U.S. Supreme Court to hear Texas Death Row inmate's case Posted Monday, May. 24, 2010 BY DAVE MONTGOMERY dmontgomery@star-telegram.com AUSTIN -- A Texas Death Row inmate who came within minutes of being executed for a triple murder in the Panhandle is now at the center of a potentially far-reaching Supreme Court case on DNA testing. Hank Skinner, who was eating his last meal when the justices stayed his execution in March, says a Texas prosecutor is violating his civil rights by not turning over DNA evidence that Skinner says will prove his innocence. The high court agreed Monday to hear the case. Skinner was convicted and sentenced to death in 1995 for killing his live-in girlfriend, Twila Busby, and her two mentally impaired adult sons. Skinner said he was passed out on the couch the night of the slayings after consuming alcohol and Xanax and could not have committed the murders. In hearing Skinner's case, the nine justices could decide whether prisoners are empowered to file federal civil-right lawsuits to force DNA testing after their convictions. The decision could give hundreds of prisoners a powerful legal avenue involving DNA evidence, legal experts say. "It's extremely significant for the Supreme Court to hear this case," said Cory Session of Fort Worth, policy director of the Innocence Project of Texas. "That gives us a lot of hope for other cases down the pike." Session is the brother of Tim Cole, who died in prison for a sexual assault he didn't commit. The actual assailant confessed to the crime, and Cole was ultimately cleared by DNA testimony and exonerated. Gov. Rick Perry granted Cole a posthumous pardon this year. Skinner's case received national attention after the Medill Innocence Project at Chicago's Northwestern University began investigating and interviewed a star witness who recanted her testimony. Skinner said the real killer was Busby's uncle, Robert Donnell, who had a violent streak and made unwanted sexual advances toward Busby, according to media reports. Donnell was killed in a car wreck in 1997. Skinner wants Gray County District Attorney Lynn Switzer to permit DNA testing on evidence that wasn't used at the trial, including vaginal swabs, two bloody knives and hair found in Busby's hand. Skinner's original attorney reportedly opted against the DNA tests because he was afraid that Skinner could have been implicated. Skinner is now represented by the Capital Punishment Center at the University of Texas. Gray's office says Skinner had ample opportunity to introduce the DNA evidence before his conviction and is now waging an 11th-hour battle to stall his execution. Then-Gray County District Attorney John Mann introduced DNA testing at the trial showing that bloodstains from Skinner's shirt were consistent with Busby's DNA. "If defendants are allowed to 'game the system,' then we will never be able to rely on the finality of the judgments entered in their cases," Switzer said in a statement. The case, she said, poses "ramifications for district attorneys all across the state, especially where the defendant waits so long before even filing a lawsuit." David Protess, director of the Medill Innocence Project, said the Supreme Court case centers on whether federal civil-rights law applies to a prisoner's request to seek DNA testing of biological evidence. "The court has not ruled on that issue yet," he said. "It will set a precedent that will affect potentially hundreds of prisoners." A ruling favorable to Skinner would validate his claim that authorities violated his federal civil rights by denying him the right to DNA testing, Protess said. "The argument would be that federal civil rights should have superseded Texas law," he said. Amarillo attorney Mark White, who represents Switzer, said he was "a little surprised" that the court decided to hear the case. "I anticipate that the Supreme Court can certainly use this as an opportunity to tell the rest of the country that our process is adequate," he said. DAVE MONTGOMERY IS CHIEF OF THE STAR-TELEGRAM'S AUSTIN BUREAU. 512-476-4294

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