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Supreme Court: Can death row inmate force state to do more DNA testing?

The Supreme Court agreed to take the case of a man on Texas' death row. He wants the state to do DNA tests on other, untested evidence he says would prove his innocence. A victory would make it easier for convicted criminals to continue to fight convictions.

By Staff writer / October 13, 2010

Henry Skinner, sentenced to death for the 1993 triple murder of his girlfriend and her two sons, gives an interview at a Livingston, Texas, prison in January. His lawyers are seeking additional DNA tests under a civil rights law.

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The US Supreme Court took up a case on Wednesday examining whether a Texas death row inmate may invoke a federal civil rights law to conduct DNA tests on untested pieces of evidence from his trial.

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Henry Skinner was convicted in the 1993 triple murder of his girlfriend, Twila Busby, and her two developmentally disabled sons in Pampa, Texas.

Prosecutors used DNA tests as well as other physical evidence to win a conviction and death sentence. But Mr. Skinner wants to test other, untested evidence. He says the results will support his claim that he is innocent.

Texas prosecutors refused his request, and those refusals were upheld in the Texas courts and federal courts. Prosecutors argued that Skinner had an opportunity to test the evidence at the time of his trial but that his lawyer declined to do so for strategic reasons.

The issue before the high court is whether Skinner is now entitled to pursue the matter under a federal civil rights law, known as Section 1983, or whether he must file it as part of a habeas corpus appeal.

Skinner favors the civil rights route. Habeas corpus appeals are harder to win.

The case is significant because a victory for Skinner would make it easier for convicted criminals across the country to continue to fight their convictions.

For that reason, 22 states joined the State of Texas in urging the high court to reject Skinner’s arguments.

The expanding use of DNA testing has freed a significant number of individuals who had been wrongly convicted. Forty-eight states have enacted laws governing DNA testing after a conviction. But the Supreme Court has been reluctant to expand those protections through adoption of its own national rule.

Last year, the court decided 5-4 that an Alaska man had no constitutional right to obtain post-conviction access to evidence used against him for DNA testing. The majority justices left it to the state legislatures and the state courts to fashion fair procedures for DNA testing.

The Skinner case offers another opportunity for the court to consider whether to establish a national rule on post-conviction DNA testing.

At oral argument on Wednesday, the justices appeared to be as sharply split on the issue as they were in last year’s 5-4 decision.

Skinner’s lawyer, Robert Owen of Austin, Tex., said the Texas DNA testing law was enacted to protect a group of inmates who may have been wrongfully convicted and would need the testing procedures to prove their innocence.

Mr. Owen said the Texas courts had interpreted the law “in a way that needlessly chops a bunch of those inmates out.” He said the courts acted arbitrarily by denying Skinner, and others, an opportunity to test the evidence.

Critics have warned that a broad ruling permitting widespread post-conviction testing would unleash a flood of appeals and litigation.

Owen disagreed. “The rule that we are asking the court to adopt for the whole nation has been the rule for some time in six different circuits,” Owen said. There’s been no flood, he said.

Gregory Coleman, the lawyer for the Texas prosecutors, said Skinner’s lawsuit misreads the Texas law for post-conviction DNA testing. He said convicted individuals must be able to show a judge that had the DNA tests been performed, the individual probably would not have been convicted.

Unless a litigant can make that showing, Mr. Coleman said, a Texas judge will not order post-conviction DNA testing.

Coleman told the justices that Skinner’s appeal should be filed as a habeas corpus petition rather than as a claim that his civil rights have been violated. Ultimately the point of the appeal is to challenge Skinner’s conviction, he said.

“If I seek DNA evidence, it’s because I want to attack my conviction. And there is no other reason to do it,” he told the court.

Skinner’s case came to the Supreme Court under dramatic circumstances. The justices issued a stay roughly an hour before he was set for execution.

At the center of the appeal is an effort by Skinner’s lawyers to test certain items of evidence that Skinner maintains may help prove his innocence.

One defense theory is that Skinner’s girlfriend, Ms. Busby, was killed by an uncle who earlier that evening had made crude sexual advances. A jacket found at the murder scene was similar to a jacket the uncle was known to wear. Also, a witness reported that the uncle had thoroughly and carefully washed his truck shortly after the murders.

The state counters that abundant evidence was presented at the trial proving Skinner’s guilt. Prosecutors point to a fresh cut on Skinner’s palm and his bloody palm prints at the crime scene. They say he had threatened to kill Busby if she was ever unfaithful to him.

Skinner admits he was present in the house at the time of the murders, but says he had passed out from substantial amounts of alcohol and codeine. He says he suffered his hand injury prior to the murders.

Skinner is seeking DNA testing of vaginal swabs taken during the Busby autopsy, and tests of any DNA under her fingernails. He has also requested tests of any DNA on the jacket and a bloody towel found near Busby's body, and on a knife.

The case is Skinner v. Switzer. A decision is expected before next summer.

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