PRESS
WIN FOR DEATH PENALTY ADVOCATES
EDITORIAL AUSTIN AMERICAN-STATESMAN
 MARCH 8, 2011
Win for death penalty advocates Editorial Board – Austin American Statesman Published Tuesday, March 8, 2011 The U.S. Supreme Court, in a 6-3 decision Monday, provided a significant victory for death penalty supporters by ruling in favor of a condemned Texas man battling for post-conviction testing of DNA evidence gathered at a grisly, triple-slaying crime scene in Pampa. At the heart of this case is the fundamental question — indeed, the only question — that permeates every death penalty case and every execution: Are we sure we've got the right person? Death penalty advocates, and we are not among those, should live with the perpetual fear of conclusive post-execution evidence that raises serious questions about guilt. That is why, as we noted in an editorial last March on the eve of the day on which he was to be executed, death penalty advocates should want the courts to give Hank Skinner the chance to make sure the state has the right man in the Pampa slayings. The Monday decision, allowing Skinner to pursue a federal civil rights lawsuit in which he is seeking courtordered testing of DNA evidence not used at his trial, gives him the right to make his case as to why that testing should be done. The ruling does not order such testing. It merely allows his lawsuit — which had been thrown out by lower courts — to proceed. Skinner, 48, was sentenced to die in the Dec. 31, 1993, triple murder of Twila Busby, his live-in girlfriend; and her sons Elwin Cater, 22, and Randy Busby, 20, at the Pampa home in which all four lived. Skinner has argued he was so incapacitated by drugs and alcohol that he could not have committed the murders. Skinner maintained that Robert Donnell, a now-deceased uncle of Twila Busby, was the killer. Donnell was an ex-convict with a history of physical and sexual abuse. At the trial, some crime-scene evidence that had been tested implicated Skinner. But, as a result of a defense decision, no testing was performed on an ax handle, vaginal swabs, fingernail clippings and hair samples. That is the material Skinner now wants tested. His civil rights lawsuit is his attempt to show why that should be allowed. Last March, the Supreme Court stayed Skinner's execution, hours before it was scheduled to happen, so it could decide whether he should be allowed to pursue his civil rights suit. The answer, overruling decisions by the Texas Court of Criminal Appeals and 5th U.S. Circuit Court of Appeals, came Monday in a majority opinion penned by Justice Ruth Bader Ginsburg. Again, it is important to note that the Supreme Court decision merely allows Skinner to make his case for DNA testing of the evidence. It does not order such testing, nor does it even approach the question of guilt. "While test results might prove exculpatory, that outcome is hardly inevitable," Ginsburg wrote. Ginsburg also discounted the prosecution's claim that allowing Skinner to pursue his case would invite a flood of similar suits from inmates merely trying to postpone their executions. Ginsburg noted that another legal avenue that allows similar lawsuits has produced "no evidence (of) ... any litigation flood or even rainfall." Robert Owen, a University of Texas law professor representing Skinner, said his side looks forward "to making our case in federal court that Texas' inexplicable refusal to grant Mr. Skinner access to evidence for DNA testing is fundamentally unfair and cannot stand." The Innocence Project, also representing Skinner, welcomed the Monday decision and noted there have been 266 post-conviction exonerations in the U.S., including 17 cases in which defendants who had been sentenced to death were found not guilty.
The cleverest of death penalty advocates note these exonerations in defending the ultimate punishment. The system, they say, has a way of protecting against wrongful executions. Maybe. But that is all the more reason why Skinner is entitled to make his case in court as to why he is entitled to DNA testing, which his then-lawyer opted against at trial. The Supreme Court decision was a victory for justice. http://www.statesman.com/opinion/win-for-death-penalty-advocates-1307519.html