Archive for the ‘Hank Skinner’ Category

U.S. Supreme Court grants Hank Skinner’s Petition for Certiorari

May 24, 2010

Great news for those supporting the cause of death row inmate, Henry W. “Hank” Skinner and the tireless efforts of the Medill Innocence Project to allow DNA testing that may potentially clear his name. From today’s Order List of the Supreme Court of the United States website:

The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted.”

The SCOTUS docket in Skinner v. Switzer No. 09-9000 is available here.  
SCOTUS Blog provides the following summary and document links:

Title: Skinner v. Switzer
Docket: 09-9000
Issue: Whether a convicted prisoner seeking access to biological evidence for DNA testing may assert that claim in a civil rights action under 42 U.S.C. § 1983, or whether such a claim may be asserted only in a petition for writ of habeas corpus.

Opinion below (5th Circuit)

Petition for certiorari

Brief in opposition

Petitioner’s reply

For a great procedural roadmap, see Mark W. Bennett’s Defending People blog post and his recent The Trial Warrior Blog guest post: A Triumph of Civil Litigation.

Related blog posts are available at:

The Agitator

PrisonMovement Weblog’s Hit & Run Blog

The Skeptical Juror

The StandDown Texas Project

Texas Death Penalty Abolition Blog

Hank Skinner is represented by Robert C. Owen of Owen Rountree LLP/University of Texas at Austin and Douglas G. Robinson and Maria Cruz Melendez of Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates.

H/T: Carol Leonard via Twitter: @PrisonReformMvt

Guest Post by Mark W. Bennett ( @MarkWBennett ): A Triumph of Civil Litigation

March 26, 2010

The Trial Warrior Blog is honored to have as its guest blawger, Houston criminal defense attorney Mark W. Bennett (Twitter: @MarkWBennett). He is the principal of the law firm Bennett & Bennett  and the author of the highly  popular blogs: Defending PeopleSocial Media Tyro and In Mark’s own words:

“I grew up overseas (in India, Thailand, and Germany) because my dad worked for the government. I graduated from the American Embassy School in New Delhi India, and returned to the U.S. to attend Rice University in Houston, Texas.

After graduating from Rice with a degree in Religious Studies, I attended the University of Houston Law Center. When I graduated from the University of Houston, I opened my practice as a solo criminal defense lawyer. I am proud to have never represented the government, fighting only for the rights of the accused.

In 1997 I became licensed to practice in Colorado.

While my practice is based in Houston, I represent clients all over the United States, and am available on a moment’s notice to handle federal cases anywhere in the country. I can practice in any federal district court in the country, either as a member of the court’s bar or pro hac vice (with the permission of the court).”

Mark is a 1999 graduate of the Trial Lawyers College in Dubois, Wyoming, a former vice president of the Harris County Criminal Lawyers’ Association and a member of  the Texas Criminal Defense Lawyers’ Association, the Collin County (Texas) Criminal Defense Lawyers’ Association, the Mexican-American Bar Association of Houston, the Colorado Criminal Defense Bar, and the National Association of Criminal Defense Lawyers.

Mark is also known as one of the “Four Horsemen” on Twitter. He remains vigilant in upholding the values and ideals of the legal profession by reminding lawyers that social media and professional ethics are not mutually exclusive.

A Triumph of Civil Litigation

As a criminal defense trial lawyer, I admit having had a bad attitude about both civil law and litigators. The civil courtroom is where people fight over money instead of important things like life and liberty; litigators are what people who wish they try cases call themselves. Civil litigators, therefore, are people who don’t have the gumption to either fight over things that really matter or try cases. Events this week have proven that this was a troglodytic view of civil litigation.

On Wednesday afternoon it looked like curtains for Hank Skinner. He had been sentenced to die and his lawyers had exhausted—or dropped the ball on—every direct and collateral attack available under the criminal law. They had appealed to the Texas Court of Criminal Appeals and then the U.S. Supreme Court; they had filed an untimely state writ of habeas corpus with the Texas Court of Criminal Appeals; they had filed a federal writ of habeas corpus and appealed it to the U.S. Supreme Court; they had filed another state writ of habeas corpus with the Texas Court of Criminal Appeals, dismissed as a subsequent writ.

Meanwhile, they had sought DNA testing of the hitherto-untested biological material under Chapter 64 of the Texas Code of Criminal Procedure. The State of Texas had resisted testing, and state courts had refused to order it. (Here’s a lengthy and admittedly dry overview I wrote of the procedure in Skinner’s case.)

They had also filed a long-shot civil-rights lawsuit under Section 1983 of Title 42 of the United States Code. The theory (here is the complaint) was that the State had violated Skinner’s civil rights—to due process and against cruel and unusual punishment—“by refusing to release the biological evidence for testing, and thereby preventing Plaintiff from gaining access to exculpatory evidence that could demonstrate he is not guilty of capital murder.”

Civil-rights litigation is the area of civil law most closely related to the criminal law. The plaintiffs in Section 1983 suits often start out as the involuntary participants in criminal cases.

In his civil suit Skinner sought injunctive relief:

A declaratory judgment that Plaintiff is entitled to access to the following evidence for DNA testing at Plaintiffs expense: 

a. vaginal swabs taken from Twila Busby at the time of her autopsy;
b. Twila Busby’s fingernail clippings;
c. the knife found on the front porch of the house where the murders occurred;
d. the knife found in a plastic bag in the living room of said house;
e. the dish towel also found in said plastic bag;
f. the windbreaker jacket found on the living room floor; and
g. any hairs found in Twila Busby’s hands. and

A preliminary and permanent injunction requiring Defendant to produce all the foregoing evidence to Plaintiff, pursuant to an appropriate protocol regarding chain of custody and preservation and return of the evidence. The idea is that there is untested biological material that might show that someone else committed the murders for which Skinner was condemned, that the State violates Skinner’s constitutional rights by blocking the testing of this material, and that the federal courts can cure the violation by ordering the State to allow Skinner to test the material.

Even if the Supreme Court grants certiorari and hears Mr. Skinner’s appeal, it might not grant relief on the merits; even if the Supreme Court grants relief on the merits, allowing the suit to proceed, he might not win the suit; even if he wins the suit, the results of the DNA tests might not be exculpatory; and even if the results of the DNA tests are exculpatory it is not clear that the law will offer Skinner any relief from his sentence or conviction.

In other words, Hank Skinner has a long road ahead of him. But he’s alive. And that’s thanks to his postconviction lawyers’ (Rob Owen of Austin, Texas and Douglas G. Robinson and Maria Cruz Melendez of New York) application of civil litigation to a the defense of life and liberty.

For criminal trial lawyers, this case should serve as a reminder of the Law of Requisite Variety: the more ways we have of defending a case, the greater the variety of cases we we can successfully defend. For civil litigators, this case should serve as an inspiration: take all that you know about fighting over money, and go find a way to use it to make someone more free.

UPDATE: U.S. Supreme Court Blocks Hank Skinner’s Execution!

March 24, 2010

The New York Times reports that The Supreme Court of the United States has blocked Hank Skinner’s execution. SCOTUS Blog provides an excellent overview of the petition for certiorari and temporary stay, as well as a copy of the order.

And Death Shall Have No Dominion
And death shall have no dominion.
Dead mean naked they shall be one
With the man in the wind and the west moon;
When their bones are picked clean and the clean bones gone,
They shall have stars at elbow and foot;
Though they go mad they shall be sane,
Though they sink through the sea they shall rise again;
Though lovers be lost love shall not;
And death shall have no dominion.

And death shall have no dominion.
Under the windings of the sea
They lying long shall not die windily;
Twisting on racks when sinews give way,
Strapped to a wheel, yet they shall not break;
Faith in their hands shall snap in two,
And the unicorn evils run them through;
Split all ends up they shan’t crack;
And death shall have no dominion.

And death shall have no dominion.
No more may gulls cry at their ears
Or waves break loud on the seashores;
Where blew a flower may a flower no more
Lift its head to the blows of the rain;
Though they be mad and dead as nails,
Heads of the characters hammer through daisies;
Break in the sun till the sun breaks down,
And death shall have no dominion.

                                                                                                             -Dylan Thomas

Take Action! Call Texas Gov. Perry and Demand He Order DNA Testing for Hank Skinner

March 24, 2010

Hank Skinner will be executed today at 6 pm (CST) unless Texas Governor, Rick Perry orders a stay to allow for DNA testing. For anyone who hasn’t heard about #HankSkinner, here’s the AP story: and the website:

Whether you support or oppose the death penalty, the issue is not simply factual guilt or innocence. The issue is access to justice. See also,  The Skeptical Juror’s post and The Medill Innocence Project coverage and ask yourself: why won’t Texas Governor Rick Perry grant a a 30-day stay of execution to allow for DNA testing?

According to a March 18th press release (via The Dallas Morning News):

“In response to a plea by the Innocence Project, Chromosomal Laboratories in Phoenix, Arizona has offered its accredited DNA testing services to help pursue justice. The offer was made to the Honorable Rick Perry, Governor of Texas for testing DNA evidence that could prove the innocence or guilt of Hank Skinner. Mr. Skinner is set to be executed on March 24th for the murder of his girlfriend and her two adult sons, which he was convicted of in 1995. The Innocence Project has asked that concerned individuals to urge Governor Perry to order a stay of execution until the testing can be completed.

DNA evidence in this case was never tested and the Texas’ highest criminal court has refused to intervene in the case. Mr. Skinner’s attorney claim that they have uncovered evidence that substantiates his claim that another suspect is involved and places doubt on his guilt of this crime. Mr. Skinner has always maintained his innocence and requested that DNA testing be done on potentially inculpatory evidence, in particular a windbreaker, knifes and hairs recovered from one of the victim’s hands.

While the Innocence Project does not maintain the innocence or guilt of Mr. Skinner, as they do not represent him, they point out that everything possible should be done before Mr. Skinner pays the ultimate price in what may be a colossal miscarriage of justice. When simple DNA testing may help prevent such a miscarriage, it seems implausible that the Governor and State of Texas would allow the execution to proceed. In order to help prevent this, Chromosomal Laboratories has decided to offer its services without any fees. We hope that the great State of Texas will accept this offer in the manner in which it is intended, to help promote justice.

About Chromosomal Laboratories, Inc.
Chromosomal Laboratories, Inc. is a full service DNA laboratory that specializes in providing advanced DNA testing for forensics, paternity, immigration and other relationships that can be resolved through DNA identification. Chromosomal Laboratories also provides research and development and DNA consulting services. The company is based in Phoenix, Arizona.”

Please also read the excellent blog posts by leading criminal defense trial lawyers, Brian Tannebaum, Scott H. Greenfield and Mark W. Bennett and my fellow civil trial lawyer David Sugerman.

I implore my readers to call Governor Perry at Tel: 512-463-1782 Fax: 512-463-1849 Main number: 512-463-2000 or sign the Change.Org online petition. Here is the Petition Text:

Order DNA Testing for Hank Skinner

Dear Governor Perry,

I’m writing to urge you to order a 30-day reprieve of execution for Henry W. Skinner to allow for critical DNA testing that could prove his innocence or guilt.

As you know, Skinner is scheduled to be executed on Wednesday, March 24. Since he was arrested in 1994, he has maintained his innocence of the three murders for which he was convicted. Untested biological evidence from the crime scene could definitively prove his guilt or innocence, and these tests should be conducted before going forward with Skinner’s execution. It is critical to the public’s trust in the criminal justice system that every piece of evidence is examined before the ultimate punishment is carried out.

Skinner’s request for DNA testing is not new — he has been seeking the tests for 10 years, and the evidence available is central to the identity of the perpetrator. Among the evidence Skinner is seeking to test are two knives from the crime scene, hairs from one victim’s hand and clippings of her fingernails, and a windbreaker possibly worn by an alternate suspect. Since Skinner’s trial, significant evidence of another person’s involvement in the crime has been developed. DNA testing could prove this theory or discredit it.

DNA testing has brought about a host of important reforms in the criminal justice system — helping to apprehend the perpetrators of crimes and overturning more than 250 wrongful convictions nationwide, including 40 in Texas. Under your administration, Texas had approved several important reforms based on the lessons of DNA testing and wrongful convictions.

I know you’re well aware of the power of DNA evidence in cases like Skinner’s. If his execution is allowed to go forward despite the untested evidence, it will deal a harsh blow to the trust citizens have in the Texas criminal justice system to seek truth and justice above all else.

 You have the authority to delay this execution so DNA testing can be conducted. Please don’t allow Hank Skinner to be executed when evidence exists that could tell us for sure whether he is guilty or innocent.

Thank you for your attention to this critical matter.

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