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.
