The Lawletter Vol 34 No 12, December 7, 2010
Mark Rieber, Senior Attorney, National Legal Research Group
The Supreme Court recently heard oral argument in a case involving an inmate's claim under 42 U.S.C. § 1983 that the state district attorney's postconviction refusal to allow him access to biological evidence for purposes of forensic DNA testing violated his Fourteenth Amendment right to due process and his Eighth Amendment right to be free from cruel and unusual punishment. Skinner v. Switzer, No. 2:09‑CV‑0281, 2010 WL 273143 (N.D. Tex. Jan. 20, 2010) (slip opinion), aff'd, 363 F. App'x 302 (5th Cir. 2010) (unpublished), cert. granted, 130 S. Ct. 3323 (2010). The lower federal courts had denied Skinner's claim, based on binding precedent in the Fifth Circuit holding that an action by a prisoner for postconviction DNA testing is not cognizable under § 1983 and must instead be brought as a petition for writ of habeas corpus. See Kutzner v. Montgomery County, 303 F.3d 339 (5th Cir. 2002); see also Dist. Attorney's Office v. Osborne, 129 S. Ct. 2308 (2009) (declining to address the issue but holding that state prisoner had no substantive due process right of access to the State's evidence to which he could apply new DNA-testing technology that might prove him innocent). The oral argument before the Supreme Court focused on the procedural issues related to Skinner's § 1983 claim rather than on any substantive issue pertaining to his innocence or on the reason the prosecutor did not consent to testing. Skinner's attorney in his state murder trial had declined to press for the DNA tests during trial; the prosecutor had also declined to conduct the tests.