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THE U.S. SUPREME COURT AND THE RIGHT TO TEST DNA SAMPLES MICHAEL LINDENBERGER
 MARCH 9, 2011
The U.S. Supreme Court and the Right to Test DNA Samples By MICHAEL A. LINDENBERGER Wednesday, Mar. 09, 2011 Sixteen years ago, a Texas jury decided that Hank Skinner beat his girlfriend Twila Busby to death with an ax handle and murdered her two sons with knives. Police said they followed a trail of blood to the bodies and found Skinner standing in a closet with blood on his blue jeans and wearing blood-soaked socks. He was to die by lethal injection in Huntsville last year, but was saved by an emergency stay issued by the U.S. Supreme Court. And on Monday the same court ruled that he cannot be executed until lower courts hear his demand that several items from the crime scene, including Busby's rape kit and two knives used in the attack, be tested for DNA. After two state courts denied his request for the testing, in one case noting that his own attorney had decided against seeking some of the tests for fear of what they may show, he sued in federal court, claiming that Texas' rules for seeking postconviction DNA testing upon which the judges rely are too narrow. In her opinion on Monday, Justice Ruth Bader Ginsburg worked overtime to explain that the 6-to-3 decision hardly sets Skinner free. He'll still have to overcome a host of legal objections — which she stressed were "ripe for consideration" by lower courts — to his demand that items that weren't tested at trial be tested now. What the decision means is that Skinner will at least get a day in court to make his argument that the Texas DNA statute is too restrictive, and one more chance, then, to avoid joining the long list of Texas inmates who have been executed. The court's reasoning that Skinner's demand for new testing, if successful, could just as easily end up hurting his efforts to prove his innocence as it could help him was the legal nicety upon which Ginsburg hung her opinion. The lower courts had dismissed his suit without hearing its merits because they argued that when a state convict has exhausted his other appeals, an attack on the validity of his conviction in federal court must be contained in a motion seeking a writ of habeas corpus. The rules governing such a request, which is sought in almost all death-penalty cases, are strict. But Skinner's request isn't a motion for habeas corpus and doesn't seek to directly overturn his conviction. Instead, he simply wants the prosecutor who has custody of the bloody evidence collected at the crime scene to test it for DNA samples. He has always maintained his innocence, and his lawyers have argued that the victim's late uncle, a man with a history of violence and sexual abuse, was the more likely suspect. His case was taken up by the Medill Innocence Project at Northwestern University in 2000, and according to Scotusblog.com, where his case has received sustained and lengthy coverage, since then a key trial witness has recanted her testimony amid claims that she was pressured by police to testify against Skinner. Skinner's federal suit says that district attorney Lynn Switzer's refusal to have the additional evidence tested for DNA violates his rights, and brought his claim under the federal civil rights laws, known as Section 1983 of the U.S. Code. The decision should have wide impact, despite Ginsburg's narrow ruling, says David Protess, a journalism professor and director of the Medill Innocence Project. "It will profoundly affect other postconviction DNA cases in which prosecutors are withholding physical evidence," Protess tells TIME. "Now prisoners will have a federal civil right to sue stonewalling prosecutors to get access to the evidence that could prove their innocence." It was Protess's students who began questioning Skinner's conviction more than a decade ago, leading to a 2000 death-row interview in which Skinner first called for the DNA testing. Subsequent classes have pursued the case ever since, interviewing the jurors and key witnesses. "Since then, the students have uncovered additional evidence ... and interviewed the original jurors, who recanted their verdicts and called for DNA testing. They were in Texas and Oklahoma just two weeks ago, continuing to interview long-lost witnesses in the case," he says. By allowing the case to proceed, the high court has opened a door it just about closed in 2009, with a decision in an Alaska case that said convicts cannot assert a right to DNA testing under substantive dueprocess claims under the 14th Amendment. Justice Clarence Thomas, whose dissent in the Skinner case was joined by Justices Anthony M. Kennedy and Samuel Alito, said the court has already barred the use of Section 1983 to attack the integrity of state-court trial proceedings, and should have used this case to craft
a new rule also barring attacks on related procedures, such as the Texas rules governing access to DNA evidence. "Allowing Skinner to artfully plead an attack on state habeas procedures instead of an attack on state habeas results undercuts the restrictions Congress and this Court have placed on federal review of state convictions," Thomas wrote. "To allege that the Texas courts erred in denying him relief on collateral review, Skinner could only file a federal habeas petition, with its accompanying procedural restrictions and deferential review. But a successful challenge to Texas' collateral review procedures under S1983 would impeach the result of collateral review without complying with any of the restrictions for relief in federal habeas." Skinner's case will head back to lower courts for argument on the merits. But, whatever happens, the Supreme Court decision is another powerful boost, despite its careful tone and narrow limits, for the use of DNA evidence by inmates who are finding new ways to challenge their convictions. And Texas, home to both the busiest death chamber in the country and, in Dallas, maybe the busiest prosecutor in the country when it comes to reviewing wrongful convictions, remains the place to watch as the justice system struggles with the conflict between the human capacity for error and the finality of death. As for the student investigators, they were delighted Monday, Protess says. "My students are thrilled with the court's decision. Their goal has always been to find the truth, and the Justices' ruling is a major step in the right direction ... I've regularly been in touch with all the students who worked on the case, including just about everyone from 2000. I've never seen so many exclamation points in e-mail messages." Read more: http://www.time.com/time/nation/article/0,8599,2057836,00.html#ixzz1GC8pyRlb