A Texas death row inmate just weeks from execution asked a federal court Monday to keep his civil rights lawsuit alive while his attorneys try to get knives and other evidence turned over for new DNA tests they claim will show he didn't kill his girlfriend and her sons nearly two decades ago.
But prosecutors who say Henry Watkins Skinner is just trying to delay his death with a merit-less request asked the court to rule in their favor and dismiss the lawsuit.
Skinner, 49, came within an hour of lethal injection last year before the U.S. Supreme Court stepped in and now has a Nov. 9 execution date. His lawsuit claims the state violated his civil rights by withholding access to the evidence he wants tested. Monday's hearing came after the U.S. Supreme Court ruled in March that Skinner could ask for the untested evidence, but left unresolved whether the district attorney had to surrender those items. A state court will make that decision.
Skinner's attorneys asked U.S. Magistrate Judge Clinton E. Averitte to recommend the civil rights suit not be dismissed until the state court acts. A final ruling on the lawsuit will be issued by U.S. District Judge Mary Lou Robinson in Amarillo.
The request for DNA testing is the third from Skinner but the first since a state law about evidence testing took effect Sept. 1. The new law allows DNA testing of evidence even if the offender chose not to seek testing before trial.
Rob Owen, one of Skinner's attorneys, said in an emailed statement that lawmakers intended the new law "to reach" Skinner.
"The state should stop wasting taxpayer money fighting the DNA testing in Mr. Skinner's case," Owen wrote. "At a minimum they should drop their insistence on executing Mr. Skinner on November 9 so that the courts have adequate time to settle this issue."
Prosecutors maintain the new law doesn't apply to Skinner, his claims about the evidence aren't new and other courts have already decided the issue. Skinner "still has not demonstrated" how additional DNA testing will prove his innocence, attorney general's spokeswoman Lauren Bean said in an email. She accused him of "resorting to gamesmanship."
"Because Skinner has not met the standards required by law and does not seek to test newly discovered evidence, the Court should deny his claims and prevent Skinner from further delaying justice for the victims' families," Bean wrote.
Skinner was sentenced to death for the 1993 deaths of his girlfriend, 40-year-old Twila Busby, and her sons Elwin "Scooter" Caler, 22, and Randy Busby, 20. The victims were strangled, beaten or stabbed on New Year's Eve at their home in Pampa in the Texas Panhandle.
About three hours after their bodies were discovered, police found Skinner hiding in a closet in the home of a woman he knew. Tests showed that blood of at least two victims was on him, and authorities said a trail of blood led police from the bodies to his hiding place a few blocks away.
Skinner has acknowledged being inside the house where the killings took place but has insisted he couldn't be the murderer because he was passed out on a couch from a mix of vodka and codeine. In a hand-written Aug. 31 affidavit, Skinner told the court: "I am actually, factually and totally, legally and any other definition, innocent of this crime."
However, documents the attorney general's office filed in court Monday said Skinner offered to plead guilty to first-degree murder before his 1995 trial in exchange for a life sentence. Plea negotiations often are kept confidential, but Skinner's federal appeal on ineffective counsel claims waived that privilege, the new document said.
The evidence now being sought was not tested at the time of Skinner's trial because his lawyer feared the results would hurt his case. But his attorneys now argue that forensic DNA testing "has a strong likelihood of confirming Mr. Skinner's claim."
The untested evidence includes vaginal swabs taken from Busby during an autopsy, fingernail clippings, a knife found on the porch of Busby's house, a second knife found in a plastic bag in the house, a towel with the second knife and a jacket next to Busby's body.
Skinner contends that Caler, who had several stab wounds, likely bled on him while trying to roust him from his stupor. Skinner has said the woman's blood likely got on his clothes because they were nearby as she was being bludgeoned with a pickax handle. He and his attorneys point to the woman's now-deceased uncle, Robert Donnell, as the possible killer.