LIVINGSTON, Texas (AP) - A condemned man has asked Gov. Rick Perry to halt his execution so that DNA taken from the scene where his girlfriend and her sons were killed can be tested.
Hank Skinner doesn't deny he was in the house where Twila Jean Busby was fatally bludgeoned with an ax handle and her two adult sons were stabbed to death on New Year's Eve in 1993.
But Skinner, who is scheduled to be executed Wednesday for the killings, insists DNA testing on evidence collected at the home in the Texas Panhandle town of Pampa could spare him from the death chamber.
"This is beyond belief. It's maddening," a frustrated Skinner said last week from a tiny visiting cage outside Texas death row. "If I had done it, I'd say this is what I deserve.
"But I didn't."
The former oil field and construction worker argued at his 1995 trial and in subsequent appeals that a toxic combination of vodka and codeine left him incapacitated the night of the slayings. He contended he had neither the mental capacity nor physical strength to kill the 40-year-old Busby and her two sons, Elwin "Scooter" Caler, 22, and Randy Busby, 20.
His lawyers, pointing to what they call "troubling, unresolved questions about whether Mr. Skinner could have committed the murders," asked the U.S. Supreme Court to stop Skinner's execution so they can persuade a court his constitutional rights to due process were violated. They also asked Perry to issue a 30-day reprieve so testing can be conducted.
"To do anything less means that the state of Texas is willing to risk the execution of an innocent man," Skinner's lead attorney, University of Texas law professor Rob Owen, said after the Texas Board of Pardons and Paroles denied a clemency request 7-0 on Monday.
Skinner and his lawyers said the actual killer could have been Twila Busby's uncle, Robert Donnell, who died in 1997. Donnell, described in court documents as a "hot-tempered ex-con" known for getting more violent when he drank, attended the same New Year's Eve party Busby attended. Skinner couldn't go because he was passed out from vodka and codeine. His lawyers said Busby left the party and returned home after Donnell made crude sexual remarks to her.
Texas' notoriety as the nation's most active capital punishment state - it executed 24 prisoners last year and Skinner's would be the fifth this year - has long made it a target for death penalty opponents.
Criticism of Perry, under whom 212 people have been executed since he took office in December 2000, intensified over the past year after questions surfaced about evidence that led to the 2004 execution of convicted arson-murderer Cameron Todd Willingham. Prosecutors insist the evidence in that case was solid. But an arson expert concluded that the investigation was so flawed that its finding that the fire was deliberately set could not be supported. Just as the Texas Forensic Science Commission was to take up the expert's report, Perry replaced most members of the panel.
A decision by Perry to stop Skinner's execution to allow evidence testing would be unusual but not unprecedented. In 2004, he halted the scheduled execution of Frances Newton, who was condemned for the slayings of her husband and two young children in Houston, after the parole board recommended she be spared. New tests Newton requested on ballistics evidence failed to exonerate her and she was executed the following year.
During his first presidential campaign in 2000, then-Gov. George W. Bush gave a reprieve to prisoner Ricky McGinn, who insisted additional DNA testing would prove he didn't rape and fatally beat his 12-year-old stepdaughter. DNA tests confirmed McGinn's guilt and he was executed.
Attorneys representing Gray County District Attorney Lynn Switzer opposed Skinner's efforts to surrender evidence for testing, saying Skinner had no constitutional right to post-conviction DNA testing. Their arguments prevailed in multiple appeals in lower courts.
Switzer has declined to speak about the case because she's the defendant in Skinner's court claims. One of her predecessors, John Mann, was Skinner's trial prosecutor and has since died.
Perry's office confirmed receiving the reprieve request but took no immediate action.
Skinner's lawyers want DNA testing on vaginal swabs taken from Busby at the time of her autopsy, fingernail clippings, a knife found on the porch of Busby's house and a second knife found in a plastic bag in the house, a towel with the second knife, a jacket next to Busby's body and any hairs found in her hands that were not destroyed in previous testing.
His trial lawyer, Harold Comer, said he didn't have them tested before the trial because he feared the results would be even more incriminating.
"My answer's always been the same," Comer said last week. "Be careful what you ask for." Comer also was a former prosecutor in that county and had earlier prosecuted Skinner for car theft and assault.
Among evidence presented to jurors was the blood from two victims on Skinner's clothing,
"The clothing was tested," Comer said. "That was not too good for us."
Skinner's bloody hand prints also were found in the bedroom of Busby's slain sons and on a door leading out the back of the house. Prosecutors also suggested Skinner, who had a serious hand wound, cut his hand when a knife slipped during one of the murders. Skinner said he cut it on broken glass.
Police were summoned when the mortally wounded Caler appeared on the front porch of a neighbor's home. The bodies of his mother and half brother then were discovered in their home. Officers followed a blood trail four blocks to a trailer home of a female friend of Skinner. He was in a closet.
(Copyright 2010 by The Associated Press. All Rights Reserved.)
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