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High court asked to give death row inmate chance to prove innocence

By Bill Mears, CNN Supreme Court Producer
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Death row inmate wants DNA test
  • Henry Skinner wants the Supreme Court to order new testing of evidence
  • His scheduled March 24 execution was delayed so the court could hear his appeal
  • Twila Busby and her two sons were brutally killed on New Years Eve 1993.

Pampa, Texas (CNN) -- Twila Busby and her two sons died horribly in their little cream-colored house. No one who has examined this case in the nearly 17 years since the triple murders will doubt that. But lingering questions of guilt and innocence, of changing alibis, and the fairness of a criminal trial have now captured the attention of the Supreme Court.

The justices will decide this week whether a convicted killer on Texas death row deserves another chance to prove he did not commit the crime.

"All the district attorney has got to do is turn over the evidence and test it, and let the chips fall where they may," Henry "Hank" Skinner told CNN in an exclusive death row interview. "If I'm innocent I go home. If I'm guilty I die. What's so hard about that?"

Members of the victims' family respond that their pain has only grown as this inmate, in their minds, continues to delay justice through endless appeals.

"It's been hard, not having your family around on holidays, not having any family left to have a holiday, but we do the best we can," said Lisa Busby, the surviving daughter. Her wish for Skinner: "They should kill him."

At issue is whether capital inmates have a basic federal civil right to have forensic evidence reviewed late in the appeal process.

Skinner and his supporters say if he loses this appeal, an innocent man could be put to death. The state says the prisoner is "gaming" the system and is not entitled to testing of evidence that was not analyzed before his 1995 trial.

The justices issued a stay just 40 minutes before Skinner's scheduled March 24 execution. The court has now scheduled oral arguments for Wednesday, to decide the larger constitutional questions. Federal appeals courts have split on the issue in recent years.

Skinner, 48, has made what has become informally called a claim of "actual innocence," and has sued authorities to conduct more thorough DNA testing of evidence gathered at the crime scene.

"There has been a lot more public attention as the technology evolves about getting DNA tests," said Thomas Goldstein, a legal analyst and founder of "And so far, the Supreme Court has narrowly closed the door to challenging your criminal conviction directly based on the idea: 'Hey, there's evidence I now want tested.'

"This is a different lawsuit. It says: 'I'm going to file a lawsuit for my civil rights to be able to prove my innocence.' The question will be: Will that kind of be a backdoor way to getting at this critical question of whether someone might be up on death row or life in prison forever for a crime they may not have committed."

The crime

Pampa has the unassuming, comfortable feel of a mid-sized American town. Smack in the middle of the Texas Panhandle's high prairie and about an hour east of Amarillo, its buildings are slung low and wide, with a lonely downtown that has perhaps seen better days. On New Year's Eve 1993, the Busby murders shocked this community, and people here still recall vivid details.

Busby was strangled and bludgeoned more than a dozen times with an ax handle found a few feet from the body. Skinner was, by his own account, a few feet away too, when the crimes occurred, unharmed but passed out on the couch from a combination of vodka and codeine, physically unable -- he claims -- to commit the crimes.

Found stabbed to death were Elwin "Scooter" Caler, 22, and Randy Busby, 20, both of whom were mentally challenged.

The Busby family and prosecutors wonder how Skinner -- if he were truly innocent -- managed to escape unscathed in the home while three people were killed just steps away.

Officials maintain forensic evidence gathered at the scene and witness statements point to Skinner.

A female friend of Skinner who lived four blocks away testified at Skinner's trial that he walked to her mobile home and told her that he may have kicked Twila Busby to death, although evidence did not show she had been kicked. The neighbor has since recanted parts of her testimony.

In a taped police interview the day after murder -- obtained by CNN -- Skinner admits he and Busby were fighting violently just hours before the murders with the ax handle that later was found embedded with blood and hair of the victim.

"I got the stick away from her again" says a long-haired Skinner. "And I think I hit her with it. I'm not sure. ... I don't remember anything other than that."

He told authorities 28 times in a 22-minute interrogation he did not recall particular events, claiming he was in an "alcoholic blackout" much of the time.

Skinner also testified a dying Elwin woke him from his stupor, and he then discovered the two other victims. Elwin later died on the porch of a neighbor.

Authorities had followed a blood trail from the crime scene to the female friend's home and found Skinner in the closet, authorities said. He was "wearing heavily blood-stained jeans and socks and bearing a gash on the palm of his right hand," according to the Texas attorney general's summary of the case.

In addition, authorities said cuts on Skinner's hand came from the knife used to stab the men, one of whom was lying in his bed. The onetime oil field worker said he cut it on glass. Some DNA testing was done that implicated Skinner, but not on the items he now wants examined, including vaginal swabs from Busby, fingernail clippings, two knives, and items of clothing.

"DNA testing showed that blood on the shirt Skinner was wearing at the time of his arrest was Twila's blood, and blood on Skinner's jeans was a mixture of blood from Elwin and Twila," state officials said.

District Attorney Lynn Switzer was sued by Skinner. Her attorney, who will argue before the justices, says the state has given Skinner plenty of chances to plead his case.

"There has to be some finality," said Gregory Coleman. "I think we all understand that the interest in finality shouldn't be so strong that it overcomes the opportunity for somebody to prove that they are actually innocent if there is some chance that the DNA testing would do that, and that's what this statute is intended to do. Mr. Skinner's problem is that there is simply no chance that this testing would actually prove him innocent."

Skinner's attorney, Rob Owen, countered that "the victims' injuries show that whoever murdered them must have possessed considerable strength, balance and coordination."

An expert testified at trial that Skinner would have been too intoxicated to commit the crimes, and a review of the evidence suggests that Skinner might have been even more intoxicated than initially thought, Owen said.

Skinner argues none of his blood was found on the victims, despite the cut hand. Hair and other blood samples from the crime scene were tested post-trial, in 2001. The inmate argues the results revealed the possibility of another as-yet-unidentified person at the crime scene.

"The underlying electronic data from that DNA test ... doesn't match me," Skinner said. "It's the blood and hair of an unknown male individual."

The state said the tests were inconclusive, but Skinner's legal team says the state abruptly stopped further testing. Several labs have offered to conduct the additional forensic examinations Skinner demands, for free. The state has repeatedly refused that offer.

Texas Gov. Rick Perry had received more than 10,000 letters from Skinner's advocates urging a new trial, according to the Innocence Project and, whose members and supporters have sent the letters through their Web sites.

Evidence presented at trial by the defense suggested that Twila Busby's uncle, Robert Donnell, who is now dead, could have been the killer. At a New Year's Eve party she attended for a short time on the last night of her life, Donnell stalked her, making crude sexual remarks, according to trial testimony.

A male friend who drove her home from the party testified she was "fidgety and worried" and that Donnell was no longer at the party when he returned. The jury ultimately rejected the theory.

Two voices, two stories

Lisa Busby was just 18 at the time of the crimes. She, fortunately, was staying at her grandparent's home that New Year's Eve, and believes if not for that, she also would have died that night.

Living now with relatives a few blocks from the crime scene on Campbell Avenue, Lisa Busby and her family remain convinced Skinner was the killer, and have nothing but contempt for him and his efforts to, as they see it, escape justice.

But in a major break with state and local officials, Lisa Busby wants the DNA testing done, if nothing else than to speed up what she hopes will be Skinner's day with justice.

"Test the DNA, execute him, and get it over with," she told CNN. "He's guilty in my mind."

She wonders why the district attorney is so reluctant to test the remaining forensic material.

Her uncle Dave Brito says the whole family is frustrated. "Absolutely, from two sides. From the law and from, well, from Hank and his case."

Inmate Number 999143 is eager to chat at the Polunsky Correctional Unit in Polk County, where about 330 men sit on death row. Separated from his interviewer by glass and talking by two-way phone, Henry Watkins Skinner calls the past 17 years in prison "a living hell."

Gone is much of his hair, but not the thick Southern accent. He is well-versed in the legal minutiae of his case, and is adamant in his claim of innocence: "I didn't kill anybody." He is equally aware his fate may ultimately lie in the hands of nine justices.

"They are the Supreme Court, they can do what ever it is they want to do," he said. "If they rule against me I die. ... I've been here 17 years and I'm ready for anything."

The legal and personal stakes

Texas has executed more prisoners than any state since 1976, when the high court allowed executions to resume. Sixteen condemned inmates have died by lethal injection at the state's Hunstville prison since January, and one is scheduled for Thursday.

Recently, questions have swirled in Texas regarding the 2004 execution of Cameron Todd Willingham, sentenced for a fire that killed his three daughters. There are claims he was not guilty of the deaths.

On March 19, Perry issued a posthumous pardon for Timothy Cole, who was serving a 25-year sentence for aggravated sexual assault when he died in prison from an asthma attack. After his death, DNA tests established his innocence, and another man confessed to the crime.

Death penalty opponents frame the Skinner case in stark terms, and say capital inmates nationwide will be affected by what the high court does to him.

"Most Americans don't know that the U.S. Supreme Court has never actually come out and said that it's unconstitutional or illegal to execute somebody who is innocent of any crime," said Nina Morrison, a senior attorney with the Innocence Project, which is helping appeal the sentence. "And that's a state of affairs that many people, with good reason, find doesn't make a lot of sense."

Her groups says 258 people nationally been exonerated through post-conviction testing -- people who were found guilty by a unanimous jury and sent to prison or death row, but were later exonerated or proven innocent by DNA.

Skinner says he wants to join that group. "I'm looking forward to suing this district attorney, forcing her to turn over the evidence so I can prove my innocence and get out of here."

But Dave Brito says his orphaned niece deserve closure and some peace of mind.

"Execute him. Go ahead and get this over with," he said. "I believe he's guilty; most people believe he's guilty. But he's been playing the system, and by him playing the system, it's been a hardship on the family, especially on Lisa, over and over and over again."

The case is Skinner v. Switzer (09-9000). A ruling is expected in a few months.

CNN National Correspondent Kate Bolduan contributed to this report.