October 13, 2010 - PRESS

PRESS

HIGH COURT WEIGHS DEATH ROW INMATE’S DNA QUERY THE NEW YORK TIMES OCTOBER 13, 2010

High Court Weighs Death Row Inmate’s DNA Query

By ADAM LIPTAK – The New York Times October 13, 2010 WASHINGTON — In the course of an hour-long argument at the Supreme Court on Wednesday about a death row inmate’s quest to test DNA evidence, the justices asked neither of the questions that people without legal training might have thought crucial: Why won’t Texas prosecutors consent to the testing? And could the results show that the inmate, Henry W. Skinner, is innocent of the triple murder that sent him to death row?

The justices focused instead on whether Mr. Skinner had located a path through a thicket of legal doctrines meant to limit post-conviction challenges.

Last year, in District Attorney’s Office v. Osborne, No.08-6, the court ruled by a 5-to-4 vote that inmates have no freestanding right under the Constitution’s due process clause to test evidence that could prove their innocence in states without laws on DNA testing. The court and Congress have, moreover, severely limited habeas corpus challenges to convictions and sentences.

Mr. Skinner chose a third route, suing under a federal civil rights law known as Section 1983 and saying a Texas law that allows DNA testing in only some circumstances violated his rights.

That position required Mr. Skinner’s lawyer, Robert C. Owen, to maintain that his client’s goal, at least for now, was not to challenge his conviction or death sentence, as such challenges would have to be brought through a habeas petition, but simply to test the evidence.

Justice Samuel A. Alito Jr. was skeptical. “In the real world,” he said, “a prisoner who wants access to DNA evidence is interested in overturning his conviction.”

Justice Anthony M. Kennedy wondered whether the Supreme Court erred in staying Mr. Skinner’s execution in March, less than hour before he was to be put to death, in light of his position that he was not currently challenging his death sentence.

“You are telling us that your attack doesn’t go to the sentence,” Justice Kennedy told Mr. Owen. “I don’t see why we don’t just lift the stay, under your view of the case.”

Mr. Skinner maintains that he was sleeping on a sofa in a vodka-and-codeine haze when his girlfriend and her two sons were killed on New Year’s Eve in 1993. Prosecutors have blocked his requests to test blood, fingernail scrapings and hair found at the scene.

Prosecutors said in their briefs that Mr. Skinner was playing games with the system, dragging out his case and seeking to impose unacceptable burdens on government resources and the victims’ dignity. They added that testing would be pointless because “no item of evidence exists that would conclusively prove that Skinner did not commit the murder.”

Justice Sonia Sotomayor noted that Mr. Skinner had not sought DNA testing of the contested materials in preparation for his trial. “DNA testing was available then,” she told Mr. Owen. “You could have gotten it.

Strategically your trial attorney chose not to, and so that disqualifies you from seeking it now.”

Gregory S. Coleman, a lawyer representing Lynn Switzer, the district attorney in Pampa, Tex., said Mr. Skinner should not be allowed to split his challenge in two by seeking evidence under the civil rights law and then attacking his conviction and sentence through habeas corpus.

That did not seem to trouble Justice Stephen G. Breyer. “What he wants is the DNA,” Justice Breyer said of Mr. Skinner. “He thinks it’s going to be exculpatory. He doesn’t know that till he gets it.”

Justice Breyer quoted with evident pleasure from a 2005 concurrence by Justice Antonin Scalia in Wilkinson v. Dotson, which allowed challenges to parole procedure to be brought under the civil rights law rather than habeas corpus.

“Dotson says that you go into habeas if winning — i.e., getting the DNA — would necessarily spell speedier release,” Justice Breyer said. “End of the matter. I’m reading to you from Justice Scalia’s concurrence, where he quotes my majority with great praise.”

Justice Scalia seemed to agree that the court’s earlier decisions tended to support Mr. Skinner’s use of the civil rights law in the case, Skinner v. Switzer, No. 09-9000. “We’ve never had a case like this,” he said, “and it’s conceivable to me that we have to expand what we said.” http://www.nytimes.com/2010/10/14/us/14scotus.html?_r=2&ref=us