In a brief order, the court held that the execution could not go forward while Skinner’s application for DNA evidence testing remained unresolved. The court also noted that Skinner’s application for DNA testing relied on changes to the Texas statute concerning DNA testing that had been prompted by his case. The court stated that it needed time "to fully review the changes in the statute as they pertain to this case."

While the court did not decide whether it will require DNA testing of the untested evidence, its decision is an encouraging sign. The Texas Court of Criminal Appeals routinely hears motions to stay executions, and usually denies them. The court saw something different in this case. That is reason to be hopeful that justice will finally be served.

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Executing him.

That’s the lesson of a report released Friday by the Texas Forensic Science Commission. The report is the latest twist in an ongoing legal saga following Texas’s 2004 execution of Cameron Todd Willingham. In 2004, before Texas executed Willingham for the alleged arson murder of his three children, the Texas Board of Pardons and Parole had received a report by a renowned fire scientist named Dr. Gerald Hurst. Dr. Hurst’s report showed that the "fire-science" testimony accusing Willingham of arson at his trial was farcical and anything but scientific. Governor Rick Perry received the report too. Willingham’s execution went forward despite that the debunked "fire science" had been the centerpiece of the state’s case against him.

Concerned Texas legislators created a Forensic Science Commission, which took up Willingham’s case in 2008. After shenanigans by Governor Perry threatened to derail the Commission’s work and related wrangling that has gone on for three years, the Commission released findings in April showing that the "science" behind Willingham’s conviction and death was not science at all, and could be more accurately described as a collection of wives’ tales.

On Friday, the Commission supplemented its report, finding that it had no jurisdiction (under the statute creating it) to determine if the faulty science used at Willingham’s trial was the result of professional negligence or misconduct by fire investigators for the state.

But in a hopeful silver lining for people imprisoned for arson in Texas, the report included a commitment from the state fire marshal’s office, which will partner with the Innocence Project of Texas, to identify and reinvestigate old arson cases that may have been built on the same faulty "fire science" that spelled Willingham’s demise.

The Commission’s chairman, Dr. Nizam Peerwani, said "it is important to understand that science is an ever-changing process."

Dr. Peerwani is right. Even assuming that the state’s experts are never negligent, and that police and prosecutors never commit misconduct, science is ever changing. What was true yesterday may be found false tomorrow.

Still, scientific testimony has its place. It may sometimes be a proper basis for convicting and imprisoning a person. If we find out it was wrong, we can always let the person out and try to repair the damage — as Texas will now attempt for victims of junk fire science.

But while science can be probed to reveal flaws in our past understanding of it, it can never bring back the dead. That’s the frightening agony known by the family of Cameron Todd Willingham. And one we should thoughtfully consider before Texas or any other state executes again.

CORRECTION: The Texas Forensic Science Commission report was released on Friday, October 28, not Monday, October 31.

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In March, over the objection of prosecutors, the United States Supreme Court cleared the way for Skinner to bring a federal civil rights lawsuit to compel DNA testing of the untested evidence. Even though that litigation remains pending and unresolved, prosecutors have obtained an execution date for Skinner and appear poised to execute him before the court rules on his claim.

The prosecutors’ stubborn combination of refusing to allow this DNA testing and insisting that the execution go forward is unconscionable.

A letter today from prominent Texas officials including a former governor, a former criminal appeals judge, former district attorneys and current Texas legislators, eloquently spelled out why the testing should be done before Skinner’s execution date:

Executing Mr. Skinner without testing all the relevant evidence would suggest official indifference to the possibility of error in this case and needlessly undermine public confidence in Texas’s criminal justice system.

We would add that testing this evidence is necessary to make sure another innocent man is not executed this year. Is that too much to ask?

Take action to end the death penalty in your state.

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Whatever the reasons, Americans are coming around to the thinking of most other nations that the death penalty is an anachronism that can be left to the dustbin of history. In the wake of New York, New Jersey, New Mexico and Illinois’ recent repeals of the death penalty — and with possible repeal in California in sight — two new polls show significant declines in national support for the death penalty.

In a recent CNN poll, only 48 percent of respondents preferred a death sentence over a sentence of life without parole, down from 56 percent seven years ago. Meanwhile, fully 50 percent of respondents now believe life without parole is the preferable punishment. A recent Gallup poll reflected this same downward trend (though with more support for the death penalty). It found that now only 61 percent of Americans approve of using the death penalty for persons convicted of murder, down from 64 percent last year — the lowest level of support since 1972.

With these polls as further evidence that our message is taking the hold, the ACLU will continue to work to show that the death penalty is unjust, unwise and unnecessary.

CORRECTION: An earlier version of this post misworded the findings of the CNN poll. This has been corrected.

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Despite this broad agreement, our nation has failed to rid race from the decision to execute — take, for instance, the case of Marcus Robinson in North Carolina. And now, shockingly, Texas appears poised next week to execute Duane Edward Buck based on the fact that he is black.

In Texas, imposing the death penalty in capital cases comes down to one question: is the defendant going to be a "future danger" if he or she is not executed? Mr. Buck was sentenced to die based on testimony by Dr. Walter Quijano, who told jurors that Mr. Buck was more likely to pose a future danger to society because he is black. Dr. Quijano’s testimony came in 1997, more than 20 years after Texas promised the Supreme Court that "no correlation exists between the race/ethnic background of a defendant and the probability that he will be either convicted of capital murder or given the death penalty."

The same psychologist gave similar testimony in a total of seven Texas cases. In 2000, then-Attorney General John Cornyn did something highly unusual for a prosecutor: he called for the retrial of all seven men who had been sentenced to death based on Dr. Quijano’s testimony that their race or ethnic background made them more dangerous. This list of seven included Duane Edward Buck.

Courts granted new sentencing trials to six of those inmates, but upheld Mr. Buck’s unconstitutional death sentence on technical procedural grounds (which we have previously noted often lead to unjust results based on form over substance). Mr. Buck was therefore not granted an opportunity to have a new sentencing hearing unbiased by race. He is scheduled to be executed by the State of Texas on September 15, 2011.

Attorney General Cornyn was a vigorous defender of the death penalty in Texas, but made it clear that he wanted no part of calling for executions that were based on this kind of racism: "The people of Texas want and deserve a system that affords the same fairness to everyone." It remains to be seen if the governor agrees.

We must not allow the execution of a man on the basis of his race. You can help to prevent this injustice: go here to urge Texas Governor Rick Perry and to the board of pardons and parole to intervene before it’s too late.

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