By a 7-0 vote, the Texas Board of Pardons and Paroles rejected Hank Skinner’s request for a stay of execution so that DNA evidence related to the case can be tested.
In its own defense, the Board could assert that the circumstantial case against Skinner is strong. So it is. But appearances can be deceiving, especially when public officials repeatedly refuse to balance the wisdom of prosecutors and jurors against scientific evidence.
Ambiguity is the great fear in the Skinner case. What if the evidence is tested and it simply muddies the waters? Would it not appear that the State of Texas is executing a possibly innocent man? Much better to passively accept the verdict cranked out by the justice system.
In the vast majority of criminal cases, the guilt of the defendant isn’t in question. Ninety percent of the time the legal wrangling, such as it is, centers on finding a charge and a sentence that is acceptable to both the prosecution and the defense. The state could make its case to a jury, but trials are expensive and time-consuming and that gives defense attorneys some bargaining power. Not much, but a little.
But in a sizable minority of criminal cases the facts are ambiguous and investigators and prosecutors can’t find a conclusive answer to the who-dun-it question. The best they can come up with is an educated guess. If we are talking about a crime that creates a gruesome crime scene and multiple deaths prosecutors become desperate for certainty. If no one qualifies as a credible suspect you follow the trail of evidence as far as it goes and give up.
But what if the crime is horrific and you’ve got a guy who might be guilty? Then things get really dicey.
Take Hank Skinner, for example. He was at the crime scene. His clothing was stained with blood. Three innocent people are dead. He looks guilty as hell. You know you could sell the case to a jury, so, when the defendant refuses to confess, you proceed to trial. The defense attorney doesn’t ask to have the evidence tested so no testing is done.
Seventeen years pass and the date with the needle comes around. The defendant still refuses to confess. New defense counsel is asking to have the evidence tested. The Texas Court of Criminal Appeals turns thumbs down. The Board of Pardons and Paroles follows suit. This is Texas, after all.
Are we supposed to shrug in stoic resignation and move on?
Thus far I have been talking about earnest, well-intentioned prosecutors making hard decisions in tough cases. What about district attorneys and assistant US attorneys who are so jaded and cynical they no longer care about the guilt-innocence issue?
If jurors actually held the prosecution to the high burden of proof beyond a reasonable doubt, prosecutorial cynicism wouldn’t be such a serious problem. But in ambiguous cases, jurors routinely side with the prosecutor. Prosecutors stand on the side of police officers; defense attorneys defend the bad guys. Prosecutors represent the authority of the state; defense attorneys are paid to help criminals escape the consequences of their bad acts. When you invest several days (several weeks if the defendant has deep pockets) listening to unspeakably tedious testimony, you want something to show for it. Given these realities, an ambiguous case will almost always go into the win column for the prosecutor.
Given these realities, it is no surprise that Hank Skinner was found guilty at trial. The state’s case against Skinner is far stronger than the case against Curtis Flowers, for instance, or the ridiculous prosecutions of Kelvin Kaigler and Jace Washington in St. Tammany Parish. When all the facts are on the table, you wonder why cases this weak are ever prosecuted.
But the Skinner case is riddled with untested DNA evidence that, if tested, would likely suggest guilt or innocence. Why then has the criminal justice system refused to run the tests?
Only Governor Perry and the federal Supreme Court can now prevent tomorrow’s scheduled execution of Hank Skinner. If Perry and the nation’s highest court refuse to intervene it will underscore the impression that our system of justice is badly broken and most public officials like it that way.