What's Wrong With Being Right?

by Katherine Scardino

Hank Skinner is about to die. He is a convicted capital murderer with an execution date of March 24, 2010. However, there's a problem. Hank Skinner has continuously said that he is an innocent man. We don't know that he's an innocent man. But there's one way to determine whether he's telling the truth. For fifteen years, Hank Skinner has asked for a DNA analysis of the evidence in his murder trial. He was convicted of bludgeoning to death his live-in girlfriend, Twila Busby, and stabbing to death her two mentally impaired sons, Randy Busby and Elwin Caler. The murders occurred on December 31, 1993. Skinner was convicted of the murders on March 18, 1994, and sentenced to death on March 23, 1995.

Skinner has filed numerous appeals. This article isn't about whether Hank Skinner is guilty or innocent. It's about whether his request for DNA testing should be granted. Regardless of the facts of any case, if there's a test that would resolve the issues, wouldn't most people say: Go ahead and do it? Let’s settle this issue once and for all. If Hank Skinner’s DNA is linked to evidence used to prove his guilt, then by all means, let’s show it. If Hank Skinner’s DNA isn't on that evidence, then let’s show that also. Who would object to that? Well, let’s answer that. Maybe the prosecutor, who wouldn't want it proven that he got the whole case wrong? The judge, who wouldn't want to be reversed -- and revealed as a total idiot whose every ruling and the theory of the case presented by the State were totally and provably wrong. Just wrong. No one wants to be proven wrong.

So what's the issue? It's that Hank Skinner has asked for a DNA analysis of the untested evidence ever since his 1994 trial, and has been refused every step of the way. My question is this: If a simple DNA analysis would prove this man innocent, or even throw some doubt on his guilt, what in holy hell is wrong with doing that?

I'm not saying Hank Skinner is innocent. I have no idea about whether he is actually innocent or guilty as sin. My question is simply -- if this man’s culpability can be shown by a simple test, why in the world would the State be opposed to it? He is about to die, for God’s sake. What would they be afraid of? Are we so into this idea of finality that we forget what is really fair? The State argues that finality is the goal, and the courts have ruled. But DNA testing is in the hands of the State. They could have answered this question years ago.

Hank Skinner has been accused and convicted of horrible crimes. Again, I reiterate, I have no knowledge whether Skinner is guilty or innocent. I just know that when a person proclaims his innocence, over and over to every appellate court possible, and the State refuses to do the simple DNA testing that would resolve several layers of appellate review, I get suspicious. Why the opposition? The DNA would show one way or the other, right?

It reminds me of the Timothy Cole case. Timothy Cole was convicted of the 1985 rape of a Texas Tech student and  sentenced to 25 years in prison. His conviction was based in part on the victim’s identification of him as her attacker, in part on what a judge later called faulty police work and a questionable suspect lineup. The victim later fought to help clear Cole’s name. Cole died in prison in 1999, at age 39, after an asthma attack sent him into cardiac arrest. Cole was cleared by DNA in 2009, posthumously exonerating him, after repeated confessions by another man in 2008.

When Gov. Rick Perry pardoned Timothy Cole, it ended the Cole family’s long battle to clear Timothy’s name. But it did something else. It reminded all of us that Timothy Cole was wrongfully convicted of rape two decades ago, and DNA would have proved his innocence -- if someone had had the cajones to stand up and say we should give this man have the test he was asking for. DNA would have disposed of this case years ago. Why did we take so long? As I see it, there is only one answer. Pride. The prosecutor. The judge. The defense lawyer. What was the delay? If there is an iota of reason why a defendant should have DNA testing of any piece of evidence, why in the world would anyone object?

But what about the case of Cameron Todd Willingham? He was executed in 2004 for arson in a fire that killed his children. At his trial, forensic experts for the State said the fire was set intentionally. But later, other experts in forensic evidence involving arson found the forensic science used in the case was invalid and that the analysts should have known that it was faulty at the time of their testimony. Simply put, Texas executed an innocent man.

About four years ago, the Texas Innocence Project, of which I can proudly say that I am a board member, asked the Texas Forensic Science Commission to review the Willingham case and similar cases. The conclusion of the Texas Innocence Project is that there are likely other cases in Texas like those of Timothy Cole, Cameron Todd Willingham, and maybe Hank Skinner. Science proved Timothy Cole’s innocence 10 years too late. It threw Cameron Todd Willingham’s case into doubt several years too late. And it will soon be too late for science to prove whether Hank Skinner is an innocent man.

If an inmate says “I am innocent and I can prove it,” what's wrong with letting him prove or disprove his innocence with DNA testing? It seems silly to even try to argue that denying this testing serves justice in some way. When Gov. Rick Perry pardoned Timothy Cole this year, it was good for Cole's his family but embarrassing for the State of Texas. We had a governor who refused for a very long time to address this issue. It took years. Nor should Perry granted Cole a pardon. Cole should have been exonerated years ago; the television cameras would have been at the front door of the prison as he walked out, a free man.

The State of Texas needs to do some re-thinking, and our citizens should remember this at the voting booth.

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Money and Murder

by Katherine Scardino

Did you know it costs more than $2 million, give or take a few hundred thousand, to prosecute a capital-murder defendant from the moment of arrest until the jury returns a verdict? That's without the continuing costs of a decade or so of appeals of every death sentence.

Killing a citizen for killing another citizen to prevent the killer from killing again is costly -- and frankly, embarrassing. Many studies find there is absolutely no evidence that executing the “worst of the worst” deters anyone from committing any kind of crime, especially murder. In 1995, a poll by Hart Research Associates found that the majority of police chiefs did not believe the death penalty significantly reduces the number of homicides. In fact, these police chiefs ranked it as the least effective way to reduce crime. The only thing Texas has gotten from all its many executions is a bad reputation and the distinction of killing more people than any other state in the United States, as well as some entire countries.

After 33 years of executions (since the U.S. Supreme Court allowed restoration of the death penalty in 1976), some states are looking at the bottom line: What are we getting in return for executing violent criminals? New Mexico recently backed away from capital punishment. The cost is too great for the return; worse, several prisoners have been exonerated, which can scare even the most steadfast death-penalty supporter. No one can stomach the execution of an innocent person.

Texas is currently in turmoil over the 2004 execution of Cameron Todd Willingham, who was convicted of setting a fire that killed his three young daughters in 1991. The evidence used to declare the fire arson in 1991 has been found flawed and unreliable by Texas' arson commission in 2009.

It appears that Texas did, in fact, execute a man for a crime he did not commit. Oops! My bad! What else can we say? Well, according to Gov. Rick Perry, right after he replaced three members of the arson commission, Cameron Todd Willingham (photo below) was a “bad man” who deserved to die, right? No, Gov. Perry, you are wrong. Whether Mr. Willingham was a “bad man” wasn't the point. The point is that Texas spent the money to have a jury trial, and presented bad, incompetent, allegedly “expert” evidence about arson -- and that this evidence led a jury to find Willingham guilty of capital murder and sentence him to death.

There are so many flaws in the U.S. capital-punishment system that it's hard to pick just one. It would be nice if capital punishment were eliminated in the United States so we could join the company of the rest of the world's civilized nations. But more likely, it will be because of money, money, money.

Let’s look briefly at the money issue. In Texas, a death penalty case costs an average of $2.3 million, about three times the cost of imprisoning someone in a single cell at the highest security level for 40 years -- and that's from a Dallas Morning News report back in 1992! Obviously, as of 2009, the cost is even higher. In California, the death-penalty system costs taxpayers $114 million each year, above and beyond the costs of keeping convicts locked up for life. (L.A. Times, March 6, 2005).

The cost of a capital crime -- a crime for which a person may be sentenced to death -- can be too much for some jurisdictions, such as Austin County, Texas. In August in a small, bucolic community halfway between Austin and Houston, four men, all relatives, were arrested, jailed and charged with capital murder in the death of a Houston doctor visiting his summer home there. Austin County hasn't had a capital-murder prosecution in 15 years. The cost of prosecuting these four men for capital murder will be prohibitive. Each of the four defendants is entitled to two defense lawyers, defense experts, and a multitude of other defense expenses.

So: What if smaller counties “Just Say No”? Their resources could be channeled into better schools, more police officers, solving old crimes, building new libraries, etc.

That would leave only the larger jurisdictions prosecuting capital cases. And how could that be acceptable? That would mean if someone committed a capital murder in Harris County, for example, they could be sentenced to death. If the same person committed the same crime in a small county, he wouldn't be charged with capital murder -- so punishment would be determined by where a crime was committed.

That is exactly what is happening in various counties across Texas, making the death penalty even more flawed and inequitable.

The cost of prosecuting a capital case is enormous. The return is small -- so small that all you get back is one executed person unable to commit any more crimes -- and a lot of invoices. Let’s ALL just say no.

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