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Judge denies DNA tests before Texas execution

By Juan A. Lozano

Associated Press

Published: Thursday, Nov. 3 2011 3:50 p.m. MDT

HOUSTON — A judge has denied a Texas death row inmate's request for testing of DNA evidence his attorneys say could prove his innocence, less than a week before the man is set to be executed.

Hank Skinner, 49, is scheduled to be executed Wednesday for the 1993 deaths of his girlfriend and her two sons. Skinner's attorneys had asked for testing of DNA evidence that was not tested before his 1995 trial.

But Judge Steven R. Emmert denied Skinner's request in a brief order issued Wednesday and made public Thursday. The order did not explain the judge's decision.

Skinner's attorneys said they are "deeply disappointed" and plan to appeal Emmert's ruling with the Texas Court of Criminal Appeals.

"The stakes in this case are too high to allow Mr. Skinner to be executed before he has a fair chance to make his case that the trial court made a grave mistake in denying his request for DNA testing," said Robert Owen, an attorney for Skinner.

Texas Attorney General's Office spokeswoman Lauren Bean declined to comment on the judge's order. The office is handling appeals in the case for prosecutors in Gray County.

Prosecutors have called the DNA testing request merely an attempt by Skinner to delay his execution again. Last year, Skinner came within an hour of lethal injection before the U.S. Supreme Court stepped in.

Skinner also has filed a federal lawsuit claiming Texas violated his civil rights by withholding access to the evidence. That lawsuit has been put on hold until Skinner's appeals run through the state courts.

Skinner was sentenced to death for the 1993 deaths of his girlfriend, 40-year-old Twila Busby, and her sons Elwin "Scooter" Caler, 22, and Randy Busby, 20. The victims were strangled, beaten or stabbed on New Year's Eve at their home in Pampa in the Texas Panhandle.

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 that blood from at least two victims was on him, and authorities said a trail of blood led police from the bodies to his hiding place a few blocks away.

Skinner has acknowledged being inside the house where the killings took place but has insisted he couldn't be the killer because he was passed out on a couch from a mix of vodka and codeine.

The evidence Skinner sought was not tested at the time of Skinner's trial because his lawyer feared the results would hurt his case. But his attorneys recently argued that forensic DNA testing "has a strong likelihood of confirming Mr. Skinner's claim."

The untested evidence includes vaginal swabs taken from Busby during an autopsy and two knives found in or around Busby's home.

The request for DNA testing is the third from Skinner but the first since a state law about evidence testing took effect Sept. 1. The new law allows DNA testing of evidence even if the offender chose not to seek testing before trial.

Prosecutors maintain Skinner's claims about the evidence aren't new and other courts already have decided the issue.

Last month, a group of current and former prosecutors and lawmakers sent a letter asking Texas Gov. Rick Perry and other state officials to delay Skinner's execution so the DNA evidence could be tested. Perry's office said it was "a matter pending before the courts."

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