October 6, 2011 - PRESS

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NEXT VERSE, SAME AS THE FIRST JEFF GAMSO FOR THE DEFENSE


OCTOBER 6, 2011

Thursday, October 6, 2011 Next Verse, Same as the First

By Jeff Gamso – Gamso for the Defense Really, it gets tiresome asking the same questions over and over again.

But then, nobody's ever come up with any reasonable answers.

It's been about six months since we last checked in on Hank Skinner. That was back in March when the Supreme Court decided (6-3) that he could sue in federal court to declare that the Texas statute that prohibited him from getting DNA testing was unconstitutional. It didn't say he could get the DNA tested, didn't even say the Texas law was unconstitutional, just that he could try to convince a federal trial court that the law was unconstitutional (at least as applied to him). And once he convinces the judge, then he can get Texas to give him the DNA to test and he can prove, he says, that he didn't kill Twila Busby and her two sons.

It's been more than a decade now that Skinner's been trying to get DNA tested. At one point, Texas went along with it and agreed to test a bit of the stuff that was out there.

Heh. That'll show him. We'll test the DNA and it'll be him and there won't be no more of this bullshit claim that he didn't do it.

Yeah. Fuck 'im.

So they tested, but gosh darn, it wasn't Skinner.

Sheeeeit. Now what? No more DNA testing. That's f'r damn sure.

Which is what led to the Supreme Court case and all that.

OK, so now Skinner sits on death row in Texas waiting for the courts and then the test results and then an apology and the 80 grand a year that Texas law says goes to innocent guys who get convicted of crimes. Except, you know, if that were all there were to this, I wouldn't be writing about it now.

There have, in fact, been some developments over the past six months. Here's a short summary from David Protess writing at the Huffington Post.

As a federal magistrate in Texas considered the lawsuit that quickly followed, Skinner had another temporary stroke of good fortune. In May, the Texas legislature overwhelmingly passed a bill guaranteeing the right to post-conviction DNA testing, and in June Gov. Rick Perry signed it into law. The bill's sponsor publicly said that it was designed for cases like Skinner's and in memory of another prisoner, Tim Cole, who tragically died behind bars before DNA tests proved his innocence.

Suddenly, Skinner had two chances for justice: the federal lawsuit against the D.A. to gain access to the physical evidence in his case, and a new state law assuring the tests.

Except (you knew that was coming, didn't you?), that's not the whole story. The rest of the story is that . . . . Here's Protess again.

What happened next defies imagination. A Texas judge, days before the new statute went into effect and the DNA motion was filed, set another execution date for Skinner: November 9th. That's right. Skinner is scheduled to die in a month -- while two judges continue to contemplate whether he can test the evidence that might clear him.

Under other circumstances, the courts would issue a stay of execution and allow both civil actions -- one authorized by the highest court in the land, the other by the state legislature -- to move forward. Unfortunately for Skinner, however, the U.S. magistrate almost certainly lacks the authority in a federal civil case to issue a stay of execution in Texas. How about the state court judge with the DNA motion on his desk? He happens to be the same judge who set Skinner's execution date for November 9th.

So just over a month. Which is both plenty of time (the last time Texas tried to murder Skinner they were within an hour of getting it done when the Supreme Court stopped them) and no time at all.

My guess is that there'll be a stay. But it's really no more than a guess. Texas wants to kill Skinner. And it damn sure doesn't

want that DNA tested.

Which brings me back to where I started, with those questions I keep asking that nobody can seem to answer. There are two of them.

• Why not test the fucking DNA? • What are you afraid of?

Imagine for just a second that you're Lynn Switzer, the prosecutor. (Of course, if Lynn's reading this, no leap of imagination should be necessary.) You believe (at least I hope so), that Hank Skinner really killed those people so that his execution won't be what Harry Blackmun called "simple murder." (It'll be a more complicated murder, but I digress.) Because it's so damned obvious to you, you can't see the point in further DNA testing. OK, so you think it's silly.

• So what?

• Why not do it anyway? (Remember, you won't even have to foot the bill.)

• Where's the harm?

• You get to look caring and responsible and extra-careful. After all, you're planning to put someone to death. And you can convince all those dewy-eyed skeptics out there that you were right and they were wrong.

(Take that, Gamso.)

Or maybe not. Maybe you're not so sure. Maybe you have doubts. But after all, the jury said he did it. And there's no absolute, incontrovertible proof he didn't.

• Break a few eggs.

• Who gives a shit about Hank Skinner anyway?

• Just a bunch of do-gooder, rabble-rousers and outside agitators and troublemakers like Gamso and we'll never shut him up no matter what.

• And there ain't no point in double checking because fuck, what do I care?

• One less piece of shit convict.

But, if they get the real proof, then what do we do? We can't kill him if there's absolutely incontrovertible proof that he's the wrong guy. Or maybe we can hide the results? No, not in this case. Never get away with it.

Let's take the questions one at a time.

Why not test the fucking DNA? There's absolutely no good reason. There's no good reason not to test it in Skinner's case. There was no good reason not to test it in Michael Morton's. There is, I don't know how to say this delicately, there is NO GOOD REASON NOT TO TEST THE DNA. If it proves he's guilty, you've lost nothing.

If it proves he's innocent, you can save the life of an innocent guy.

If it's inconclusive, you're in the same position as you are now, but nobody can say you blew it off.

What are you afraid of?

There's only one possible answer. You're afraid that Hank's innocent. You're afraid that there's been a terrible mistake. And you don't want to know. But that means you'd rather kill an innocent guy than run the risk of learning you've got a killer out on the street. Which makes you wholly unfit for office.

Or even for being a member of the human community.

Ah, you say, but the interests of finality. What about finality? There must be an end.

I'm hesitant to travel too far down that road since it leads rather directly to Die Endlösung.

But look, death is as final as it gets. And if Hank is factually innocent? And you could have found out an acted?

But you didn't bother?

Executions are murder. Executing the factually innocent, especially when you purposely choose not to find out, is a calculated cruelty beyond anything even vaguely civilized. Maybe Die Endlรถsung wouldn't be so inappropriate at that. http://gamso-forthedefense.blogspot.com/2011/10/next-verse-same-as-first.html