Condemned killer of 3 seeks DNA exoneration

LIVINGSTON, TX "We were so in tune with each other," he says. "We didn't even need to talk. There never was a cross word between us."

So there was no reason, Skinner says, for him to explode in rage more than 16 years ago on New Year's Eve, swinging an ax handle 14 times to fatally batter the 40-year-old woman he first met at an Alcoholics Anonymous meeting, then stab to death her two grown sons at their home in Pampa in the Texas Panhandle.

Skinner, 47, acknowledged being at the slaying scene that night but says he was on a couch, passed out and sick from alcohol and codeine use.

Skinner was set for lethal injection Wednesday for the slayings. He and his lawyers were seeking a delay to challenge the sufficiency of evidence against him.

"Mr. Skinner is not the person who should have been convicted of the murders of Twila Busby and her sons," said lead attorney Rob Owen, a University of Texas law professor and co-director of the school's Capital Punishment Clinic. "Equally disturbing, however, is that there is DNA evidence in this case that has never been tested and, if tested, could -- and Mr. Skinner adamantly alleges would -- establish his innocence."

Prosecutors have opposed new testing, calling it a request Skinner "has already made and been denied" and noting that state and federal appeals courts have repeatedly refused to halt the punishment.

Prosecutors also argued Skinner "has already been found guilty at a fair trial" and there is no legal entitlement to post-conviction DNA evidence testing.

"There was ample evidence that Skinner was the murderer," the 5th U.S. Circuit Court of Appeals said in one ruling.

The district attorney who prosecuted Skinner, John Mann, has died. The current D.A., Lynn Switzer, declined last week to comment, citing her involvement in litigation of Skinner's case.

Skinner's scheduled punishment in the nation's busiest capital punishment state -- 24 Texas inmates were executed last year and four already in 2010 -- comes amid contentions from death penalty opponents that Texas already has used shaky evidence to execute at least one innocent man, convicted arson murderer Cameron Todd Willingham in 2004. Prosecutors in that case say the outcome was solid although an arson finding critical to Willingham's conviction is to be reviewed by a state commission.

With Skinner's execution date near, his attorneys went to the U.S. Supreme Court with their request for new DNA testing and formally asked Gov. Rick Perry for a reprieve. Last week, they lost a bid before the Texas Court of Criminal Appeals to return Skinner's case to the trial court for review.

In 1995, a jury in Fort Worth, where Skinner's trial was moved, took about three hours to decide Skinner was guilty, then deliberated less than two hours before deciding he should die.

"They're trying to kill me for this," Skinner said recently from a tiny visiting cage outside death row at the Texas Department of Criminal Justice Polunsky Unit. "It's so frustrating. I tell my lawyers I'm living in a bad rerun of 'The Twilight Zone."'

Skinner's jury heard evidence he was in the house where Busby and her two sons, Elwin "Scooter" Caler, 22, and Randy Busby, 20, were killed and that he had blood of at least two of the victims on his clothing. There also was testimony that Skinner, a former construction and oilfield worker, walked to a nearby trailer home and told a woman there he might have kicked Twila Busby to death. Busby's body, however, bore no evidence of being kicked and the woman who testified, in an affidavit, has since recanted portions of her trial testimony.

Police were summoned when Caler, suffering multiple stab wounds, appeared on the front porch of a neighbor's home. He would die later. The bodies of his mother and half brother were discovered in their home. Officers followed a blood trail to the trailer home four blocks away and found Skinner three hours later, in a closet. His hand was cut and his clothes were spattered with blood from Caler and Busby.

Skinner explained later the mortally wounded Caler bled on him as he tried to roust him from his drunken stupor. The couch where he was passed out was just a few feet from where Twila Busby was bludgeoned, he said, accounting for her blood. His hand wound occurred when he fell on broken glass, he said.

Prosecutors, however, contended that Skinner's hand slipped down the knife when he stabbed Randy Busby and struck the man's shoulder blade. A defense blood spatter witness at Skinner's trial acknowledged the stains on his clothing were inconsistent with someone merely laying on a sofa, according to court documents.

Skinner and his lawyers claimed the actual killer could have been Twila Busby's uncle, Robert Donnell. Donnell, described in court documents as a "hot-tempered ex-con" who became more violent when he drank and kept a knife in his car, attended the same New Year's Eve party with Busby the night of the slayings. Skinner didn't go because he was nearly comatose from drugs and booze. Busby left the party and returned home after Donnell made crude remarks and unwanted passes at her, Skinner's attorneys said.

Donnell later died in a 1997 traffic wreck.

Skinner's lawyers specifically would like 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.

"There are disturbing and unresolved questions about the accuracy of the jury's verdict," Skinner's lawyers told the Supreme Court.

The issue of new DNA testing has surrounded Skinner's case for more than a decade, gaining traction in 1999 after a team of journalism students from the Medill Innocence Project at Northwestern University in Illinois began examining the evidence.

Skinner's trial attorney, Harold Comer, also came under scrutiny. Comer was a former Gray County district attorney who left office amid admissions he improperly borrowed $10,000 from a drug seizure fund.

Comer previously had prosecuted Skinner for car theft and assault. But as his defense lawyer, Comer couldn't object when prosecutors used those convictions as proof Skinner would be a future danger, one of the questions jurors must decide when deliberating a death sentence.

Comer did object to what he believed was selective DNA testing by prosecutors but said later at an evidentiary hearing he didn't seek testing on the items now in question because the items already tested had damaged his case and he didn't want to risk uncovering even more damaging evidence.

"It would be foolhardy to insist on further testing because we felt it was possible and even probable it would be the same result -- incriminating," Comer said last week. "These pundits that go around and fault us for not insisting on testing just don't understand how things work.

"We certainly would have been ineffective and rightfully so if we had insisted on more testing and if it were bad for us when we already knew."

Comer, who now supports the call for additional DNA tests, said the strategic decision at trial wasn't taken lightly and was made after much thought.

"You've got a responsibility for a man's life," he said. "I would make the same decision with the same circumstances again."

Prison records show Skinner received a five-year term for car theft in 1988 in Gray County, was paroled a year and a half later to Harris County, but was returned to prison six months later for violating his parole. He was paroled again in late 1989 and discharged in May 1993, seven months before the triple slaying.

In more recent times, prison officials said Skinner was among numerous Texas death row inmates they found with contraband cell phones. He has denied any wrongdoing.

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