|
DNA testing works, but
not if we fail to utilize it
By SAM MILLSAP
March 9, 2010, 9:24PM
Last week, Gov. Rick Perry granted the state's
first posthumous pardon to a man who was innocent of a crime for
which he had spent 13 years in prison. DNA testing cleared Tim
Cole of a rape he did not commit, but unfortunately it came too
late — nine years after he had died in prison. The state must do
everything it can to prevent this kind of tragedy from happening
again.
On March 24, Texas plans to execute Henry
Watkins Skinner even though untested DNA evidence could show
we've got the wrong man. DNA testing could resolve doubts about
Skinner's guilt in the 1993 Pampa slayings of his girlfriend and
her two sons, but the state inexplicably has blocked that
testing for more than a decade.
I'm not an advocate for Hank Skinner. I'm an
advocate for the truth. If DNA tests could remove the
uncertainty about Skinner's guilt — one way or the other —
there's not a good reason in the world not to do it.
Some taxpayers may grumble at spending the
public's money on DNA tests for individuals on death row. That
argument doesn't hold water in Skinner's case. In 2000, the
investigative journalists at the Medill Innocence Project
offered to pay for the DNA tests. Ten years later, that offer
still stands. There may be other objections to testing the
evidence, but they don't outweigh the potential horror of
executing an innocent man.
It is cases like Skinner's that ended my
lifelong support for the death penalty. Any system driven by the
decisions of human beings will produce mistakes. This is true
even when everyone — judges, prosecutors and defense attorneys —
is acting in good faith and working as hard as he or she can to
get it right.
Tim Cole is only a recent example of the
frailties in our criminal justice system. Several years ago,
this newspaper argued persuasively that Ruben Cantu, a defendant
I prosecuted who was put to death in 1993, may well have been
innocent. Twenty years after Cantu's trial, my star witness
recanted his trial testimony. Many people consider his
recantation credible because he had nothing to gain by reversing
his position except a whole lot of trouble.
That case brought home to me, in a way that
nothing else could have, that the system we trust to determine
who may live and who must die simply doesn't work in all cases.
Other investigative stories have revealed that Texans Carlos
DeLuna, who was executed in 1989, and Cameron Todd Willingham,
executed in 2004, were almost certainly innocent.
Since 1973, 139 people in 26 states have been
released from death row based on evidence of their innocence.
Eleven of them were in Texas. Many of these people were freed
because of DNA evidence. But DNA testing works only if we use
it.
Skinner's execution date is just a few days
away, but key pieces of evidence have never been tested,
including two knives, one of which might be the murder weapon; a
man's windbreaker, which had blood, sweat and hair on it and was
found next to the victim's body; the victim's fingernails, which
may have DNA evidence under them; and samples from a rape kit.
Skinner has steadfastly maintained his
innocence, but his trial counsel did not seek DNA testing. His
attorney also failed fully to investigate the potential
involvement of another suspect. That man, a relative of
Skinner's girlfriend, had a violent criminal history and an
incestuous relationship with the victim. He had been seen
stalking her at a party on the night of the murder and left the
party shortly after she did. His whereabouts for the rest of the
night remain a mystery.
This individual also wore a windbreaker like
the one found at the murder scene. And the day after the crime,
a neighbor says, he frantically scrubbed the interior of his
pickup truck, removed the rubber floor mats and replaced the
carpeting. DNA evidence may or may not implicate this alternate
suspect, but we'll never be certain without testing.
Attorneys for Skinner have filed an appeal
with the U.S. Supreme Court asking the court to stop Skinner's
execution in order to decide whether prisoners can use the Civil
Rights Act to compel post-conviction DNA testing. That's
Skinner's last chance, and I hope the court intervenes. But
frankly, I'd rather see Texas clean up its own house on this
one. Before we send a man to his death, shouldn't we do
everything in our power to be certain of his guilt?
Millsap, who served as Bexar County district
attorney from 1982 to 1987, has practiced law in San Antonio for
35 years.
|
