Hank Skinner has always maintained his innocence, and some of the evidence still sits there — no one has ever figured out if Hank’s DNA is on the stuff or not.  State hasn’t done it.  District Attorney, nope.  Judge, nope.  Just not done.

March 2010 – Within Hours of Skinner Being Executed, U.S. Supreme Court Grants Stay

Months passed after Skinner sued the Prosecutor, and nothing happened.  Execution Day arrived.  Pressure mounted — even the President of France (that’s right — the President.  of France.) got involved, calling the Governor of Texas asking him to intervene.  (Skinner’s wife is French.)

Within hours of the time that Skinner was set to die, the United States Supreme Court took on the part of the Cavalry and issued a stay in the case.  A stay to give them time to consider Skinner’s petition for writ of certiorari — and for the Court to decide if would hear arguments that Skinner’s should get a chance to get at the evidence to test it via a civil courtroom instead of a criminal one.

May 2010 – U.S. Supreme Court Grants Cert (Takes the Case)

This week, the Highest Court in the Land agreed to hear Skinner’s case.  Petition for Writ of Certiorari was granted.   It’s a big win for Death Row Hank Skinner. 

If he wins at the Supreme Court, then he starts through the civil courts, arguing for testing, getting the evidence for testing, and then proceeding to try and get himself freed assuming the testing works out his way. 

If he loses at the Supreme Court, then he goes back onto the Execution Schedule of the State of Texas.  And Texas Governor Perry will start getting lots of phone calls, emails, and such from lots of people.  People like the President of France.

Hank Skinner says he’s innocent.  He’s asking for DNA testing to be done.  Seems there were knives and things at the scene of the crime that hold DNA evidence — but no one has ever checked that evidence against Skinner’s DNA to confirm his claim of innocence. 

Right now, there is a request pending before the United States Supreme Court, based on this evidence issue, which would get Skinner a stay.  As this is being typed, there’s no news from Washington, D.C. that Skinner’s getting a response from them. 

There’s also a request setting on Governor Rick Perry’s desk.  Skinner is asking the Governor to give him a 30 day reprieve, so this DNA testing can be done.  Again, checking the news as this post is being typed — zip from Austin.

However, there has been one bit of news:  the Ambassador of France — yep, FRANCE — has officially asked Governor Perry to grant the reprieve or just go ahead and pardon Skinner.  It gets better.  Seems Skinner is married to a French woman, and the PRESIDENT of France has also offered his support to Mrs. Skinner, Sandrine Ageorges-Skinner.   Wow.

You’d think that if the idea that an innocent man might be fixin’ to die at the hands of a Texas executioner would be enough for Governor Perry to halt things and do some DNA testing.   Here it is, lunchtime on Execution Day and we’re hearing zip.  So, maybe the fact that an entire country is asking for a double check to be done might sway things. 

Of course, they can’t vote in November.  They’re French. 

Our thoughts and prayers go to Hank Skinner, his legal team, and his family.  May God bless you all on this terrible day.

But Skinner isn’t stopping with an appellate fight that he didn’t have adequate defense counsel — this Death Row inmate, represented by lead counsel Robert Owen of the UT School of Law Capital Punishment Center, is also challenging the prosecutor’s work during trial.

That’s right: the Death Row inmate is suing the prosecutor who tried his capital murder case. 

Henry Skinner is alleging that federal prosecutor Lynn Switzer has — right now — DNA evidence that could prove his innocence, and is refusing to release it.  Refusing, even though he’s set to die within 90 days.

According to Skinner (from his federal complaint): 

“On October 20,2009, without giving Plaintiff’s attorneys any notice or an opportunity to be heard, the 31st District Court entered an order directing that Plaintiff be executed by intravenous injection ‘at any time after the hour of 6:00 p.m. on the 24th day of February, 2010 …. Defendant’s refusal to release the biological evidence for testing violates Plaintiffs Fourteenth Amendment right to due process and his Eighth Amendment right to be free from cruel and unusual punishment. Plaintiff requests of this Court an order declaring that Defendant’s continued withholding of the evidence violates Plaintiffs constitutional rights and requiring that Defendant release the evidence to Plaintiff under a reasonable protocol regarding chain of custody and preservation of the evidence, in order that Plaintiff can have the evidence tested at his own expense.”

Henry Skinner is scheduled to die in a matter of weeks, and he has to have some comfort in the dogged efforts that his appellate lawyers are undertaking on his behalf.  Harvard Law graduate and UT Law Professor Bob Owen and his team at the UT’s Capital Punishment Clinic are working hard here — one can only hope their efforts will not be in vain.

When the news first hit that a trial court judge and the district attorney who prosecuted cases in her courtroom had had a long-standing sexual relationship, lots of folk were stunned.  And lots expected something To.Be.Done.About.This.  (See earlier post by this blog.)

Especially Charles Hood and his appellate counsel.  Hood was tried, convicted, and sentenced to death in a trial before Judge Verna Sue Holland with D.A. Tom O’Connell putting on the state’s case.   Seems pretty easy to think that Hood deserves a fair trial, right? 

Charles Dean Hood Sits on Texas’ Death Row, Knowing that During The Trial that sent him to death, the Judge and the DA were playing footsy

It isn’t even up for debate at this juncture:  trial court judge Verna Sue Holland and prosecutor Tom O’Connell, Jr. were involved romantically (yes — having an affair, a sexual relationship) while the capital murder trial of Charlie Hood was taking place.  Let’s think about that … shouldn’t this be strongly and swiftly punished? NOT allowed? 

Apparently not in Charlie Hood’s case.  This week, the high court has decided that Hood doesn’t get a fair trial because — wait for it — Hood should have brought it up earlier.  In an earlier writ.  Not making this up, folks.

What the heck?  Read what the Court decided — here’s the opinion and the dissent.

The highest state court on the subject just denied Charles Hood’s request that he have a new trial.  Here’s the Majority Opinion. Per Curiam, Not to be Published.   Not everyone agreed. Here’s the Dissenting Statement by Justice Cochran, who is joined by Justices Price and Holcomb.   The dissent sure makes sense — kudos to Justices Cochran, Price, and Holcomb.

What about the undisputed facts that the Judge and the DA BOTH LIED REPEATEDLY about having this sexual relationship? 

Here, the litany of facts listed in this week’s Dissent:

1. Judge Verla Sue Holland of the 296th Judicial District Court of Collin County, presided over Hood’s capital murder trial.
2. The elected District Attorney of Collin County, Thomas S. O’Connell, Jr., participated in the prosecution of Hood for capital murder.
3. Judge Holland and Mr. O’Connell were involved in an intimate sexual relationship prior to Hood’s capital murder trial.
4. Prior to the capital murder trial-and during the appellate and post-conviction proceedings-Judge Holland never disclosed her relationship with Mr. O’Connell to Hood.
5. During these proceedings, Mr. O’Connell never disclosed his relationship with Judge Holland to Hood.
6. Judge Holland and Mr. O’Connell took deliberate measures to ensure that their affair would remain secret. . . . Mr. O’Connell could not recall telling anyone, except possibly his sisters, about his romantic relationship with Judge Holland. Judge Holland told no one.
7. Based only on rumors of an affair, Hood’s former habeas counsel decided to look into the matter prior to filing the initial habeas application. In 1995-96, Hood’s investigator, Tena S. Francis, conducted extensive records research. She reviewed divorce records, records obtained from the Office of Elections Administration, and case files in the Collin County District Clerk’s Office. Ms. Francis interviewed members of Hood’s defense team, attorneys practicing in Collin County, and Judge Holland’s former husband, Earl Holland. She attempted to interview Judge Holland’s bailiff, but he refused to discuss the judge’s personal life with her. She contacted the State Commission on Judicial Conduct.
8. Ms. Francis was unable to develop any concrete evidence of the affair.
9. On June 27, 2005, shortly before Hood’s scheduled execution date, A. Richard Ellis, former counsel for Hood, contacted Judge Holland. She refused to comment on the allegations that she had a romantic affair with Mr. O’Connell. On the same day, Mr. Ellis contacted Mr. O’Connell. Mr. O’Connell denied that he had a romantic affair with Judge Holland.
10. On June 3, 2008, Hood received the affidavit of Matthew Goeller, a former assistant district attorney in Collin County, Texas.
11. Mr. Goeller’s affidavit marked the first time that a former employee of the District Attorney’s Office who had worked there during Mr. O’Connell’s tenure was willing to speak on the record and under oath about the relationship.
12. Mr. Goeller stated that the romantic relationship between Judge Holland and Mr. O’Connell was ongoing when Mr. Goeller began working at the District Attorney’s Office in 1987. Mr. Goeller could only assert that the relationship was “common knowledge,” not that he personally knew of any romantic interactions. 
13. In June 2008, counsel for Hood retained Toni Knox, a private investigator. She reviewed the work previously conducted by Ms. Francis and then interviewed approximately two dozen individuals in the Collin County area who seemed likely to have some knowledge of the Holland-O’Connell affair.
14. The witnesses could only attest that they had heard rumors about the affair.

Hood’s Life is at Stake –  as is the Reputation of Our State’s Criminal Justice System

A man’s life is at stake here.  Charles Hood is sentenced to die as a result of the trial overseen by Judge Holland and based upon a case presented by her lover-prosecutor.  Surely a new trial is warranted here, and the idea that a writ should have been filed sooner and therefore, he should be executed based on that secretly sexy trial, is simply a dog that won’t hunt.   

And the nation knows it, and our courts are becoming a joke.  Just go read:

Salon Magazine this week:  “The Texas Justice System operates in a parallel universe ….”

CBS News:  Whitewash

USA Today this week:  read the comments….

By the way, Verna Sue Holland served on the Texas Court of Criminal Appeals as a justice during the years 1997 - 2001 and she worked dailiy with EIGHT of the current nine justices on the CCA. 

Michael Toney Was Convicted for the Bombing Murder of 3 People – Nine Years Later, the DA Admits to Hiding Exculpatory Evidence

Last October, we posted about how the Tarrant County District Attorney held back favorable evidence in the Toney case for twenty-three (23) years.  From that post:

On Thanksgiving Day 1985, a bomb was left in a briefcase on the doorstep of a trailer in a mobile home park.

It exploded and killed three people (a 44-year-old man, his teenaged daughter, a teenaged relative) and severely wounded another (the victim’s 13 year-old son).

On October 2, 2008, another bomb of sorts hit this case: the Tarrant County District Attorney’s Office officially admitted that evidence favorable to the defense was intentionally held back — and it was important stuff.

This evidence might have cleared Michael Toney — who sat through a jury trial, was found guilty, was then sentenced to death, and who has sat on Death Row since 1999. That’s 9 years on Death Row for a man who has consistently maintained his innocence of the crime.

In January, we posted about how the Texas Attorney General was taking over the Toney matter, since the Fort Worth prosecutors had recused themselves from the Toney case.   From that post:

Fourteen (14) separate documents that threw mud all over the evidence provided at trial against Toney by his ex-wife and his ex-best-friend — and theirs was the only witness evidence against him.

What does this mean?

By recusing itself, Tarrant County is transfering prosecution of this matter to the Attorney General for the State of Texas. It’s now the AG’s office that will have to decide whether or not to spend taxpayer money on a new trial for Michael Toney.

Right now, it’s unclear whether or not they’ve got enough evidence to pursue a case against him. (There was no physical evidence, and it’s not disputed that Toney had absolutely no connection with the three victims of the 1985 Thanksgiving Day bomb.)

What Happened This Week?  The Attorney General Dropped the Case and Moved to Dismiss – Giving Michael Toney His Freedom

Having taken over the case from the Tarrant County District Attorney’s Office, the Texas Attorney General took over an ancient case from square one.  It was admittedly a burdensome task where the DA would be reviewing all the evidence — witnesses, testimony, documents, expert testing and opinion, etc. –  and then proceeding on behalf of the State of Texas in its efforts to punish Michael Toney.  (In December 2009, the Texas Court of Criminal Appeals overturned his conviction based upon the Tarrant County DA’s withholding of evidence.)

Apparently, the AG didn’t have the time to complete the job, given the November 2009 trial date, because a Motion to Dismiss was filed where the prosecution asked that the cae be dropped — and the reason given the trial court was insufficient time to review all the evidence and/or conduct adequate forensic testing before that trial deadline.   (Of course, the AG reserved its right to refile the case.)

The Attorney General filed its motion the day before it was to tell District Judge Everett Young whether or not the State would once again be seeking the death penalty.  A hearing was set for Thursday before Judge Young; the motion to dismiss automatically guts that setting.

So, last Wednesday, Michael Toney walked out of jail, a free man. 

Through his lawyers, he issued the following presser the next day:  “I have said all along that I was innocent of these charges and I know that when the Attorney General reviews the evidence, it will show that I am indeed innocent,” he said.

The Attorney General’s office is waffling on whether or not they’re going to continue pursuing Toney for this crime.  They had lingo in the dismissal motion about needing more time to get to know the case, investigate it thoroughly, and interestingly, to take advantage of the latest scientific evidence in dealing with fires, bombs, and such.

Do We See The Shadow of Cameron Todd Willingham?

Which is a good lesson to learn, given the Cameron Todd Willingham case.  You remember Cameron Todd Willingham — he was the man executed in 2004 by the State of Texas, only later to be confirmed innocent by arson experts.  Seems not only did Willingham not commit murder-by-arson (of his own kids), no one else did either.  New scientific review of the evidence revealed that the fire wasn’t arson at all.

Which isn’t to say that Willingham’s case can be analogized to Toney’s circumstances so far as to wonder if there was a bomb that went off that day long ago.  Safe to say there probably was a bomb.  However, maybe Willingham’s destiny may be to insure that there is clear and strongly supported forensic evidence before the State decides to seek to take the life of one of its citizens in the future.

The victim, Stacey Stites, was sexually assaulted and then murdered. Her boyfriend, Jimmy Fennell, was a Georgetown policeman at the time of her death.

Fennell Has History of Abusing Women

Today, he is a prison inmate, having been sentenced last September to 10 years incarceration for the kidnapping and “improper sexual activity” with a woman who was in his custody. (He’d taken her into custody after a going to the scene of an alleged domestic disturbance, where an inebriated female had been the victim of rape.)

Reed pointed to this activity by the boyfriend, as well as facts discovered by the Georgetown cops in their investigation of Fennell: apparently, Fennell had forced a woman he pulled over during a traffic stop to have sex with him; Fennell abused his ex-wife; and stalked another woman.

Four different instances of Fennell abusing women. Apparently, in an escalating pattern. Aren’t you curious what his alibi is for the murder of his girlfriend, the crime for which Reed has been convicted?

Texas Court of Criminal Appeals – So What?

So, what did the Court of Criminal Appeals say about this new evidence — evidence that a Death Row inmate might be innocent and a convicted sexual predator might be guilty? The appellate court ruled that the evidence doesn’t clear Reed and there’s nothing to show that the prosecution hid it from the defense, so nothing is going to happen here. No new trial so a factfinder can weigh this new info.

The Court of Criminal Appeals opinion is unanimous. It is also unsigned. (READ THE TEXAS CCA OPINION HERE.)

Reed Is Taking the Case to the Feds

Death Row inmate Reed isn’t giving up. He’s going over to the federal system with all this.

Let’s see what the federal appeallate court rules. You gotta wonder what those justices are going to think about an unsigned opinion coming out of Justice Sharon Keller’s court.

Investigation Discovery, a part of the Discovery Channel, is focusing upon the efforts of the Innocence Project in Dallas County because our local county has had more exonerations than any other county in the country. Surprise.

The show will follow the efforts of those seeking to use DNA testing to prove the innocence of men and women wrongfully convicted. Like Johnnie Lindsay.

It is not, however, a documentary. It is an entertainment show, and makes no efforts to claim otherwise.

“Dallas DNA” stars Dallas DA Craig Watkins

DA Craig Watkins will appear in the show. It’s a given, since he’s been involved in the exoneration of ten men in the past two years. Watkins says the show is a good thing, telling the media it will help to “make justice better by showing the good, the bad, and the ugly.”

Many are concerned about the ethics of this reality-TV show

Not everyone is happy about this new summer series. Some pretty big players have taken a stand against it.

Rob Warren, the executive director of the Center for Wrongful Convictions at Northwestern University has been quoted in USA Today as having misgivings about “Dallas DNA,” saying he finds the show “troubling” and he is quoted by Entertainment Weekly as saying that he’s concerned the show will “exploit the suffering of victims – including the wrongfully convicted – in the name of entertainment. “

Jeff Blackburn, the chief lawyer for the Innocence Project of Texas, has just come right out and said that this television show is a blatant vehicle to boost Craig Watkins’ political career. Blackburn has also reported that the Innocence Project was contacted about doing a show focusing upon its efforts, but they couldn’t reach an agreement because they were going to have to “stage things” and the Innocence Project couldn’t agree to that.

What does Watkins say in response? According to USA Today, his response is that his critics are unhappy because they couldn’t make their own media deal. According to Watkins, it’s all sour grapes.

Sour grapes? Really?

Reality television isn’t real, we all know that it’s staged and manufactured for entertainment purposes.

Many also recognize that reality television is more profitable than other forms of entertainment, because it avoids the costs of employing lots of creative folk — like writers for scripts — that more traditional shows require. In fact, reality-TV can thank rising writers’ salary demands as well as things like the recent writers’ strike for its upsurge in popularity today.

So, when revered organizations say no to reality television because they don’t want to be … well … phony with things being staged by Hollywood money, while others think this is just fine to do…. Well, doesn’t sound like sour grapes to some.

Sounds like it’s something else entirely, doesn’t it? And, people can get hurt here.

Let’s Hope Nothing Bad Happens Here

Let’s hope that doesn’t happen. Let’s hope no privilege is violated, no due process is harmed, no exploitation of innocent people happens here, in all this Hollywood production zeal. Let’s hope.

Because the only one apparently double-checking to insure that everything’s going along according to the Law is DA Watkins. He’s supposed to be insuring that privilege is protected, etc. Not a defense attorney, nope. The lead prosecutor.

Sure, there’s nothing but sour grapes in the ethical concerns voiced by people like Blackburn. Right.

Sources:

USA Today
http://www.usatoday.com/life/television/2009-04-12-reality-dna_N.htm

Entertainment Weekly
http://popwatch.ew.com/popwatch/2009/04/dna-exoneration.html

Investigation Discovery – Dallas DNA
http://investigation.discovery.com/tv/dallas-dna/dallas-dna.html

Wikipedia – Reality Television
http://en.wikipedia.org/wiki/Reality_television

It’s All About Twenty Minutes – Just 20 Minutes

Back on September 25, 2007, the United States Supreme Court announced that it was going to consider whether or not lethal injections were a constitutional way to impose the death penalty. (The federal constitution does not allow for cruel and unusual punishment … which is why we don’t have electric chairs for capital punishment anymore.)

That same day, here in Texas, attorneys for a man on death row – name of Michael Richard – worked feverishly to finalize the necessary documents to halt his execution, which was scheduled for that day, September 25, 2007.

They were drafting a Motion to Stay his execution, based upon the announcement by the U.S. Supreme Court — after all, if the U. S. Supreme Court ruled that lethal injection was unconstitutional, then it shouldn’t be used for Michael Richard.

Imagine the tension in that office that day. The hurry, the pressure. And then the computer screws up. (Of course it did – doesn’t this happen to you, too, when you’re on a deadline?)

So, these zealous defense attorneys call over to the Clerk’s office for the Texas Court of Criminal Appeals. They ask the Clerk to keep the doors open for twenty minutes — just 20 minutes — so they can file their Motion to Stay.

Justice Keller said no. And, all because of this 20 minute gap in time, Michael Richard died that day, by lethal injection. At 6 p.m.

It’s Also About Two Phone Calls

Well, after word got around that Chief Justice Keller (she is not only on the high court, she is the chief justice for the high court) had said no, and Richard had died – things began happening.

For one thing, the Commission for Judicial Conduct began a year-long investigation. And, it’s from the CJC’s results that we know a little more about what happened that day.

First, everyone at the Court of Criminal Appeals knew that the Motion for Stay was coming, because around two o’clock that afternoon, they got an email that told them it was on its way, based upon the U.S. Supreme Court’s announcement earlier that day.

The justices took a little vote amongst themselves, even before they got the Motion, and came down 5-4 that they were going to turn down the stay request when it did turn up. And then, Justice Cheryl Johnson and three other justices worked to prepare for the motion they were expecting … everyone at the court knew this motion was on its way, and that Richard was scheduled to die at six o’clock that day.

Chief Justice Keller went home to meet a repairman.

And here’s the story about the first phone call, from CJC report per the Austin American Statesman:

[Court General Counsel] Marty picked up the phone to relay the request to Keller. … It was a short conversation, but they dispute what was said. Marty recalls saying that Richard’s lawyers “wanted the court to stay open late.” Keller says Marty asked only about keeping the clerk’s office open past 5 p.m. — not the court — and that her answer reflected common practice: All clerks went home at closing time. “No,” she told Marty.

Then, the second phone call:

Shortly after 5 p.m., Keller telephoned Marty to ask whether Richard’s lawyers had filed anything. The answer was no.

It’s not clear when Justice Johnson and the other judges found out about the request for 20 minutes. And, it’s not clear why Marty routed the call to Keller, at home, instead of Justice Johnson, who was on rotation to hear the motion.

The Trial of Justice Sharon Keller

Charges have been filed against Justice Keller with the Commission for Judicial Conduct, although no trial date has been set. She’s accused of five violations of either the Texas Constitution or the Texas Code of Judicial Conduct. And her fate (exoneration, reprimand, or removal) will be decided by an as-yet-unknown specially appointed judge. It will be a public proceeding.

The Impeachment of Justice Sharon Keller

Her trial may not happen for over a year, and that’s not soon enough for Fort Worth State Representative Lon Burnam. He’s filed a resolution before the Texas House, asking that the legislative body investigate these events, and if the House finds cause for impeachment, then the Texas Senate will hold an impeachment trial.

An Odd Balance

Somehow, all this seems very, very odd. At the worst, Justice Keller loses her job. She’ll get another one.

Balance that against Michael Richard.

Sources:

New York Times
http://www.nytimes.com/2009/02/19/opinion/19thu2.html?_r=1

Austin American Statesman
http://www.statesman.com/news/content/news/stories/local/02/22/0222keller.html

Dallas Morning News
http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/022009dnmetkeller.403608f.html

Texas Court of Criminal Appeals – Justice Keller web page
http://www.cca.courts.state.tx.us/court/justice_skeller.asp