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America Is Stuck With the Death Penalty for (At Least) a Generation

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With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Texas: DNA in Hank Skinner case to get new analysis

The long court fight over DNA testing for death row inmate Hank Skinner grew lengthier Wednesday when the state’s highest criminal court ordered that a new analysis be performed on DNA tests that may have produced questionable results.

The ruling by the Court of Criminal Appeals was the latest response to a notice, sent last year by the FBI, alerting members of the criminal justice system about potential mistakes in the way DNA matches were calculated in samples that included DNA from multiple people.

The process, known as “DNA mixture interpretation,” produced results that could overstate the reliability of a match, which is typically presented as accurate to within a minuscule fraction of a percent, the FBI warned last May.

Skinner, sentenced to death for the 1993 murder of girlfriend Twila Busby and her two adult sons in the Panhandle city of Pampa, had long pressed for DNA testing that was not available during his 1995 trial, saying the results would bolster claims that he was too incapacitated by alcohol and codeine to have beaten Busby and stabbed her sons to death.

However, tests on blood found on a knife recovered from the scene showed Skinner’s DNA mixed with that of Busby’s sons — Elwin Caler, 22, and Randy Busby, 20. Along with other DNA tests, the findings prompted state District Judge Steven Emmert to rule that the new results would not have been enough to change jurors’ minds about Skinner’s guilt.

Skinner’s lawyers challenged the judge’s interpretation of the DNA results, telling the Court of Criminal Appeals in a November 2014 filing that the findings undermined key aspects of the prosecution’s theory of the murders.

But while the court was weighing Skinner’s latest appeal, the FBI issued its memo on DNA mixtures, prompting the Texas Forensic Science Commission to advise prosecutors and defense lawyers to have such DNA results reassessed so a new match probability could be calculated.

Hank Skinner
Hank Skinner
The Texas Department of Public Safety Crime Lab announced last year that it had stopped using DNA mixture standards, in place since 1999. DPS also agreed to issue new findings in Skinner’s test results but first needed to rewrite laboratory procedures and acquire specialized software, according to court records.

The new lab procedures will begin March 18, DPS said Wednesday.

In its 8-1 ruling Wednesday, the Court of Criminal Appeals returned Skinner’s appeal to the trial court to “ensure that the recalculation is performed in a timely manner” and ordered the judge to submit new conclusions, if warranted, about the meaning of the test results.

The appeals court also said it wanted the matter resolved within 90 days but indicated that the deadline could be extended.

“They’re willing to let DPS take the time they need to accommodate us with the other cases they’re obviously going to be looking at as well,” said Rob Owen, Skinner’s lawyer and a law professor at Northwestern University in Chicago.

Source: American-Statesman, Chuck Lindell, March 10, 2016

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