q (By Mr. Robinson) I want you to go to the first 9 page of that affidavit, Plaintiff's Exhibit 73, 10 Paragraph 7. You say in the, I believe it's the third 11 sentence, the conflict was brought to the attention of 12 the trial judge, the Honorable Judge Ken Sims -13

Where are you?

Well, that's Paragraph 7 at the bottom of the page..

All right.

At the third sentence, "the conf 1 ~ct was brought to

17 the attention of the trial judge, the Honorable Judge

18 Kent M. Sims, U and Ilm going to stop there for รก minute. 19 What were the circumstances under which this conflict 20 was brought to the attention of Judge Sims if it wasn't 21 in the courtroom?

22 Let i s put that question aside for a minute and 23 I'll ask you a preliminary question. Was it you that" attention of Judge Sims? 24 brought this conflict to the

I know I discussed it with him, yes.

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176

And if it wasn' t in the courtroom, where did it

2 take place? 3

I would think that it had to be in the courtroom.

So you now recall that you did have a conversation

5 with him in the courtroom about this? A

Well, if we could go on with the rest of that

7 sentence. 8

That's fine, go ahead.

It says II the conflict was brought to the attention

10 of the trial judge, the Honorable Judge Kent M. Sims,

11 who reportedly advised Mr. Skinner the possible 12 consequences of the conflict and his right to counsel. II 13 I know there have been others who have given affidavits,

14 who have testified, I thinki in open court, that Mr. 15 Skinner was advised by Judge Sims of the conflict and 16 asked Mr. Skinner whether or not he wanted me to

17 continue as his lawyer in open court, and that Mr. Skinner replied yes, he did. I donI t remember thai. 1~ II in that 19 "

So when you used the word II reportedly

20 sentence, you're referring to you've heard that others 21 have said that but you don't have any personal

22 recollection I don't recall in open court Judge Sims advising'

Mr. Skinner.

That's not to say it didn' t happen but I

25 just don' t remember. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. I 11-16-05 1

Did you discuss your confl ict wi th Mr. Skinner --

2 excuse me, try that again.

3 Did you discuss the conflict that we've been 4 talking about here brought about by your prior

5 prosecution, with Mr. Mann? 6

I think I did, yes.

Why did you discuss it with Mr. Mann?

I don't know, other than just to let him know that

9 I had prosecuted Mr. Skinner before, and that according 10

to Mr. Skinner, there wasn't any conflict.

There wasn't

11 any reason why he wouldn't want me to continue to I think probably I did tell him that.

represent him.

And was Mr. Skinner present at this conversation?

I don't think so.

So you wouldn' t have

in the presence of Mr.

16 Mann, you wouldn't have told Mr. Skinner -- either you 17 or Mr. Mann wouldn' t have told Mr. Skinner of the

18 consequences of your having previously prosecuted him? 19

The consequences?

Let me start that over again.

So obviously Mr.

21 Skinner wasnl t present. MR. ROB INSON: Thank you, Your Honor, and Mr.

22 23

Come r .

I pass this witness.

24 25

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178

CROSS EXAMINATION

1 2

3 BY MS. HAYES: 4

Mr. Comer, I'm Kathy Hayes wi th the At torney

5 General's Off ice. When you and Mr. Fields were 6 preparing for Skinner's case, were you relying primarily 7 only on your and Mr. Fields' experience, or did you seek

8 out 9

We sought out experts.

Like what kinds of experts did you turn to? We

11 talked about blood spatter and who else? 12

Well, we took the evidence that had been tested by

13 the state and took it to an expert in Denton, and I'm 14 sorry, I can' t remember his name, and we asked that

15 expert to examine the state's findings as far as the DNA 16 was concerned on that evidence, so that we could make

17 sure that the proper procedures had been followed in (,

1r/" l examining that evidence. 19

So blood

spatter was Max Courtney, right? We've

20 established that. And the DNA - - do you remember the

21 DNA expert's name from Denton? 22

You mean as far as other experts? THE COURT:

spat ter

No, she's asking you if the blood

if your blood spatter's expert was Mr.

25 Courtney? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TK. 972-596-9442

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EVIDENTIARY HEARING, VOL. I 11-16-05

THE WITNESS: Yes, sir. He was our blood

2 spat ter expert. 3

(By Ms. Hayes) And then the DNA expe.rt is - - do

4 you remember the name of the man from Denton? 5

No. He was with the uni versi ty.

I'm sorry, I

6 can' t remember his name. 7

Did you also testify earlier that you had someone

8 evaluate Skinner for competency and sanity also? 9

Yes.

How about other defense - - say defense base groups,

11 maybe that just provided assistance for defense 12 attorneys? Did you contact any group like that? 13

Well, we were, of course, in contact to get the

14 latest articles from criminal defense associations, and

15 we also contacted the Texas Resource Center.

16 Q In your dealings with Texas Resource Center were 17 you actually involved with Rob Owen? 18

Yes.

Prior to coming to the hearing did you have

20 chance - - did you find a let ter or any letters that 21 document that you were corresponding wi th Texas Resource

22 Center? 23

Yes.

Did you bring those let ters wi th you, or let ter?

Yes.

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EVIDENTIARY HEARING, VOL. I 11-16-05 1

For the record, you've never provided a copy of

2 that letter, or any letter, from the Texas Resource

3 Center to me, have you?

No.

Did you have a chance to provide that let ter to Mr.

6 Owen, or Mr. Robinson? I think when Mr. Owen and Mr. Robinson were in the

office, I think -- I'm not sure.

I think I provided it

9 to Mr. Owen. For the purposes of the record,

MS. HAYES:

11 Your Honor, I'd just ask Mr. Comer to please bring a copy of that with him.

I haven' t seen it.

I'm afraid

13 there might be something in there that is privileged, 14 but if it was just to offer objective proof that they

15 were corresponding with an outside group also to get

16 assistance. 17

l, 1 rj. (

(By Ms. Hayes)

On the blood spatter claim, Skinner

was indicted for killing more than one person during the

19 same criminal transaction; is that correct? 20

Yes.

So to convict Skinner of capi tal murder, the jury

22 needed to find beyond a reasonable doubt that Skinner 23 intentionally killed Twila Busby, Randy Busby, and Elwin

24 Caler in the same transaction, right? 25

Yes.

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EVIDENTIARY HEARING, VOL. I 11-16-05 1

181

Was the state required to prove beyond a reasonable

2 doubt the actual order in which the three homicides

3 occurred? 4

No.

As long as the jury is convinced that Skinner

6 killed all three people, as alleged in the indictment,

7 then the jury's verdict at guilt/innocence is not 8 unreliable; wouldn't that be correct?

9 A Well, I think that the jury verdict was unreliable 10 because I don' t think they should have convicted him,

11 based on the evidence that they had before them.

12 Q Well, as long as they believed that as the 13 indictment alleges that all three persons were killed by

14 Skinner in the same transaction, then you don' t see a 15 problem at that level, do you? 16

No.

And after all, the only person who would really

18 know the specifics of the order in which the people were

19 killed would be the actual killer, correct? 20

Yes.

Now, there's been an argument made that the

22 presence of Twila's blood on Elwin Caler's underwear 23 somehow proves that Elwin was actually attacked in the 24 living room. Do you remember that argument being made? 25

Give me that again.

I'm sorry.

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EVIDENTIARY HEARING, VOL. I 11 -16 - 05

1 Q There was supposedly from Morse Burroughs, there 2 was testimony in the report about there being blood spatter on Elwin's underwear that came from Twila.

Does

4 that sound familiar?

I don' t know whether there was any testing done on

Mr. Caler's underwear.

In fact, I think the blood

7 spat ter expert said that - - indicated that there was no

8 testing done. 9

Well, I'm referring to Morse Burroughs, the state's

10 expert, which they relied on as part of -- what is it, 11 Exhibit 75? The exhibit that's a report from Morse 12 Burroughs that supposedly says based on the impact, 13 there was blood spatter that suggests Elwin was in the Does that sound familiar?

room when Twila was killed.

Yes.

Does the fact that Elwin might have had blood

17 spatter on his underweari actually mean that Elwin was l

1~ attacked in the den? 19

We donI t know whose blood spatter that was.

It was Twila's blood.

If Twila's blood was on

21 Elwin's underwear --

22 A If they're saying it was Twila's blood, yes. 23 Q At best wouldn't it just prove that he was in the 24 room when Twila got attacked?

25 A I f her blood was blood spat ter that was on his BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. I 11 -16 - 05

1 underwear, yes, I think it would indicate he was in the

2 room at the time Twila was killed.

3 Q But that doesn' t automatically mean that he was in 4 turn also attacked in the den, or the living room, does

5 it? 6

No, I don' t suppose so.

And there's no evidence really to prove that the

8 killer stopped beating Twila and started attacking 9 Elwin, if Elwin had come into the living room when the Isn't that true?

attack was going on.

Wait a second. You went a little fast on that.

There's no evidence to prove that the killer

13 stopped attacking Twila and then turned and started 14 attacking Elwin if Elwin had come in the room; there's

15 nothing that suggests that, is there? 16

I'm not particularly sure.

I don' t know.

17 answer your question, I know of no evidence that would Twila 18 indicate that there was a hiatus between the time

and the time that Elwin Caler was killed. Ts

19 was killed

20 that what you mean? 21

Yes, thank you. Now, Elwin and his brother, Randy,

22 actually shared a bedroom; isn't that correct? 23

Yes.

And in the confusioni or maybe in the panic,

25 instead of leaving the house for help maybe Elwin went BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-944~

EVIDENTIARY HEARINGI VOL. I 11 -16 - 05

184

1 back to the bedroom where the brother, Randy, was.

2 Couldn' t that have happened? 3

You're asking me to speculate.

Uh-huh.

I don' t know if I can answer that or not.

Well, Elwin was mentally retarded, wasn't he?

There was some testimony that he was. To the

8 extent he was retarded, I don't know. 9

And there's also some evidence that showed that

10 Randy was mentally retarded too, wasn' t there? 11

Yes.

Would you, as defense counsel and lead counsel,

13 would you want the jury to necessarily hear information 14 that might suggest that Elwin was in the lĂŹving room

15 when his mother was being attacked? 16

No.

Have you had an opportunity to review the

1~' transcript of the January 1st video taped confession

19 that was made by Skinner to Terry Young? 20

Yes.

MS. HAYES: May I approach?

THE COURT: You may.

(By Ms. Hayes) Mr. Comer, I hand you what is

marked 35 -A.

Can you identify that document for the

25 court? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. I 11 -16 - 05 1

A Yes.

Q And is it in fact a transcript of the January 1st,

1994 confession?

A It appears to be.

Q Would you turn to Page 17, please, and starting at

Line 5 -MR. ROBINSON: Your Honor, I obj ect.

sure of the purpose of bringing this in, but I obj ect on

the grounds that this is irrelevant and this was the

statement we were talking about which we think cannot be

used in this hearing for any purpose.

statement that was made improperly by the state, and a

statement that Mr. Mann t.estified here this morning was

a statement that was improperly taken, and would not

have been used at trial.

(/J ~...

I'm not

MS. HAYES:

I think that's a

Your Honor, there's been no

finding by the trial court that this was found improper.

In fact, there was an order issued regarding the January

4th audio taped statementi which in the very first

paragraph said that they found there was no invocation

by Skinner of his right to counsel when he made the

January 1st statement.

Now, I'm not offering - - not because it was'

something that came in at trial, but I want to talk to

counsel about statements made by the defendant as being BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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HEARING, VOL. I 11-16-05

EVIDENTIARY

1 something that he might be basing strategy reasons on;

2 not that it was ultimately admissible at trial. THE COURT:

The objection will be overruled

4 and you may use the statement for that purpose. 5

I'm sorry, what page did you say? (By

Ms. Hayes)

Page 17.

Starting on Line 5 ~-

7 well, after Mr. Young had asked you do you remember

8 anything happening to Scooter, the response from 9 Skinner, would you just read that response aloud? 10

Beginning at Line 5?

Line 5. "I don' t even remember Scooter beins. there except

13 for it seems like when me and his momma were fighting, 14 I - - it seems like he come up and grabbed me behind the

15 neck and got me off of her, and that's how I got throwed

16 in the floor, but I ain' t sure if he done it or not, or

17 if I just fell." ~t'

Now, there's been some testimony from Vickie

1รกl'

Broadstreet that Scooter had muscular dystrophy.

Had

20 your investigation, in addition to possible mental 21 retardation, is that also something that the information

22 suggests that Scooter had, muscular dystrophy?

I don' t remember having any information that

Scooter had muscular dystrophy.

I can only testify that

25 I remember he was that - - I can' t remember - - during the BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

187

something mentioned that

1 course of the trial there was

2 he was mentally retarded. 3

And would evidence that Skinner- - that Scooteri

living room when his 4 Elwin Caler, was possibly in the

5 mother was attacked, and that the mentally retarded son

6 was pulling Skinner off of his mother, that certainly 7 wouldn't be the kind of evidence you'd want to get in

8 front of the jury, would it? 9

That I would?

10 Q You wouldn't want something like that in front of

11 the jury? 12

No.

Now Skinner alleges that Elwin apparently was

14 attacked in the living room, which explains why Elwin's as he lay comatose on the couch.

15 blood was on Skinner

16 Have you heard allegations about that? 17

Yes.

And the evidence at the trial showed Skinner had

19 blood on his clothes that came both from Twila and from

20 Elwin, correct? I'm sorry.

Gi ve me that again.

That blood on Skinner came both from Elwin and from

23 Twila, correct? 24

Yes.

Now if you look at Plaintiff's Exhibit 77, that Max

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EVIDENTIARY HEARINGI VOL. I 11-16-05

1 Courtney report, and go straight to the last paragraph

2 on the last page. 3

All right.

The last page, last paragraph.

All right.

It saysi "Overall, the clothing of Skinner shows

I'm sorry, go ahead.

7 bloodstains that are generally inconsistent with his 8 having simply laid on the sofa during the attack of the

9 vict ims. The blood is too wide spread and on too many

10 different surfaces of the clothing. II 11 Now wouldn't Mr. Courtney's conclusion in the 12 blood spatter report actually undermine the defense that 13 you tried to present with Lowry.that Skinner

was too

14 comatose and was laying on the couch during the offense? 15

Yes.

And in particular, if you continue to look at that at Paragraph 51.09, which is on the

17 exhibit, if you look

11 faxed Page 2, the third sentence on 51.09, would you

19 read that aloud? It starts with "Most of the

20 spatter _-.11 21

51.09?

Right.

liThe shirt purportedly from Skinner, medium

24 velocity impacts spatter and numerous other blood stains

25 were found on the shirt. Most of the spatter was found BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

189

1 on the shirt front but some other very small stains were

2 found on the back, possibly consistent with cast off II 3 blood.

Okay, thank you. And the same thing down on 51.12,

5 the jeans from Skinner, would you read that part aloud? 6

"The jeans from Skinneri there is a large amount of

7 spat ter on all sides of the jeans. This includes impact

8 spatter and possible cast off tracks. It is on the 9 front and back; it is on the lower surfaces and the

10 higher surfaces. II 11

So would you agree wi th me on 51.12, he's got blood

12 allover his jeans; is that correct? 13

He's got blood on his jeans.

And the front and the back, all sides, correct?

Yes.

And that would be inconsistent with Lowry's

1 7 conc 1 us ion that he's laying on the couch as leep

18 and comatose during the crimes, correct? 19

Yes.

Look at 51. 16 .

It says "Wooden handle from tool

21 similar to pick. Blood spatter was seen on the large 22

end.

possible bloody f~nger prints were observed on the'

23 smal ler end. II Do you remember anything from Max

24 Courtney, in addi tion to this, where it suggested 25 possiblY that some of the blood was actually on the BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. I 11-16-05

1 smaller end of the axe handle? MR. ROB INSON: Obj ect ion, Your Honor. Your

3 Honor, I'm not understanding what the relevance of this

4 line of questioning is. The fact that there may have 5 been evidence of blood spatter inconsistent with the 6 Lowry theoryi I cannot connect to any claim or theory in 7 this case or any of my direct examination of Mr. Comer.

MS. HAYES: Perhaps I've exceeded the scope of

9 direct. 10

THE COURT: Sustained.

MS. HAYES: But I'll make this offer.

would the court be willing

12 order to speed things along

13 to indulge to go ahead and - - to take this witness and

14 go ahead and just do the quest ioning, or - ~ and let 15 me THE COURT: What are you going to develop?

17 Mr. Robinson didn't go into this document on the witness f

1~' stand. They called Dr. Lowry at trial and your witness 19 has testified that this information was not beneficial~ 20 so I don' t understand your point. 21

MS. HAYES:

I guess I

was just glad I finally

22 got the report, but the conclusion at the end, I 23 expected that it would show - - even though I had never

24 seen the report before ,so I'll move on. 25

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MR. ROBINSON: Your Honor, I wonder if I might

1 2

inquire a point of counsel's last remark.

Is this going

3 to be one time wi th Mr. Comer or is he going to be

4 called back as a prosecution witness? 5

THE COURT: (Inaudible).

MR. ROBINSON: Well, all right.

It might bear

7 on whether .or not - - what I obj ect to here, because if

8 it's her intention to take Mr. Comer essentially on the

9 state's direct, that's fine, I don't have an objection

10 to that, but i'd like to know if that's what she's

11 doing. THE COURT:

Is that a problem? Well, let's or are you going to

13 j usttake - - is he your witness

14 cross examine him? MS. HAYES: No, I'll go back to cross

16 examination. THE COURT: All right.

17 18

(By Ms. Hayes)

Just to make clear one last point

19 on that Lowry report THE COURT:

(By Ms. Hayes)

Lowry report or Courtney?

I'm sorry, Courtney report, it was

based on Courtney's conclusion. That was one of the 23 reasons why you ultimately decided it wouldn't be worth 24 doing more DNA testing; isn' t that correct?

That's correct.

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EVIDENTIARY HEARING, VOL. I 11-16-05

192

THE COURT: Now I'm confused. When was the --

2 never mind. Well, here's my question. Did you get this 3 report before the expert deadline or after? THE WITNESS: After the deadline. Oh, this

5 report? Before the deadline. THE COURT: All right, go ahead.

6 7

(By Ms. Hayes)

There's been an allegation raised

8 that Lori Brim, the woman from the east, from Virginia,

9 would have possibly testified on Skinner's behalf if she

had been contacted.

I don't remember, but did you

11 remember what in particular she was offering to testify 12 about? 13

My recollection is that her knowledge or past

14 knowledge of Mr. Skinner, and her willingness to testify

15 as a character witness, as I recall. 16

Now, would it surprise you to know, at least from

17 an affidavit that's been submitted by Ms. Brim in '95, t F

iatf that she said she was prepared to testify on Skinner's

19 behalf that he has a - - about his reputation for being' a 20 peaceful and nonviolent person, as well as his good 21 character and his propensity for truthfulness and 22 veracity. Does that sound like the kind of testimony 23 that you thought she was going to offer? 24

Yes.

Would you have put on Ms. Brim to talk about

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1 Skinner's reputation for being peaceful and law abiding?

2 A I can only say we didn't call her. 3

MS. HAYES: Ask to approach?

THE COURT: You may.

(By Ms. Hayes)

Do you recognize Respondent's 34?

6 Could you identify that for the court? 7

Yes.

Itl s the - - we asked - - as a matter of

8 course, we asked the state to provide us with any 9 extraneous offenses that they intended to introduce at 10 trial, either on the guilty/innocence phase, or

on the

11 punishment phase, and so they furnished this what they

12 call the bad act~ list as a result of our request. 13 Q And the list is in fact at least five pages long?

14 Is that -15

Five pages.

16 Q And could you make just a rough est imate of how may

17 prior, quote, bad acts, are listed in these five pages? 18

No, I couldn' t.

Would you agree there are a lot of acts?

Yes.

Now, to date have you seen any medical records that

22 evidence Skinner ever having an allergic reaction which 23 was observed by hospital or medical personnel, or EMS? 24

i Ve A

The only records I' veseen are those that they

25 shown to me by Mr. Robinson. BETTY TATE, 3101 TOWNBLUFF DR. #9231 PLANO, TX. 972-596-9442

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And so if under 11 allergies 11 it would just list

2 11 Codeine, 11 those are the types of records you've seen,

3 correct? 4

Yes, I've seen that.

And so none that describe symptoms or side effects

6 of his having ingested Codeine, correct? 7

No, ma' am.

From your investigation into the case did you

9 uncover facts showing that Skinner abused drugs? 10

No.

No information in your investigation that showed

12 that he used any drugs? 13

Are you talking about control led substances,

14 illegal drugs? 15

Yes.

No.

Do you have Respondent's 38 still in front of you?

1$:

Respondent's 38?

That's the past medical records.

MS. HAYES: May I approach?

THE COURT: You may.

(By Ms. Hayes)

I'd like you to turn to the page

23 marked MEDS 045. That's an entry from - - would you read 24 the entry from September 21st, 1993, where it states,

25 11 Patient has broke his toe three days ago and is BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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confirmed by x-rays from emergency room.

He was given

2 Vicodin for pain relief. However, now he has requested 3

Talwin after getting relief from the Vicodin.

him a new script for Vicodin

4 to refill Talwinand gave

I refused

#20.

This patient is probably very much addicted to

6 drug s . II 7 Have you in your review of the medical 8 records -- I'm not aware of which medical records you've

9 seen, but have you ever seen that medical record from

10 the DA's files? 11

I don't remember seeing it.

How about looking on MEDS 046, and this is one

13 dated 10-14 of '93, and under "allergies" it lists what? 14

"Codeine" and I can' t read those other two.

Vistaril and maybe Toroidal?

Maybe.

Toward the bottom four or five lines we see where

l8 it starts with "Patient requested an RX prescription

19 for - -," and unfortunatei this one is cut off, but it 20 looks like UPatient caught stealing syringes. II Do you

21 see where that notation is? 22.

Yes.

Would this be the kind of evidence in the medical

24 records

that would suggest that perhaps Skinner has been

25 using controlled substances? .

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EVIDENTIARY HEARING, VOL. I 11-16-05

I don't know, Ms. Harris whether - - Ms. Hayes,

whether it would be or not.

On this (inaudible)

3 writing, it is the opinion of somebody that he was "

getting addicted to drugs.

I'm not (inaudible) too

5 persuasive that he was in fact using illegal drugs or 6 stealing syringes has some connotation of maybe he was 7 us~ng drugs, but II m not prepared to say that is --

8 that's for certain. 9 Q How about that evidence - - does that evidence have 10 more significance when it's weighed against records 11 which apparently don' t evidence him actually having an 12 allergic reaction on Codeine? Other than they just say 13

a Codeine allergy.

Nothing with symptoms, no actual

14 attack, no medical treatment. 15

Wel l, I haven't seen any records that would

16 indicate that he was not in fact allergic to Codeine. 17 You asked me I think how does that compare wi th records

1ft'

indicating that he was not allergic to Codeine.

I've

19 never seen these records before. 20

How about on the night of the murders.

Did Skinner

21 ever report to anyone, Andrea Reed, pol ice, medical

22 personnel, anyonei that he was maybe having difficulty 23 breathing? 24

I don't know.

Did he ever tell anyone that on New Year's Eve,

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EVIDENTIARY HEARING1 VOL. I 11-16-05

1 ' 93, that his throat was constricted? 2

I don't have any recollection that he did.

Tha t ' s

3 not to say that he didn't but I don't remember that. 4

Do you recall ever having seen any reports or

5 records that Skinner reported that maybe his l~ps,

6 tongue or face felt swollen? 7

No.

How about reporting hives?

Hives?

Hives.

No.

Severe itching, any reports like that, like what he

13 was doing on the night in question? 14

Are you asking me whether I heard that or whether

15 there is any record of that, no. 16

Have you ever seen any records or any documentary

17 reports showing Skinner reported that he had seizures on

18 the night of the murders? 19

No.

Now the defense theory through Dr. Lowry was that

21 Skinner, of course, was passed out comatose on the couch

22 and didn' t wake up until after the murders had occurred. 23 Would you look at that Exhibit 35 -A againi the January 24 1st confession to Terry Young, and look at Page 7 t 25

beginning on Line 6.

Mr. Young asks "What parts do you

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1 remember, If and would you see what Mr. Skinner's answer

2 is? "Well, I remember her hitting me in the back

with a stick and knocked me down.

She got on top of me

5 and she had the stick across my throat and I don't 6 remember if I throwed her off or if she got up off of me 7 or - - or what happened, but the fight ended for a minute

8 and she went -- I was still in the living room, I think, 9 and I believe she went in the back room or something, II

10 and he goes, "No, no 1 that's not right. We were 11 fighting and arguing at first and I pushed her down and 12

the fight ended.

She went in the back room and then

13 came back with a stick and hit me in the back with the 14 stick, and then she knocked me down - - it knocked the

15 breath out of me and then she knocked me down on the 16

ground.

Then she was on top of me and she had the stick

17 across my shoulders." On Line 24, "At some point the t,

l' fight kind of let up for a minute and I asked her ~here 19

she had been.

She told me she had been over at Howard

20 Mi tchell' shouse, she was forbidden to go over there by

21 me because there's nothing but a bunch of drunks over 22 there, and they just are no-good peoplei and I don't 23 want

her around them." I f Skinner is comatose on the couch, how does

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EVIDENTIARY HEARING, VOL. I 11 -16 - 05 1 Mitchell's house that night?

MR. ROBINSON: Obj ection, Your Honor. This

3 witness is the defense lawyer. He can't answer a 4

question like that, other than just speculate.

I don' t

5 see how it is and why it is or what's relevant about 6 asking this wi tness that kind of question.

7 THE COURT: Sustained as to speculation. 8

Honor , if I may, given the

MS . HAYES: Your

9 Donnell witnesses, or the witnesses they brought in,

10 suggests really the killer is Donnell. You know, this 11 is tying this back that there's no one other than

12 Skinner that's going to be the real killer because

13 there's no way that he can I'm not saying you can' t use this

THE COURT:

15 for that purpose but not with this witness (inaudible).

16 Q (By Ms. Hayes) Speaking of Donnell, you testified

17 earlier that THE COURT: Wait a minute. The obj ection is

19 made. Do you have any personal knowledge of any of this

20 that's in that statement? THE WITNESS: Just the facts that are being

22 addressed, Your Honor. 23

THE COURT: Do you think your client told you?

THE WITNESS: No.'

(By Ms. Hayes)

Now at trial you called two

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EVIDENTIARY HEARING, VOL. I 11-16 - 05 1 witnesses to testify that Donnell was the likely

2 suspect, right, or at least cast doubt toward Donnell;

3 is that correct? 4

Yes.

Did you really think that Donneii was

in your

6 investigation did you really think Donnell was it, or 7 what was the offer made for? 8

MR. ROBINSON: Objectioni Your Honor.

THE COURT: What is the objection? MR. ROB INSON: Again I don' t see what the

11 purpose of asking this witness whether he thought

12 Donnell was the suspect. The defense was to cast on Donnell, and hel s testified to that, and it

13 suspicion

14 just seems to me like the quest ion and the answer would

15 be irrelevant to any inquiry here. THE COURT:

I' 1 1 allow the quest ion.

1 7 Overruled. ,

Did I really think that Donnell was the assailant?

1~"

(By Ms. Hayes) Yes.

I didn' t think of it in that term. Again, we had

21 information that there was this man who had a history or 22 the nature of being violent and also had the nature and 23

the history of particularly with Twila.

I didn't

24 initially make the decision of whether he was guilty or

25 not. We thought it was good trial strategy to give the BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

201

1 jury another reason to find the evidence insufficient 2 because the state did not investigate Mr. Donnell and to

3 the extent that it would be necessary to determine 4 whether or not he could have been implicated or not, Mr.

5 Fields and I, we thought of this evidence much the same

6 as we did the DNA evidence, that again, it was shabby 7 police work and we wanted to show that there were leads

8 that were not followed in that murder by the police, and 9 that had that lead been followed it might have developed 10 in Mr. Donnell being - - there being evidence that he

11 could have been implicated in this case, and whether or 12 not Mr. Donne i i was gui i ty or not, I didn' t think I made 13

that decision.

It was just a trial tactic we could use

14 to offer to the jury as an alternative to Mr. Skinner

15 (inaudible) for them to consider. 16

Y' all made the choice to present the two witnesses

17 to testify. Sarah Mitchell, who is she exactly?

18 A I think she may have been Howard Mitchell' ~ wife. 19

I don't know.

I don' t remember who she was kin to.

20 Another lady that we offered I think her name was 21 Sherrie Baker (inaudible). 22 Q Now, the complaint has been made that maybe you 23 should have presented addi tional witnesses. Would YOU

24 agree that that complaint really ends up boiling down to 25 a matter of degrees? You put on two -- they say maybe BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. I 11-16-05

you put on five.

Is that the kind of guessing or second

that you have to do typically in defense

2 guessing

3 strategy? A

I think had we had knowledge of more we would have

5 used more, but at that point in our preparat ion for

6 trial we just wanted, as I say, to offer the jury some

7 al terna t i ve . We didn' t think it would be worth the 8 endeavor to continue the investigation to a conclusion,

9 much i ike a detective would or much like - - we wouldn' t 10 conduct the same type of investigation for that matter, 11 as would law enforcement officers because we wanted to

12 try that case with an alternative to the jury. 13

Would it be safe to say that in the group of people

14 who might be able to give information about Donnell that

15 there might be - - I should say this tactfully - - there best possible 16 might be a little trouble picking the

17 wi tnesses out of the gang that ran around wi th the l,

t., 1'8 Donnell-Mitchell group, as far as some of their more

19 colorful backgrounds? Well, we didn' t feel good enough with Howard

Mitchell.

I kind of think maybe Howard Mitchell

22 testified on cross. Mr. Donnell had been to the party 23 with Twilaand had been seen making improper advances' 24 towards her, or improper sexual comments, but he was the 25 state's witness and we certainly didn' t want him to BETTY TATE, 3101

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EVIDENTIARY HEARING, VOL. I 11-16-05

1 vouch for Mr. Skinner because we had all these character

2 witnesses, so we did secure two other witnesses, Sherri 3 Baker and this other lady, who I can' t remember her 4

name.

Now whether they were the same caliber or whether

5 or not we could have picked better wi tnesses, I don' t

6 know how (inaudible). 7

You testiÂŁied previously that apparently Mr.

8 Skinner has never actually confessed to you that he did

9 the crimes; is that correct? 10

That's correct.

Does that mean he didn't really do it, the fact

12 that he hasn' t confessed to you?

13 A I don't know. It was not my job to decide whether 14 he was gui I ty or not guil ty. My job was to defend him 15 as best I could, you know, to convince the jury at le.ast

16 that the state had not proved their case beyond a

17 reasonable doubt. 18

Is it really any surprise that someone might not

19 want to admit that they killed two retarded boys? MR. ROBINSON:

Obj ect ion, Your Honor.

That

21 calls for speculation. THE COURT:

22 23

(By Ms. Hayes)

Sustained. There were some questions raised"

24 about medical records regarding pharmacy records, or 25 records that reflected about Codeine allergies ,and I BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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204

1 believe you gave an answer before that you didn't recall

2 having seen the records in the defense files, and is it

true

when you finished with the files, all the files

4 went to Mr. Losch; is that correct? A

Well, it was sometime after Mr. Losch was appointed

6 between the time of trial and (inaudible). 7

And the fact that you might not recall having seen

8 something doesn't mean in fact you didn't; it just means 9 you didn' t recall seeing those records? 10

I don' t recall.

It probably was there but I don't

11 recall seeing them, no. 12

How about the fact that the document is in the

13 files that counsel has now from .Mr. Losch? Does that because of you or something

14 mean it was placed there

15 could have been placed in the files from Mr. Losch;

16 isn't that correct? 17

I don' t like to contribute

to that type of comment.

1~' (Inaudible) change or to alter his file. ยก

I mean by accident or for whatever reason.

Well, anything can happen.

that was in the file (inaudible)

I'm just assuming that

I might have missed

22 it or I didn' t see it. 23

It just hasn' t been a straight chain of custody .

24 like you had it and then you gave the files to current 25 counsel, at least it's gone through one of the parties; BETTY TATE, 3101 TOWNBLUFF DR. l923, PLANO, TX. 972-596-944.

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205

1 is that correct? 2

Yes.

3 Q You were asked briefly about what happened if 4 additional DNA testing - - what if DNA was conducted on 5 the knife and the results came back and it didn' t belong

6 to any of the family members or to Skinner, and you were

7 asked if that would be benef icial to the defendant. Do 8 you remember you answered "certainly," that that was how

9 you responded, certainly if DNA came back on a knife and 10 it didn' t match up to Skinner or the family, it would be

11 beneficial to Skinner. Would that be correct? 12

That knife was at the scene and I think it was in

13 close proximity to where Twila Busby's body was, as I 14

recall.

It seems like there --

15 THE COURT: I think she's just asking if you 16 recall that testimony from direct. 17

Yes. (By Ms. Hayes)

The answer would depend, though,

19 wouldn't it? It wouldn't automatically result in

20 something beneficial if the fact that the DNA on a knife 21 might not match a family member, wouldn' t necessarily

22 exonerate Mr. Skinner, would it? 23

No.

In fact, it might actually suggest maybe there was

25 somebody else involved as well; isn't that true? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. I 11-16-05 1

You're asking me to speculate again.

And the hair in the hands of Twila Busby that

3 wasn' t tested, if the results came back and it showed 4 that it wasn' t Skinner or wasn' t one of the family

5 members, that could be beneficial. They had asked you

6 that on direct, didn't they? 7

Yes.

Let's talk about the hair in the house.

I f Skinner

9 had never been in that house before and his hair is

10 found in the house, then that would be pretty damning 11 against Skinner, wouldn' tit? 12

If he had never been in the house before?

Right.

Yes.

But he lived in the house with Twila and the

16 family, didn' the? 17

Yes.

So should it really come as a surprise. that there

1~l

19 might have been hair around Twila that matches Skinner? THE COURT:

I don't understand what the -- I

21 thought the question was if there had been DNA and the

22 hair had been found not to belong to the defendant, or 23 to Skinner, or any of the

family members, would that.

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207

MS. HAYES: Right.

THE COURT: Now you're asking if it was Mr.

3 Skinner's hair. MS. HAYES: Let me reverse it then.

4 5

(By Ms. Hayes)

If there's a hair found by a stray

6 person in the house, does that automatically mean that

7 they are, in fact, the killer? 8

No.

Especially - - could you tell at the time of the

10 murders when the last time the house was thoroughly

11 cleaned? A month, two months, a year? 12

I haven' t any idea.

So really it could be anybody's hair that might get

14 left on the floor in Twila' shouse, correct? 15

Yes, it could be.

MS. HAYES: Pass the witness.

THE COURT: Any re-direct?

MR. ROBINSON: May I have a moment, Your

19 Honor? THE COURT: You may.

(Short Pause)

21 22

MR. ROBINSON: No questions.

THE COURT: What is the situation with this'

24 witness? MS. HAYES:

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208

1 like to see the letter. Under the rule of optional 2 completeness, the two letters that were offered, there

3 was - - 6 and 7, the plea bargain let ter and then the 4 letter on the Codeine allergy. The Codeine allergy I 5 get because that's Petitioner's 7. THE COURT: All right. Are you intending to

7 recall this witness? 8

MS. HAYES: At this point, yes.

THE COURT:

(Inaudible) .

Call your next

10 witness. 11

MR. ROBINSON: We call Mr. Fields, Your Honor.

THE COURT: State your name and spell your

13 last name for the record. 14

THE WITNESS: Kenneth W. Fields, F-i-e-I-d-s.

THE COURT: We're referencing an awful lot of

16 affidavits and you're asking questions like is that 17 correct, when the affidavit has not been admitted into l

l.: 18~ evidence. What - - do you intend to of fer these as 19 exhibits, either side,

or what's (inaudible)? I'm

20 afraid the record is not going to make any sense because

21 you're referring to things that are not introduced into 22 evidence. 23

MR. ROBINSON: Your Honor, I think in the case

24 where we have referred to affidavits, I think I would

25 like to offer those affidavits into evidence, not for BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. I 11-16-05

1 the truth of what they say but as evidence of what this 2 wi tness has previous ly said. THE COURT: When yo.u g.et to that , point, you

4 need to offer them (inaudible). Also you need to

5 introduce them. When you question this witness 6 (inaudible) respondent, then hi s answers are

7 (inaudible) Or if they are different from in the 8

affidavit that you have, then you (inaudible)

Don' t

9 start out showing him the affidavit. MR. ROB INSON: Okay, Your Honor.

11 KENNETH W. FIELDS. Called bv Petitioner (Sworn)

12 13

DIRECT EXAMINATION

16 BY MR. ROBINSON~ 17

Good afternoon, Mr. Fields.

Good afternoon.

You were here to hear the testimony of Harold

20 Comer? 21

I was.

Now you heard him testify that he was Mr. Skinner's

23 lead counsel for the entire period of time from almost 24 from the time he was arrested for the crime of capital 25 murder to - - through the trial. When did you come into BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

210

1 the case? 2

I believe in September of 1994.

And did you replace Mr. Rick Harris, who had

4 previously been appointed to represent Mr. Skinner? 5

I did.

So you came into the case roughly half -way through

7 the pretrial preparations? 8

(Inaudible) .

i would guess so.

9 Q We can get out a calender and it will speak for 10 itself, but what did you do when you came into the case

11 to get up to speed or catch up? 12

As I recall I believe Mr. Comer had his file

13 duplicated and delivered to me and so forth, and I

14 believe I went over that file. 15

THE COURT: Do you remember (inaudible).

THE WITNESS:

I believe I reviewed the file, a

17 file, Mr. Comer's file that he duplicated and furnished

18 to me. 19 Q (By Mr. Robinson) So you had in your files copies 20 of things that Mr. Comer had previously collected on

21 this case? 22 A I believe that I did. 23 Q Did that include correspondence to Mr. Skinner?

24 A I don' t recollect whether it did or not. 25

Let me ask you about Anrlrea Reed. Do you remember

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EVIDENTIARY HEARING, VOL. I 11-16-05

1 Andrea Reed as a witness at trial? 2

i do.

, Were you responsible for cross examining her?

I was.

Mr. Fields, was her testimony detrimental to the

6 defense? Pardon me, counsel, I can' t recollect her testimony

wi th any real decree of accuracy.

cross examined her.

I do recall that I

I believe probably that the net

10 effect of her testimony was detrimental. 11

Well, you were also responsible for putting Dr.

12 Lowry on the stand. As between you and Mr. Comer, on direct, correct? 13 you're the one who examined him

Yes, sir.

And you also dealt with re-direct and objections

16 during cross examination? 17

For Dr. Lowry I did, yes,

And

Yes,

Now, do

for

Andr e a Reed,

sir,

sir.

both?

believe so. you recal i Andre a Reed testifying at I

trial

21 about various things that Hank Skinner did at her house 22 between midnight and 3:00 a.m. on January 1st, 1994? 23

I recall that was the general inquiry of her

24 testimony, yes, sir. 25

Do you recall for example that she testified that

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212

1 Mr. Skinner forced his way into her house? A

I don' t recall (inaudible).

(Microphone Problems)

MR. ROBINSON: The microphone has gone dead

I didn' t hear your answer. Try it again.

here.

(Inaudible) . I don't recal I f you could speak up.

I'll speak up.

i (inaudible).

THE COURT ~ Maybe he's up against a wire

ahead and speak up.

10 there. Just go

Restate your question. (By Mr. Robinson)

I'm not sure I remember my

13 question so I'll just try it again. 14 Do you recall Andrea Reed testifying about 15 various things that Hank Skinner was able to do in her

16 house, like, for example, taking his shirt off, lay it 17 on a chair, that he bent needles, heated bent needles to l

18t be used to sew up his hand, and that sort of thing? 19

I remember testimony about removing his shirt.

20 don' t recall any testimony about bending and heat ing

21 needles. 22

Well, without necessarily focusing on specifics of

23 what she testified, do you recall that Dr. Lowry was 24 confronted wi th various things that Andrea Reed said Mr.

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EVIDENTIARY HEARING, VOL. I 11-16-05

213

1 examinat ion of Dr. Lowry? 2

I do.

3 Q And do you recall that Dr. Lowry had ~ome 4 difficulty trying to reconcile his opinion with some of

5 the things that Andrea Reed testified to? 6

I do.

And does that refresh your recollection as to

8 whether or not Andrea Reed 1 s testimony was detrimental

9 to the principal theory of the defense?

10 A It does. 11 Q And your answer is, if I ask you the question again 12 was her testimony detrimental to the defense?

13 A I believe the net effect of her t.estimony would 14 have been detrimental, yes, sir. 15

I'm going to swi tch subj ects on you and go to the

16 subj ect I discussed wi th Mr. Comer about blood spat ter Elwin Caler's shorts, and do you recall that

17 on

18 testimony? 19

I do recall the testimony about blood spatter on .

20 his short, yes, sir. 21 Q And do you recall my having referred Mr. Comer to 22 Morse Burroughs' report on blood spatter that indicated 23 that Morse Burroughs concluded that Elwin Caler was in

24 the vicinity or in the same room as his mother at the

25 time his mother was being attacked? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. I 11-16-05 1

Yes, sir.

Do you agree that if that testimony was accurate

3 that that meant that the killer would have had to at the same 4 contend with Twila Busby and Elwin Caler

5 time in the same room that night? MS. HAYES: Obj ection, leading, and calls for

7 speculat ion. MR. ROB INSON :

lIed Mr. Comer and I intend to

9 lead Mr. Fields to some extent. THE COURT:

I sure don't have a problem with

11 your leading them on preliminary matters, even some

12 expert on preliminary matters, but I'll sustain the 13 obj ect ion on this. Mr. Fields, do you have - - as (By Mr. Robinson) 14 Q 15 you sit here today do you have an explanation for why 16 the defense did not utilize or take advantage of Morse

17 Burroughs' testimony about Elwin Caler's shorts and the "

1~ blood spatter indicating that he was in the presence of 19 his mother during the - - during the time that she was' 20 murdered? I have no explanation today.

great detail what the evidence was.

I don' t recollect in

I cannot remember

23 wi th any degree of accuracy by that evidence

24 (inaudible) . 25

Do you recall ever giving the Morse Burroughs blood

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spat ter report to Dr. Lowry?

A I don't recall whether I did or not.

I presume

3 that I did. 4

You presume that

That we did give it to him.

That you did give it to him?

Basically everything we had available.

But you don' t have a specific recollection of --

I don' t have a speci f ic recollect ion that I did.

Mr. Fields, do you recall seeing any medical

11 records of Mr. Skinner that indicated that he had

12 reported that he was allergic to Codeine? 13

I don' t recall seeing records to that effect.

14 Q If you had seen records to that effect, would you 15 have shown those to Dr. Lowry to get his take on whether 16 or not those would have been relevant to his testimony? 17

MS. HAYES; Obj ection, speculation.

THE COURT: Overruled.

Yes, sir, I would have.

20 Q In fact, Codeine was one of the two substances that

21 was found in significant quantities in Mr. Skinner's 22 blood stream the night of the murders; isn' t that right? 23

I believe that's correct.

And you agree with Mr. Comer that during the

25 pretrial period that you

had complete access to the

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216

1 district attorney's file and anything that was contained

2 in that file? I believe we did.

policy.

I believe there was an open file

I don' t recollect any specific (inaudible).

And if there had been medical records in that file

6 you would have had access to those records?

7 A I believe so. 8 Q And do you specifically remember whether there was 9 any whether there were any medical records in that

10 file? 11

I had (inaudible) medical records (inaudible).

Mr. Fields, did you ever interview Henry Skinner on

13 the times he had received medical treatment throughout

14 his lifetime? 15

I know

that I visited with him about the hand

16 injury (inaudible) recall. 17

Did you ever sit down with him and say, "Now, Hank,

1~ I want you to tell me every time you can think of from

19 the time you were a child to the present, the times 20 you've been in the hospital and received treatment?" 21

I believe I did.

Do you recall whether or not the defense did a

23 comprehensive search for all of his medical records? 24

I seem to recall (inaudible).

Do you ever recall seeing any file that

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217

1 contained - - a comprehensive file that contained all of

2 his medical records? 3

I don' t recall ever seeing such (inaudible).

Do you recall whether Henry Skinner ever told you

5 about his allergy to Codeine? 6

I don't recall him ever telling me about allergies.

7 Q Mr. Fields, I'm going to hand you a file that I 8 will represent to you isa file that I obtained from the

9 widow of Steve Losch. Well, let me first ask you after

10 Mr. Losch became involved in this case on direct appeal, 11 did you turn all your files over to Mr. Losch?

12 A I did, yes. 13

I'm going to show you a file that I received from

14 the widow of Mr. Losch, and I'm going to ask you whether

15 or not you recognize this to be a file kept in the 16 manner in which you normally kept the file? First I 17 need to show it to Ms. Hayes.

18 (Short Pause) MR. ROBINSON: First for the record, Your

20 Honor, I' d describe this as a brown folder -21

THE COURT: Mark it for identification.

MR. ROBINSON:

Honor.

I don't want to offer it, Your

I'm only asking him if it refreshes his

24 recollection. 25

THE COURT: Well, you'll have to mark it for BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. I 11-16 - 05

1 identification. You don' thave to offer it (inaudible) but mark it for identification.

MR. ROB INSON:

( Inaudible)

I'm just using it only for the ,,'"

4 purpose of refreshing his recollection (inaudible). 5

THE COURT: All right, brown manila folder

MR. ROBINSON: Brown manila folder with a

7 (inaudible) that says "Henry Watkins Skinner

(inaudible)

8 9

(By Mr. Robinson)

Does this look like that file

10 (inaudible)? Yes, sir. A 11 12

And I'll ask you to take this file -- and I'll

13 represent to you that it came to me from Mr. Losch, from 14 Mr. Losch's widow, and ask you whether that refreshes

15 your recollection of whether or not Mr. Skinner ever 16 told you that he had an allergy to Codeine? 17

There's a letter to Mr. Comer.

I have no reason to

11 believe it's not in the file, but it does not refr~sh my 19 recollection as to whether Mr. Skinner told me he had 'an 20

allergy to Codeine. He may well have.

I just don't

21 recollect. 22

And if he had informed you would you have brought

23 that to the attention of (inaudible) Dr. Lowry? 24

Yes, I would have.

And you didn't have a strategic reason for not

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1 bringing it to his attention? 2

No, sir.

MR. ROB INSON: May I have a moment, Your

4 Honor? THE COURT: You may.

(Short Pause)

(By Mr. Robinson)

Mr. Fields, you said you came

8 into thi s case in September of ' 94; is that right? 9

Yes, sir.

Do you recall any discussion of whether Mr. Comer

11 had a conflict of interest in representing Mr. Skinner,

12 or any conversation regarding whether or not Mr. Skinner

13 waived that conflict? 14

MR. ROBINSON:

15 16

I do not recall any such discussion.

Your Honor.

I have no further questions,

I pass the witness.

THE COURT: Any cross?

MS. HAYES: I have no questions of the witness

19 but we would ask

the court, given the file that they

20 have shown counsel, we don' t know if everything in there 21 has been waived because of privilege, but we would ask 22 if the court would have an opportunity to review the 23 materials in the file and to make a determination if

24 there are materials in ther~ that would help assist the

25 four claims that are raised on ineffective assistance. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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THE COURT: You want the court to do what?

MS. HAYES: To get the file that they showed

3 to Ken Fields and review and see what materials -' are 4 there that would assist in determining the claims that

5 are before the court. 6

THE COURT: (Inaudible) "

MS. HAYES: Well, at least - - we still want to

8 get that letter that we keep being shown about the 9 Codeine, and we still haven' t seen a complete copy of

10 that yet, and they did waive privilege on everything

11 that goes to the basis of the claims that are in front 12 of the court, but I don't want my own fishing expedition

13 to go through a file that there may be things in there 14 that aren' t privileged. 15

THE cOURT~ Do you want to ask this witness

16 about things that were gone into on direct with his file 17 or if you want to take this witness as your witness and

18 ask him things about his file, you may do so, but I 19 don't know of any basis for me to look at that file in 20 camera right now. 21

MR. ROBINSON: Your Honor, also, as you saw, I

22 only asked him about one letter in this file; I only 23 brought his attention to one letter in the file, and on 24 disclosing that letter to the AG's office, if I can, I'd 25 I ike to think about that over night as to how we want to BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. I 11-16-05

I think we can probably work that

1 deal with that, but

2 out, as we very often work many things out.

3 But as far as looking at the rest of this 4 file, that's discovery. That is something they could 5 have asked for in discovery. They could have asked for 6

They never asked for any

counsel's files in discovery.

7 discovery, and it does not seem to me at this point in 8 time that they should be allowedi because we happen to 9 have files at defense counsel, that they should now be

10 allowed to see these files of defense counsel. THE COURT:

I don i t think I would enter any

12 order instructing you to provide the files, but I

13 certainly looked at the letter that you showed this 14 witness while he was on the stand and questioning him

15 about it. 16

MR. ROBINSON: Okay, that's fine, Your Honor.

MS. HAYES: It is a seven page very lengthy

let ter.

Could we please just take a five minute recess

19 before I decide if I'm through on this witness? 20

THE COURT:

Do you have any other questions

21 for this witness besides what you have on that letter? 22

MS. HAYES:

(Short Pause)

24 25

No, Your Honor.

MS. HAYES: We 1 ve reviewed it.

Your Honor.

No questions,

Pass the witness.

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222

THE COURT: Can this witness be excused?

1 2

Honor .

MR. ROBINSON: Yes, Your

MS. HAYES: Yes.

THE COURT: ( Inaudible)

MR. ROBINSON: Your Honor, if I may at this

6 time I'd like to offer some of our exhibits into

7 evidence. 8

THE COURT: How many exhibi ts do you have?

MR. ROBINSON: Your Honor, I'd like to move 6 , a letter from Harold Comer to

10 into evidence Exhibit

11 Hank Skinner dated 6-24-94. Plaintiff's Exhibit 7 -7 has been admitted.

THE COURT:

MR. ROBINSON:

7 has been admitted, Your

14 Honor. Exhibit 8, which is a letter from Harold Comer

15 to Hank Skinner dated 6-25-94. 16

THE COURT: Admitted.

MR. ROBINSON ~ The letter to Harold Comer from

(/t 1~ Hank Skinner dated 6-25-94 is Exhibit 8, actually an

19 excerpt from that exhibit.

20 Exhibi t 9 is the court order for release of 21 records and documents. Exhibit 10 is Hank Skinner's 22 medical records from Coronado Hospital to Mr. Comer.

23 Exhibit 11 is Hank Skinner's jail inmate records to Mr. 24 Comer, and we had testimony about Exhibit 12, which is 25 Hank Skinner's prescription records, shown to Mr. Comer. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-944~:

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EVIDENTIARY HEARING, VOL. I 11-16-05 1

And we had testimony about the aff idavi t of Harold Comer

dated 10-28-97, No. 13. The affidavit of Jimmy Hayes

dated 2-02-01

THE COURT: What exhibit is that?

MR. ROBINSON: No. 22.

THE COURT; 10, 11, 12, 13 and 22?

MR. ROBINSON: Yes, sir. Exhibit 73 is another affidavit of Harold

Plaintiff's Exhibit 77, which is the fax from Mr. Harold

ttl l

Comer dated 7-22-03. And

Comer.

THE COURT: Any obj ect ions?

MS. HAYES: On No.6, we still don' t have a

complete copy of No.6. That's the plea bargain letter,

so we would obj ect on completeness grounds. We obj ect

on 13 and 22, those are both affidavits. We object on

hearsay, and they were not adopted by ei ther witness

when they testified.

THE COURT: Any further obj ections?

MS. HAYES: No, Your Honor.

THE COURT: 8,9,10,11,12,22, and 77 are

admitted. The objection is sustained on 13 and 77

22 23

MS. HAYES ; Actually, Your

13 and 22. MR. ROBINSON: 22 was the affidavit of Jimmy

Honor , we obj ect on

Hayes. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. I 11-16-05 1

THE COURT~ All right, the objection is

2 sustained on 13, 22, and 73. 3

MR. ROBINSON: Your Honor, not to belabor the

4 point, but we're offering the affidavits, Your Honor,

5 not for the truth of what they say, but because they do

6 reflect what these witnesses at one time gave as 7 testimony and I think in light of the testimony they

8 gave here in order to correctly (inaudible). And in 9 addi tion, Your Honor, when I asked Mr. Comer, Exhibit

10 73, an explanation of his earlier (inaudible) he said 11 that it was, with one exception there was one sentence

12 he would add, and it seems to me, Your Honor,

13 (inaudible) since he has testified under oath and they 14 had an opportunity to cross examine him on (inaudible) THE COURT: Wel i, I don' t want to draw this

16 thLng out any longer than is necessary, it's an 17 important hearing, but we need to move along, but if you to re-call; but

l~/ 1l need to re-call him, he's still subject

19 the objection is hearsay. 20

No.6, what's Petitioner's Exhibit 6?

MR. ROBINSON: Oh, are you asking me, Your

22 Honor? Your Honor, I think that we can provide them

23 with complete copies of these -24

THE COURT:

I'll hold up on my ruling on No. 6

25 if you can do that. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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MR. ROBINSON; And that's true also to No.7.

MS. aDEN: Didn't we just see that?

MR. ROBINSON: Oh, 7 is admitted.

THE COURT:

I think you offered 7 ~ All right,

5 who's next? Call your next witness. MR. ROB INSON: May I have just a moment, Your

7 Honor? Your Honor, we call Andrea Reed. THE COURT: Right up here, ma' am. Are you the

9 same Andrea Reed who previous ly appeared? 10

MS. REED: Yes, Your Honor.

THE COURT: And you understand you're still

12 under oath?

MS. REED: Yes, Your Honor.

14 THE COURT; All right, the lawyer I appointed 15 is here in court. Come on up (inaudible). 16

MR. OWEN: May I inquire, Your Honor?

THE COURT: Yes.

ANDREA REED. Called bv Petitioner (Sworn)

19 20

DIRECT EXAMINATION

21 22

23 BY MR. OWEN: 24

BETTY TATE

Ms. Reed, where do you live? 603 (inaudible). i 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. I 11-16-05

THE COURT: You'll need to speak up. We're

2 having trouble wi th that microphone. 3

(By Mr. Owen) We'd appreciate you speaking up, Ms.

4 Reed. As the court saysi we're having a little trouble 5 hearing on that microphone.

6 Are you employed, Ms.. Reed? Part time (inaudible). A 7 How long have you known Mr. Skinner?

(Inaudible) .

So that would be probably in the early 1980' s at

11 some point? 12

(Inaudible) When you first knew Mr. Skinner at that time, were

14 you romantically involved with him? 15

Right after we got involved.

So you knew him for a while --

MS. HAYES: Your Honor, we're st il i having --

17 l

19 we still can't hear the witness. 19

(By Mr. Owen)

If you could repeat your answer I "d

20 appreciate it. 21

When I first met him I was (inaudible).

And did the romantic relationship lead to plans for

23 a marriage? 24

Yes.

And what ultimately happened with your plans to

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227

1 marry him? 2

I was get t ing 0 lder (inaudible).

3 Q So you were the person who decided no~ to go 4 through with that? 5

(Inaudible) .

Yeah.

MS. HAYES: We can' t hear at all, Judge.

MS. aDEN: Can we possibly move one of the

8 microphones? THE COURT:

I don' t think that would work.

10 think it i S in the wires. Whoever is going to take this 11 witness on cross can pull your chair up here closer, and 12 so can these lawyers. 13

(By Mr. Owen)

Did you

also have contact with Mr.

14 Skinner through Alcoholics Anonymous? 15

Yes, I did.

And what was the nature of your interaction with

17 him in the context of Alcoholics Anonymous? 18

I was one of his sponsors.

For those of us who may not THE COURT: Do you think it would he lp - - are

21 you chewing gum? 22

THE WITNESS: No, sir, it's my teeth.

THE COURT: All right. Well, try to speak up.

(By Mr. Owen)

Did you also act as Twila Busby's

25 sponsor in Alcoholics Anonymous? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. I 11-16-05 1

Yes, sir. Part time I did.

And did you also serve as the Alcoholics Anonymous

3 sponsor for Mr. Skinner's ex-wife, Connie, at one time? 4

Yes, I did. I'm going to turn now to the subj ect of your

6 testimony at Mr. Skinner's 1995 trial. THE COURT: Hold on one second... go ahead.

7 8

(By Mr. Owen) Ms. Reed, were you called to testify

9 as a witness by the prosecution in Mr. Skinner's capital

10 murder trial? 11

Yes, sir, I was.

When John Mann asked you at Mr. Skinner's trial how

13 Mr. Skinner was able to get into your house on the night 14 of the murders and you told him that you did not know,

15 was that true? 16

No, sir, it was not.

Could you tell us what the truth was?

(Inaudible) First he was banging on the side of the

1$'

trailer.

I realized he was there.

I hollered at him'

2 a and I ended up helping him up the porch steps and into

21 my front door. So he - - was he able to walk up the steps on his 22 Q 23 own and into your house or was it necessary for you to 24 help him? 25

was necessary

for me to help him up the stairs

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229

1 onto the porch (inaudible). 2

Were your children, Jessica and Christopher,

3 present in the front room of the house when you helped

4 Mr. Skinner into the house?

5 A No, sir, they were not. 6 Q Where were they? 7 A They were in the back bedroom.

8 Q Had you been in the back bedroom wi th them earlier? 9

Ye s , I had. They cal led me back.

And that's where you were when what happened?

11 A 12

When John Mann asked you and you testified that

13 after Mr. Skinner was inside your house, that he took 14 off his shirt and laid it over the back of a chair, was

15 that true? 16

No, sir.

What was the truth about that?

Henry, remember, I think he unsnapped his ghirt but

19 because of his hand, I helped him take his shirt off 20 (inaudible) and I laid it on the top of the chair, you

21 know. (Inaudible). 22 Q And why

did you take the chair -- I'm sorry, you

23 just answered that question.

24 When you testified atMr . Skinner's trial that 25 he was heating up sewing needles, and attempting to bend BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. I 11-16-05

1 them so that they could be used to sew up his hand, was

2 that true? 3

No, sir.

Was anybody trying to heat up and bend needles for

5 that purpose? 6

Yes, s ir .

Who was that?

I was.

Was Mr. Skinner at that time able to perform acts

10 that would require that kind of coordination? No, sir. A 11 12

Were either of your children, Jessica or Chris, in

13 the room wi th you while you were trying to tend to Mr.

14 Skinner's inj ury? 15

No, sir.

Where were they?

They were in the back room.

When you testified at trial that while you were out

18 ft'

19 of the front room of the house, Mr. Skinner went on hiĂŠ

20 own into the bathroom. Was that true? No, sir. A 21 22

What was the truth about that?

He needed to go to the bathroom and

I helped him

24 walk down the hall to get to the bathroom (inaudible) 25 down the hall through my bedroom and he went to the BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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231

1 bathroom. 2

And after he had used the bathroom did you assist

3 him in getting back to somewhere else in t1;e house?

4 A Yes, I believe so. 5 Q When you testified at trial that Mr~ Skinner warned

6 you that if you tried to telephone anybody he would kill

7 you, was that true?

8 A No, sir. 9

What was the truth about that?

He never said that he would

kill me.

11 Q Did he say anything about your trying to telephone 12 anybody?

13 A He just said I should not call anybody. 14 Q When you testified at trial that out of all the 15 stories Mr. Skinner told you on the night of the murders

16 while he was at your house, that the only one he swore 17 you to secrecy about was the story that he believed he 18 had kicked Twila Busby to death, was that the truth? 19

No, sir.

What was the truth about that?

Every story he told me (inaudible) he would whisper

22 the same thing, don i t ever tell anybody. 23

And did that happen once i more than once, several

24 times? Several times. A 25 BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. I 11-16-05

1 Q At some point early on the morning of January the 21st, 1994, did law enforcement officers arrive at your

3 house?

Yes, sir.

And was that the first indication you had that the

6 law might be looking for Mr. Skinner? 7

I knew that he had warrants but I didn i t know that

8 the police were looking for him like that (inaudible) 9

And just so I'm clear, the warrants that you

10 understood them to have out for his arrest related to 11 something other than the murder of Ms. Busby and her

12 sons; is that right? 13

Yes.

Did

the law enforcement officers that came to your

15 house take Mr. Skinner into custody? Yes, they did. A 16 17

Q And after he was taken into custody did they search

1~~

your home?

Yes.

Did they put up any kind of barrier around your

21 property? 22

Yes, sir. A line of tape.

And where did they put that up? On your house,

24 around your yard, where was it? 25

It was around across the front gate and

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EVIDENTIARY HEARING, VOL. I 11-16-05

1 (inaudible) . 2

After Mr. Skinner was taken into custody were you

there at your house?

3 questioned by the police

Very little.

Who were the people there who questioned you?

Katie Gerhardt and Bill McMinn.

Were there other officers present?

Yes, sir.

Where at your house did they question you? What

(Inaudible) .

10 room were you in? 11

In the front room.

12 Q At that time were you concerned that you might be 13 in trouble for anything connected to your contact with

14 Mr. Skinner on that night?

15 A After they questioned me? 16 Q Uh-huh.

17 A Yes, sir. 18 Q And what about their questions to you left you with 19 that impression?

20 A When Katie said that if I had invited Hank into my 21 house, knowing -THE COURT: Katie is Katie who?

22 23

Katie Gerhardt. They said that if I had invited'

24 Hank into my house, knowing that they

had warrants, that

25 I could go to j ai i, be arrested for harboring a wanted BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I

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11-16-05

1 criminal and offering protection from the law. 2

(By Mr. Owen)

Did they ask you anything about why

3 you hadn' t Ie f t the house? A

Yes.

When we was standing - - Hank was here and I

5 was here and the door was right here and Hank was behind

6 me, and * * * * * * * * * * * * * * * * * * * * * * * *

7 **************************** 8 **************************** 9 ****************************

10 * * * * * * * * * * * * * * * * * * * * * * * * * * * * 11 * * * * * * * * * * * * * * * * * * * * * * * * * * * * 12 * * * * * * *9 * * * * * * * * * * * * * * * * * * * l 13 PFF*lIf Hank was sitting there with his legs under the 14 table, and you were setting here, why didn't you just

15 get up and run out the door?" 16

What did you tell her?

I said, "I had babies in my house.

Where the hell

1ยก#' did you think I was going to go?" 19

And did she seem to accept that answer?

No, she didn' t believe me.

And from what do you draw the conclusion that she

22 didn't believe you? 23

She told me so.

Oh, she told you so.

Okay.

After telling you that

25 she didn' t believe you, did she continue to ask you that BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. I 11-16-05

1 question to try and get a different answer? 2

Yes, sir.

Were you asked how Mr. Skinner had got ten into your

4 house in the first place? 5

Yes, sir.

Do you remember what you told them about how he had

7 gotten in the house? 8

I told them that I didn' t know how Mr. Skinner got

9 inside the house. 10

And did they appear to believe you when you told

11 them that you were not sure how Mr. Skinner had gotten 12 in your house? 13

No, sir.

And how do you - - from what do you draw the

15 conclusion that they didn' t believe you? 16

(Inaudible) .

Did the fact that she had repeatedly told you that to these

18 she didn' t believe the answers you were giving

19 questions cause you to have any concern about your own 20 exposure in this matter, or that you might be charged

21 with a crime? Yes, sir. A 22 23 Q What were you thinking or feeling when she was

24 saying these things to you? 25

That I didn't know (inaudible)

She kept saying I

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236

1 could be arrested as an accessory after the fact

2 (inaudible) 3

Sure.

I was asking what was running through your

4 mind in terms of your concern that you might be charged 5 with a crime based on what you had done for Hank that

6 night. A

It's just that I told them I did not do anything to

8 help him or protect him, or assist him in my house

9 (inaudible) . 10

And that was a conclusion that you drew based on

11 what they were saying to you, or did you have that based

12 on some other experience or some earlier facts, sort of had happened to you in the past, or what

13 thing that

was

14 the basis for that concern? 15

What they were saying to me (inaudible)

MS. HAYES: Hearsay (inaudible).

MR. OWEN:

It's for the state of her mind,

Your Honor, is the reason why I asked her the question.

MS. HAYES: But it's leading.

THE COURT: Sustained as to leading~

(By Mr. Owen) At some point, Ms. Reed, did they

22 take you elsewhere for more questioning? 23

Yes, sir.

where did they take you?

To the Pampa Police Department.

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EVIDENTIARY HEARING, VOL. I 11-16-05 1

237

Did you have the opportuni ty to take yourself to

2 the Pampa police Department? 3

No, sir.

And did you express a desire to take yourself to

5 the police department? 6

Yes, sir.

And why wouldn't they let you do that?

I don't know.

MS. HAYES: Objection, Your Honor, calls for

10 speculation. THE COURT: Sustained.

11 12

(By Mr. Owen)

If you know, why wouldn't they let

13 you do that? If you don't know, that's okay. 14

I really don't know.

And how did you get to the police department?

In the police car.

Did anyone else go with you?

My daughter.

What happened to your son?

He had to go over to the neighbor's (inaudible).

The neighbor who came over to take your son while

22 you were away from home, was anything said to him in

23 your presence that also had the impact on your mind of 24 making you feel that you were possibly at risk for being 25 charged wi th a crime? BETTY TATE, 3101 TOWNBLUFF DR.

#923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

238

MS. HAYES: Obj ect ion, leading.

THE COURT: Don' t lead the wi tnes s, counse i.

MR. OWEN:

THE COURT: Sustained.

I'm sorry, Your Honor.

(Inaudible)

(By Mr. Owen) Did Katie Gerhardt say anything to

6 your neighbor when he came over to take your son? 7

Yes, sir.

What did she say? MS. HAYES ~ Obj ection, hearsay.

MR . OWEN:

I'm sorry, Your Honor, it goes

11 to -- the reason I'm asking is for her state of mind.

12 She' s testified that she believed, based on the things 13 that were being said to her -14

THE COURT; I'll allow that.

THE WITNESS: Do I answer?

THE COURT: Yes.

She said that Jerry was - - "Gerry, don' t step up on

l l/ 1~ this porch and get back away from the house because this

19 is a triple homicide crime scene." 20

THE COURT: Who is Gerry?

THE WITNESS: Gerry Douglas.

THE COURT: The neighbor?

THE WITNESS: The neighbor who took care of' my

24 son. 25

(By Mr. Owen) How old was your daughter, Jessica

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX~ 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05

239

1 at this time? 2

She was eleven.

She was eleven years old. Had there been any time

4 while Mr. Skinner was in your house that Jessica and Mr.

5 Skinner were together that you were not also present? 6

No.

At the police department did you learn for the

8 first time who it was that had been killed? 9

I learned part of it through (inaudible)

At the police department did you end up givLng a

11 statement to a police officer about the events of the

12 night? 13

I spoke with a police ofÂŁicer and gave a statement.

And that statement was reduced to writing and you

15 signed it as representing what had happened to you that

16 night? 17

Yes, sir.

Now you testified here this afternoon that a number

19 of the things you said at Mr. Skinner's 1995 trial we~e

20 not true. Were those same untrue things in your

21 statement that you signed at the police station? Yes, sir. A 22 23

Why did you put those things in that statement if

24 they were not true? 25

Because (inaudible)

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

240

Was your daughter, Jessica, also present at the

2 police station when you made that statement? 3

Yes, sir.

And was she also questioned by the police?

Yes.

Did she give a statement?

Yes, sir.

I didn't like it.

Was there anything about her that made her

How did you feel about her

being questioned?

11 different from other eleven year old girls that made you

12 especially concerned about her being questioned in a

13 matter like this? 14

(Inaudible) . After you had given your statement were you given a

16 ride back home or how did you get back? 17

No, sir. They didn't give me a ride back home.

1* (Inaudible) 19

How did you get back home?

I .,. (Inaudible).

Did they take you back to your house where you

22 lived? 23

They took me to that area (inaudible).

Were you even allowed to go back into your home,

25 though, to stay, or did you have to stay away for some BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

241

EVIDENTIARY HEARING, VOL. I 11-16-05

1 period of time? 2

Yes, sir, I had to stay away.

where did you stay while you were not allowed to be "

4 at your house? 5

At my mother's.

Before Mr. Skinner went to trial in 1995, did you

7 also testify at two other court proceedings, preliminary

8 matters that preceded his trial? 9

I don't know.

I know I did at one but I don' t

10 remember about the other (inaudible). 11

Do you remember testifying at least once before you

12 actually testified in his trial? 13

Yes, sir.

When you testified in that initial proceeding, did

15 you testify to the same false statements about what

16 happened on the night of the crime that you later

17 testified to in Mr. Skinner's trial? Yes, sir. A 18 19

Why?

Same reason.

(inaudibl e)

I did not want to go to jail

I did not want them to think I was

22 involved. 23

Did you also have any hope of keeping Jessica out

24 of these events as a witness? 25

Would you ask that again?

BETTY TATE, 3101 TOWNBLUFF DR.

(Inaudible) .

#923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

242

Did you also hope by testifying in a certain way to

2 keep your daughter out of this? 3

MS. HAYES: Obj ection, leading.

THE COURT: Don't lead the witness, counsel.

MR. OWEN: Sorry, Your Honor.

(By Mr. Owen)

Did you have any other reason, other

7 than your concern for yourself, for testifying in a 8 particular way at any of these proceedings? A

They promised me that Jessica would not have to

10 testify if I testified. 11

Were you ever told

THE COURT: When was this?

THE WITNESS: (Inaudible).

(By Mr. Owen)

Prior to Mr. Skinner's trial, did

15 there come a time when the prosecutors were looking for

16 your daughter, Jessica, and couldn't locate her? Yes, sir. A 17 tl

18~

And did they ask you for help in finding her? . Yes, sir.

And did they tell you what would happen to you if

21 they were unable to find her? MS. HAYES: Obj ection, leading and hearsay.

(By Mr. Owen) What did they tell you when they

asked you

I'm sorry. THE COURT: Leading, sustained.

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EVIDENTIARY HEARING, VOL. I 11-16-05

243

Q (By Mr. Owen) What did they tell you when they

came looking for help in finding Jessica?

A They said that if I did not tell them where she was

at so she could testify that they could put me in jail

until such time I decided (inaudible)

THE COURT: Who is they?

THE WITNESS: Bill McMann and (inaudible). (By Mr. Owen)

held in Pampa?

Ms. Reed, was Mr. Skinner's trial

A No, sir.

Q Where was it?

A In Fort worth.

Q With respect to get t ing to Fort Worth for the

trial, how did you get there?

A I flew.

Q I'm sorry?

A I flew.

II' t.( 18

Q Where did you fly from?

A Amarillo.

Q And could you describe for us how you were

transported from Pampa to Amarillo?

A I'm not sure. All I knew was my daughter

(inaudible) .

Q When you got to Fort worth, where did you stay?

A In a motel room. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

244

EVIDENTIARY HEARING, VOL. I 11-16-05 1

And were there law enforcement officers at that

2 hotel? 3

Yes, sir.

What interaction, if any, did you have with them?

None.

Were you - - did you leave your room while you were

7 at the hotel? 8

No, sir.

Why not?

I was told I was not allowed to leave my room.

And who told you that?

Katie Gerhardt and Bill McMinn.

Whi Ie you were in Fort Worth but before you

14 testified, did you meet with Tracie Jennings, one of the

15 prosecutors about your testimony? 16

At the courthouse, yes, sir.

i 7

I t was at the courthouse. What do you remember

i!r-

181l about meeting with her? 19

She brought pieces of plastic (inaudible) with this

20 paper to me and it had been typed and then there were

blank sheets of paper behind it. She said, "You 22 read over this. This is your part (inaudible)

need to

23 understand what youJre supposed to say." 24

And when you had finished reading it, what did you

25 do with it? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16-05 1

She took it back.

In 1995, after

245

been convicted and

Mr. Skinner had

3 sent to death row, did you come to have misgivings about .

4 your testimony in this tri.al? Yes, sir. A 5 6

Did you contact anyone in 1995 to communicate those

7 misgivings? 8

MS. HAYES:

Obj ection, Your Honor, assuming.

THE COURT:

Overruled.

the question.

(By Mr. Owen)

I'm sorry, I believe you can answer

Did you contact anyone in 1995 to express

12 those misgivings about your testimony? 13

Yes, sir.

who was that?

I believe -- I don't know who I called first but I

16 found out the Maggards' name and number, so I called Mr.

1 7 and Mrs. Maggard. 18

And who are Mr. and Mrs ~ Maggard?

They are the Reverend and

his wife (inaudible)

20 friends of Mr. Skinner's (inaudible). 21

I'm going to -MR. OWEN:

I f I may - - may I approach the

23 witness, Your Honor? THE COURT:

(By Mr. Owen)

Yes. Ma' am, I'm going to show you what's

BETTY TATE, 3101 TOWNBLUFF DR. #923/ PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 11-16 - 05

246

1 been marked for identification as Petitioner's Exhibit 1 2 and ask you if you'd take a look through it (inaudible)

3 and ask you whether after you contacted the Maggards,

4 you eventually gave this statement to representatives of

5 Mr. Skinner's defense team?

6 A Yes, sir. 7 Q And was everything in that statement true and 8 correct when you gave it? 9

Yes, sir.

And is that your signature on the document?

Yes, sir.

MR. OWEN~ We'll pass the witness, Your Honor.

MS. HAYES: May we approach, Your Honor?

THE COURT: You may.

(S idebar Conference)

THE COURT: The court will recess for the day

17 and we' i i be back tomorrow morning at 9: 00 0' clock. t

1~(f": 19

(Hearing Recessed)

20 21 22 23

24 25

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I 1.1-16-05 1

2 **** 3

4 TRANSCRIBER'S NOTE: 5

6 Judge Averitte and his staff were unaware that the 7 electronic equipment in the courtroom was malfunctioning 8 and only the Respondent's microphone was operational. 9 Therefore, I w.as unable to transcribe much of the

10 proceedings. 11 12

Bet ty Tate

Court Transcriber

15 I, Betty Tate, certify that the foregoing is a correct 16 transcript of Vol. I from the electronic sound recording

17 of the proceedings in the above-entitled matter. 18

20 21

January 3, 2006

~~ ,dlcÂż

22 23 24 25

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442