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Is there a civil right to examining DNA evidence before being executed?

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Skinner v. Switzer

On October 13th, the U.S. Supreme Court heard oral arguments in the case of Skinner v. Switzer. Hank Skinner, convicted in a triple homicide and facing a death sentence in Texas, wants access to DNA evidence from the crime scene. The court will determine if Skinner's request for DNA evidence is properly filed as a civil rights suit or must be filed as a petition for habeas corpus.

The salient details surrounding the event would make a good script for a CSI or Law and Order (swiped from the headlines) episode. Skinner's claim that he was too drunk to have committed the murders evokes a "yeah, right" response. Too intoxicated on alcohol and pills, Skinner says he was physically incapable of mustering the strength needed to commit the violent acts that resulted in the deaths of his girlfriend and her two mentally disabled, adult children. The toxicology reports seem to bear out this claim. But the jury didn't buy it. Skinner doesn't dispute that he was at the scene of the crime, and the blood of the victims was found on him. The evidence that Skinner wants tested - a couple of knives, vaginal swabs, fingernail clippings, a bloody towel, a jacket - holds the key to the identity of the killer.

Under Skinner's civil rights claim to access the untested DNA evidence, he has to prove that his request is not about the legitimacy of his conviction or sentence. If it's about his conviction or sentence, Skinner has to go the habeas corpus route. It made for a convoluted intellectual thrust-and-parry at times. Justice Kennedy asked about the oddness and irony of the situation, querying Skinner's attorney, Robert C. Owen of the University of Texas at Austin, if it's not about the sentence, why did he ask the Supreme Court for a stay of execution? A Catch-22 situation if there ever was one. Owen should have said, "Why do you think?" A dead man has no life, and thus no constitutional rights to anything.

But the request to test the DNA evidence is not really about the conviction or sentence. It's about the evidence and the possibility that it may shed some light on who the real killer is. Skinner hopes it is exculpatory. But it may be inculpatory. Skinner doesn't know. And that's why this case should be a no-brainer for the court. It's not about the conviction or the sentence.

The Texas prosecutors make the usual dire floodgate-deluge warnings that Supreme Court respondents make when they don't have a legal leg to stand on. Just the day before, the Respondent's attorney in Bruesewitz v. Wyeth made the same argument with a straight face. The 5th Circuit, of which Texas is the death penalty capital, is the only circuit that continues to insist that case law should be read to bar a civil rights suit for post-conviction DNA testing. Every other circuit has recognized this type of suit. The Texas prosecutors should pay close attention to the words of Justice Harlan in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics: the fear of burgeoning caseloads "should not be permitted to stand in the way of recognition of otherwise sound constitutional principles." But here, that fear is not even remotely rational.

Success in this case means getting access to the evidence. That's all.


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I like to read and write about the Supreme Court. I read my articles on the radio in Washington, DC.
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