Fault Lines
11 December 2017

Two Murders, Two Cities, Too Little Regard For DNA

Mar. 16, 2016 (Mimesis Law) — From Charles Dickens’ A Tale of Two Cities:

IT WAS the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way- in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only.

The two cities Dickens had in mind were London and Paris.  But you won’t be far off if you imagine, at least for the moment, Austin and Akron.  Texas and Ohio.  Lone Stars and Buckeyes.  Hank Skinner and Douglas Prade.

And the DNA tests that both got.  And which prove . . . .  That’s the question, isn’t it?

Hank Skinner is on death row down in Texas, convicted of the murders of his girlfriend Twila Busby and her adult sons Elwin Caler and Randy Busby on New Year’s Eve, 1993.  Doug Prade is doing 23-life in Ohio for the murder of his wife, Margot Prade, in 1998.  Each maintains, has always maintained, that he is innocent, that someone else did the killing.  Each has argued that DNA testing will reveal the actual killer to be – well, not to be he.

And each has, after years of squabbling and litigation, gotten the DNA testing. Which showed . . . . As I said, that’s the question.

Let’s start with Skinner. The Supreme Court, in an opinion addressing some issues concerning his efforts to secure DNA testing, explained his position.

Skinner never denied his presence in the house when the killings occurred. He claimed, however, that he was incapacitated by large quantities of alcohol and codeine. The potent alcohol and drug mix, Skinner maintained at trial, rendered him physically unable to commit the brutal murders charged against him. Skinner identified, as a likely perpetrator, Busby’s uncle, Robert Donnell (now deceased), an ex-convict with a history of physical and sexual abuse.

Eventually (the details don’t matter here), the testing was done. Some DNA could have come from Donnell but not from Skinner. And there was no Skinner DNA where at least some should have been. The results were submitted to the judge who’d overseen the trial. And who said,

Feh. Who cares?

Okay, that’s not exactly what he said. Really, no Texan has ever said feh. Instead, the judge said,

[H]ad the results [of post-conviction DNA testing] been available during the trial of the offense, it is reasonably probable that Skinner would nevertheless have been convicted.

So the hell with him. Off with his head, already.

Meanwhile, in Ohio, Doug Prade was trying to get more DNA testing. Although Margot had been shot, she’d also been bitten on the arm (presumably during a struggle with her killer). The bite, through her lab coat, was severe enough to draw blood. Lots of blood. DNA testing back in 1998 detected plenty of Margot’s blood on the lab coat. So much that nobody else’s could be found.

But surely the biter left saliva. More advanced DNA testing, available these days, should be able to reveal that and, thereby, identify the actual killer. At the very least, Prade argued, once we have the killer’s DNA, it’ll be clear I’m not the guy. It took years of litigation, including a decision from the Ohio Supreme Court, but the testing was done. Other DNA was identified. It wasn’t Prade. And so when the results were submitted to the trial judge, she said,

Wowsers!

Okay, that’s not exactly what she said. That’s what Inspector Gadget would have said. What she said is that Prade was innocent. Margot was bit by someone other than Prade. Whoever bit Margot also killed her. Therefore, Prade was innocent. Q.E.D. (She also didn’t say Q.E.D.) She added that if some imbecile appellate court (nope, she didn’t say imbecile appellate court, either) overturned her decision, then she ordered a new trial.

Meanwhile, after years in prison, Doug Prade went home.

Hank Skinner appealed. The judge applied the wrong test. The question wasn’t whether even with the DNA, was it “reasonably probable” he’d have been convicted. The question was whether it was reasonably probable he’d have been acquitted. Not might it have come out the same way, but might it have come out differently. On that basis, he argued, he should have won.

The Summit County Prosecutor appealed the finding that Prade was innocent. There was evidence against him even if he didn’t bit Margot. And anyway, there’s a dispute about what all the bite mark stuff might mean. To which the court of appeals said yeah, there is evidence against him. And since he didn’t prove by “clear and convincing evidence” that he was innocent, back to prison he goes. Oh, and separately, that new trial alternative? Not so fast. The new judge on the case will have to decide about that.

And last week, in Austin, the Texas Court of Criminal Appeals gave Skinner the slimmest of victories. There was an oopsie in the Department of Public Safety DNA testing.

Specifically, the results reported may have been affected by errors identified in the statistical databases relied on by DPS and by the manner in which DPS analyzed the DNA mixtures.

Don’t you just hate when that happens? So the court returned the case to the judge. Get the right results from DPS. And then decide about Hank. And let us know. We’ll take it from there.

On the other hand, in Akron, the court of appeals threw up its hands. The evidence is inconclusive they said. Maybe Prade’s innocent. Maybe not.   Oh, sure, the bite mark evidence may be all screwy. But it doesn’t prove he’s innocent. And really, his DNA wasn’t found in the lab coat before, so there’s nothing new with it not being there now. And other new stuff – hell, it’s just evidence that the state’s evidence at trial was shoddy. Doesn’t prove he’s innocent.

Sure he might be. But he can’t get a new trial just because he might be innocent. He can only get a new trial if it’s really really, really likely that he’d be acquitted. You know, like if he proved already that he was innocent. Then the state would be entitled to try and convince another jury he’s guilty.

Hank Skinner still on death row, but with a chance. Doug Prade still back in prison, first eligible for parole (though it’s pretty much a certainty that it won’t be granted) when he’s 78.

Two convicted killers. A pretty fair chance neither actually killed anyone.

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