Skinner looks to federal court for hope

After 16 years on death row, Hank Skinner is on a run of high-profile and historic victories.

Most significant, both for him and in cases yet to come, have been those tied to his legal and public relations campaigns to gain access to untested DNA evidence in the killings of his live-in girlfriend, Twila Busby, and her two sons.

On Monday, the latest chapter in Skinner’s case begins at a federal courthouse in Amarillo, where U.S. Magistrate Judge Clinton E. Averitte will hear Skinner’s civil rights lawsuit. Another execution date looms, this one set for Nov. 9.

The new proceedings are the product of a last-minute stay of execution the United States Supreme Court granted in March — Skinner’s second since he has been on death row.

At issue was whether a federal civil rights lawsuit is a proper vehicle for a convicted prisoner to petition for access to DNA testing. A 6-3 majority on the court thought so, and Skinner’s attorneys swiftly filed the federal lawsuit that will be heard Monday.

Skinner contends additional DNA testing would exonerate him and implicate Busby’s late uncle.

In addition to the Supreme Court ruling, Skinner scored another victory in June, when lawmakers stripped Texas’ post-conviction statute of a once-powerful tool prosecutors and judges wielded to deny prisoners’ DNA petitions.

Previously, those who challenged their convictions citing untested DNA evidence had to prove, among other things, that the evidence was not tested at trial through no fault of their own.

State and federal courts sided with prosecutors, who argued Skinner had his chance to ask for DNA testing before his trial.

Gray County prosecutors did test some DNA evidence, which showed Skinner was at the Pampa home where the killings happened.

He never denied that, but he said a vodka and codeine cocktail left him too incapacitated to commit a triple homicide.

Skinner identified seven items that were never tested: a blood-splattered windbreaker often worn by Busby’s uncle, hair found next to her body, two knives, a rape kit, her fingernail clippings and a bloody dish towel.

State and federal judges ruled Skinner was at fault for not requesting DNA tests before his conviction.

“The new law was intended to make advanced DNA testing available in all cases where it can aid the truth-seeking process, and Skinner’s case falls squarely within that category,” said the law’s sponsor, state Sen. Rodney Ellis, D-Houston.

Now that the no-fault provision, as it is called, is no more, Skinner has met the legal requirements to have the crime scene evidence tested, his attorney Rob Owen said.

Bolstered by the recent victories, Owen has set his hopes on 31st District Court Judge Steven R. Emmert, in Gray County, who has yet to rule on Skinner’s latest motion.

That motion, Skinner’s third, is at the center of Monday’s hearing in federal court, where Averitte will hear arguments about whether he should dismiss Skinner’s case because the new law has rendered the federal case moot.

If Averitte finds there’s no controversy, then he must dismiss the case.

Owen will ask the federal court to hold off on a decision until Emmert rules.

Owen said he could voluntarily withdraw the federal suit if the state court grants the DNA testing.

“The question is, really, in advance of the state court acting, what should the federal court do,” he said.

State prosecutors said in a legal brief “there is a slight chance that Skinner’s lawsuit will become moot in the future” and asked the judge to rule on the case immediately.

Since the state’s highest criminal court has denied Skinner’s DNA motions twice now, Skinner’s third attempt will meet the same fate, the brief states.

The state Attorney General’s Office declined to comment.

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