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.
