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Originally published Monday, March 7, 2011 at 7:27 AM

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Court rules for inmate who wants DNA testing

The U.S. Supreme Court ruled Monday 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's innocent.

Associated Press

HOUSTON —

The U.S. Supreme Court ruled Monday 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's innocent.

By its 6-3 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 Gray County 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.

"The majority opinion said they were basically passing no opinion on the merits of the claim. They were just saying this category of claim can be brought."

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 by withholding access to the evidence.

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. The district court, along with the 5th U.S. Circuit Court of Appeals, earlier dismissed his case. Federal judges in other parts of the nation have allowed similar lawsuits to go forward.

"The high court's ruling will simply make it possible for Mr. Skinner to vindicate his due process rights in federal court, a right long enjoyed by prisoners in other parts of the country," said Rob Owen, Skinner's attorney and a University of Texas law professor. "We look forward to making our case in federal court that Texas' inexplicable refusal to grant Mr. Skinner access to evidence for DNA testing is fundamentally unfair and cannot stand.

"The court's action corrects the 5th Circuit's fundamental misunderstanding of this important principle."

But Ginsburg also said it is by no means clear that Skinner can prevail in his lawsuit and actually gain access to the evidence for testing. Even if he does win in court, she said, testing the evidence "may prove exculpatory, inculpatory or inconclusive."

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

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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 who feared the test results would be more damaging to the defense case. The untested material includes 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 and a jacket next to Busby's body.

Skinner argues that evidence could exonerate him.

He has acknowledged being inside the house where the killings took place but has insisted that he couldn't be the murderer because he was passed out on a couch from a mix of vodka and codeine. He contends the mortally wounded Caler, who had several stab wounds, likely bled on him while trying to roust him from his stupor. Skinner has said the woman's blood likely got on his clothing because they were nearby as she was being bludgeoned with a pickax handle.

He and his attorneys point to the woman's now-deceased uncle, Robert Donnell, as the possible killer. Donnell was described as a "hot-tempered ex-con" who became more violent when he drank. Donnell and Busby were at a New Year's Eve party the evening of the slayings but she left early after Donnell made crude remarks and unwanted passes, according to Skinner's lawyers.

Justice Clarence Thomas, joined by Justices Samuel Alito and Anthony Kennedy, said Skinner's legal claims should have been cut off and said the majority ruling "provides a roadmap" for prisoners to file civil rights lawsuits after other claims have failed.

The case is Skinner v. Switzer, 09-9000.

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AP writer Mark Sherman in Washington contributed to this report.

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