Hank Skinner once came within an hour of execution for the 1993 killings of Twila Busby and her sons in Pampa, about 50 miles northeast of Amarillo. The Texas Court of Criminal Appeals last stayed his execution in November.
Skinner's attorneys have argued that several pieces of untested evidence should be examined for DNA. Until this month, the Texas attorney general's office had dismissed requests for testing as a stalling tactic. The attorney general reversed its objection to testing in a one-paragraph advisory filed June 1, weeks after the criminal appeals court heard arguments on the proposed testing.
On Tuesday, both sides filed a joint motion asking the court to send the case back to a lower court to make way for testing. The motion included a proposed order with 40 items that would eventually be tested.
"The parties have reached an accord intended to resolve the dispute pending before this Court, which makes it necessary for the Court to address the issues presented by Mr. Skinner's appeal," the motion said.
The list of items includes vaginal swabs taken from Busby during her autopsy, two knives found in and around the Busby home and underwear from her dead sons, Elwin Caler and Randy Busby. All of the items listed are already in the custody of authorities, according to the court filing.
Authorities say they cannot locate another piece of evidence that Skinner's backers see as crucial -- a windbreaker found at the crime scene that may have resembled one worn by a possible alternate suspect, Busby's now-deceased uncle. The proposed order submitted Tuesday said authorities would continue to search for the jacket after the order was approved.
The state said in the motion it had conducted a "thorough search" and would offer the chance to call witnesses at a court hearing if the jacket can't be found.
"It is difficult to understand how the State has managed to maintain custody of items as small as fingernail clippings, while apparently losing something as large as a man's windbreaker jacket," Rob Owen, an attorney for Skinner, said in a statement. "To date, the State has offered no explanation for its failure to safeguard the evidence in this case."
Owen said he was pleased by the testing agreement, but that the missing jacket is a matter of "grave concern."
Skinner, 50, has acknowledged that he argued with Busby on the night she was killed and that he was inside the house where the victims' bodies were found. Skinner was found about three hours after the bodies were discovered, hiding in a closet at the home of a woman he knew. He had blood on him from at least two of the victims.
Skinner insists he couldn't be the killer because he was passed out on a couch from a mix of vodka and codeine.
The testing Skinner has sought was done earlier because his trial lawyer feared the results would hurt his case.
If approved, DNA testing would be funded by the Texas Attorney General's office, according to the order. A spokesman for the attorney general did not have an estimate Tuesday of how much testing would cost or how long it would take.
The attorney general's office has not said why it changed course shortly after calling Skinner's lawsuit "vexatious and meritless."
