Sam Milsap: DNA testing works, but not if we fail to utilize it

Former Bexar County DA, Sam Milsap's has published the following Op-Ed in the Houston Chronicle. He is asking state of Texas to test the DNA evidence that "could remove the uncertainty about Skinner's guilt."

Last week, Gov. Rick Perry granted the state's first posthumous pardon to a man who was innocent of a crime for which he had spent 13 years in prison. DNA testing cleared Tim Cole of a rape he did not commit, but unfortunately it came too late — nine years after he had died in prison. The state must do everything it can to prevent this kind of tragedy from happening again.

On March 24, Texas plans to execute Henry Watkins Skinner even though untested DNA evidence could show we've got the wrong man. DNA testing could resolve doubts about Skinner's guilt in the 1993 Pampa slayings of his girlfriend and her two sons, but the state inexplicably has blocked that testing for more than a decade.

I'm not an advocate for Hank Skinner. I'm an advocate for the truth. If DNA tests could remove the uncertainty about Skinner's guilt — one way or the other — there's not a good reason in the world not to do it.

Some taxpayers may grumble at spending the public's money on DNA tests for individuals on death row. That argument doesn't hold water in Skinner's case. In 2000, the investigative journalists at the Medill Innocence Project offered to pay for the DNA tests. Ten years later, that offer still stands. There may be other objections to testing the evidence, but they don't outweigh the potential horror of executing an innocent man.

It is cases like Skinner's that ended my lifelong support for the death penalty. Any system driven by the decisions of human beings will produce mistakes. This is true even when everyone — judges, prosecutors and defense attorneys — is acting in good faith and working as hard as he or she can to get it right.

Tim Cole is only a recent example of the frailties in our criminal justice system. Several years ago, this newspaper argued persuasively that Ruben Cantu, a defendant I prosecuted who was put to death in 1993, may well have been innocent. Twenty years after Cantu's trial, my star witness recanted his trial testimony. Many people consider his recantation credible because he had nothing to gain by reversing his position except a whole lot of trouble.

That case brought home to me, in a way that nothing else could have, that the system we trust to determine who may live and who must die simply doesn't work in all cases. Other investigative stories have revealed that Texans Carlos DeLuna, who was executed in 1989, and Cameron Todd Willingham, executed in 2004, were almost certainly innocent.

Since 1973, 139 people in 26 states have been released from death row based on evidence of their innocence. Eleven of them were in Texas. Many of these people were freed because of DNA evidence. But DNA testing works only if we use it.

Skinner's execution date is just a few days away, but key pieces of evidence have never been tested, including two knives, one of which might be the murder weapon; a man's windbreaker, which had blood, sweat and hair on it and was found next to the victim's body; the victim's fingernails, which may have DNA evidence under them; and samples from a rape kit.

Skinner has steadfastly maintained his innocence, but his trial counsel did not seek DNA testing. His attorney also failed fully to investigate the potential involvement of another suspect. That man, a relative of Skinner's girlfriend, had a violent criminal history and an incestuous relationship with the victim. He had been seen stalking her at a party on the night of the murder and left the party shortly after she did. His whereabouts for the rest of the night remain a mystery.

This individual also wore a windbreaker like the one found at the murder scene. And the day after the crime, a neighbor says, he frantically scrubbed the interior of his pickup truck, removed the rubber floor mats and replaced the carpeting. DNA evidence may or may not implicate this alternate suspect, but we'll never be certain without testing.

Attorneys for Skinner have filed an appeal with the U.S. Supreme Court asking the court to stop Skinner's execution in order to decide whether prisoners can use the Civil Rights Act to compel post-conviction DNA testing. That's Skinner's last chance, and I hope the court intervenes. But frankly, I'd rather see Texas clean up its own house on this one. Before we send a man to his death, shouldn't we do everything in our power to be certain of his guilt?

Millsap, who served as Bexar County district attorney from 1982 to 1987, has practiced law in San Antonio for 35 years.

Sam Milsap was one of the guest speakers at the 2006 Anti-Death Penalty Alternative Spring Break in Austin, Texas. He talked to SADP's Hooman Hedayati about his alternative spring break experience (video).