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Justices side with inmate on death row

Evidence testing at issue in case

By Michael Graczyk
Associated Press / March 8, 2011

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HOUSTON — The US Supreme Court ruled yesterday for a Texas inmate sentenced to die for killing his girlfriend and her two adult sons nearly two decades ago, saying the man who came within about an hour of being executed last year can ask to test crime-scene evidence he says may show he is innocent.

By its 6-to-3 ruling, the court ensured that Hank Skinner won’t be put to death any time soon while his legal case continues. But the decision doesn’t necessarily result in Skinner winning the right to perform genetic testing on evidence found at the scene of the triple slayings in a home in Pampa in the Texas Panhandle on New Year’s Eve 1993. Such a request would still have to go through the courts.

Edward Dawson, an attorney for District Attorney Lynn Switzer, whose office prosecuted Skinner’s capital murder case, said he was disappointed with the ruling but described it as “a pretty narrow decision on the procedural point.’’

“We think it left open the question of whether or not Skinner can actually get access to the evidence,’’ Dawson said. “I think there are some strong arguments that he ultimately may not be able to.’’

Like nearly every other state, Texas has a law that allows prisoners to have DNA testing on evidence long after their conviction. Skinner tried and failed twice to invoke the state law to get at the evidence. He then filed the federal lawsuit, saying that the state had deprived him of his rights.

Prosecutors have opposed the testing request, contending it wouldn’t prove anything, and branded the civil rights action an effort by Skinner to delay his punishment. He’s been on death row since 1995.

Justice Ruth Bader Ginsburg, writing for the majority, said inmates may use a federal civil rights law to seek DNA testing that was not performed before their conviction. The case now will be returned to a federal district court to consider whether Skinner’s claim has any merit.

Skinner, 48, was convicted of killing his girlfriend, Twila Busby, 40, and her two sons, Elwin “Scooter’’ Caler, 22, and Randy Busby, 20.

About three hours after their bodies were discovered, police found Skinner hiding in a closet in the home of a woman he knew. Tests showed blood of at least two of the victims was on him and a trail of blood led police from the bodies to his hiding place a few blocks away.

But other evidence was not tested at the time of Skinner’s trial, on the advice of his lawyer.

In other cases yesterday, the court:

■Rejected the government’s broad use of an exemption in the federal Freedom of Information Act to withhold documents from the public, ruling for a Washington state resident who wants Navy maps relating to its main West Coast ammunition dump. The court, by an 8-to-1 vote written by Justice Elena Kagan, threw out an appeals court ruling that backed the Navy’s decision to withhold maps showing the extent of damage expected from an explosion at the ammunition dump near Port Townsend in western Washington.

■Said a convicted Rhode Island criminal’s decision to ask for leniency can be used to delay the deadline inmates have to appeal to the federal courts. The high court unanimously ruled for Khalil Kholi, who wants to appeal his 1993 conviction for sexual assault against two girls. In 1996, Kholi’s request for a sentence reduction in Rhode Island courts was denied. After his state appeals were finished, he appealed to federal court in 2007. A federal judge threw out his appeal, saying the deadline had passed because the request for sentence reduction cannot be used to ask for an extension. But a federal appeals court overturned that ruling, and the high court agreed.

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