March 7, 2011
The U.S. Supreme Court recently heard oral arguments in the appeal of Henry Skinner, who was convicted 15 years ago in Texas state court on the charges of murdering his girlfriend and her adult sons, and who has spent years trying to have prosecutors test available evidence for DNA that he claims will exonerate him. Skinner v. Switzer, Dkt. No. 09‑9000, 2010 WL 3999615 (U.S. Oct. 13, 2010) (oral argument). Having exhausted all other available avenues of relief, Skinner was 45 minutes from being executed when the Supreme Court granted his request for a stay of execution to consider his claim that he was being deprived of his due process rights by state court decisions that did not provide a way to compel the State of Texas to conduct meaningful DNA testing on the crucial evidence that was used to convict him.
The procedural posture of Skinner is somewhat unusual, as the case comes to the Court as a civil rights action under 42 U.S.C. § 1983, but the underlying issue is not so novel. In Dist. Att'y's Office for Third Jud. Dist. v. Osborne, 129 S. Ct. 2308 (2009), the Supreme Court addressed the issue of postconviction DNA testing and held in a 5-4 decision that convicted defendants did not have an unlimited constitutional right to such testing and that the states had the leeway to adopt reasonable guidelines to balance the access to testing with other important state interests, including finality of convictions and the expense of testing. The Court noted in Osborne that since the advent of DNA testing in the 1980s, 44 states had enacted legislation to establish guidelines on when postconviction DNA testing was required.
Although Texas is one such state with a DNA testing statute, it did not provide relief for Skinner. In his trial, Skinner maintained his innocence of the murders despite the fact that he was found hiding in a closet at a nearby house not long after the crimes were committed, covered in the victim's blood. Skinner insisted that at the time of the murders, he was practically comatose on what tests showed to be a near‑lethal combination of codeine and alcohol and that he could not have overpowered and killed the three victims in his condition. He acknowledged that he was present with the three victims at the time of the murders but asserted that the blood made its way onto his clothing when he awoke and discovered the dead bodies and was examining them. No DNA testing of the evidence, including material from a rape kit, hair, and skin cells under the girlfriend's nails, was done prior to trial, because prosecutors felt that they had adequate evidence for conviction without DNA evidence. Skinner did not request DNA testing prior to trial, largely on the advice of his attorney, who feared that the evidence would result in a stronger case against Skinner. After the trial, Skinner argued that his girlfriend's uncle was the likely killer, and the desire to show that the uncle, who is now deceased, could be linked to the crime by DNA evidence has been the basis of Skinner's postconviction efforts.
Skinner first raised his DNA claim in a state habeas corpus action in 2002, but the court found that Skinner did not meet the requirements of the Texas Code of Criminal Procedure, which allows postconviction DNA testing only if
the convicted person establishes by a preponderance of the evidence that:
(A) the person would not have been convicted if exculpatory results had been obtained through DNA testing; and
(B) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.
Tex. Code Crim. Proc. Ann. art. 64.03(a)(2). This ruling was affirmed by the Court of Criminal Appeals of Texas in 2003. Skinner v. State, 122 S.W.3d 808 (Tex. Crim. App. 2003). Skinner then filed for habeas relief in federal court, arguing that his attorney had been constitutionally ineffective for failing to ask for DNA testing on all of the evidence, but the district court held that the failure to ask for DNA testing was a reasonable trial strategy and denied any relief, Skinner v. Quarterman, 2007 WL 582808 (N.D. Tex. 2007), and the Fifth Circuit affirmed, Skinner v. Quarterman, 576 F.3d 214 (5th Cir. 2009).
Skinner then brought his civil rights action in federal court, where it was rejected by the district court, Skinner v. Switzer, 2010 WL 273143 (N.D. Tex. 2010), and the Fifth Circuit, Skinner v. Switzer, 363 F. App'x 302 (5th Cir. 2010). The Fifth Circuit found that under the ruling of Heck v. Humphrey, 512 U.S. 481 (1994), a petition for a writ of habeas corpus is the exclusive remedy for a state prisoner challenging his conviction on the basis of DNA evidence. In Heck, the Supreme Court had held that a § 1983 action could not be brought by a prisoner if a ruling in the case would "necessarily imply the invalidity of his conviction or sentence." 512 U.S. at 487. Skinner's argument is that Heck does not apply where a prisoner merely hopes or expects that a favorable decision in his § 1983 suit might give him a basis for a collateral attack on the conviction or sentence in the future. Skinner cited for support the more recent case of Wilkinson v. Dotson, 544 U.S. 74, 78 (2005), in which the Court had held that prisoners could challenge the constitutionality of state parole procedures in an action under § 1983 seeking declaratory and injunctive relief and that they were not required to instead seek relief exclusively under the federal habeas corpus statutes.
The arguments before the Supreme Court again highlighted the importance of postconviction DNA testing and the divergent ways that different states, and different prosecutors within the states, handle requests for such testing. In a recent article appearing in the Washington Post, see Robert Barnes, Supreme Court Confronts Conflicting Laws on Post‑Conviction DNA Testing, http://www.washingtonpost.com/wp‑dyn/content/article/2011/02/13/AR2011021303415.html?hpid=topnews&sid=ST2011021400583 (Feb. 14, 2011), it was reported that in recent years, hundreds of convicted prisoners around the country have been exonerated by DNA evidence, including 21 since 2007 in the Dallas, Texas, area alone, where the local district attorney has taken the position that postconviction DNA testing is always appropriate as long as there is some possibility that the evidence could show innocence. Dallas County District Attorney Craig Watkins went on record as stating, "If he's guilty, then the system worked. If he's not, then it didn't work, so let's fix it. I don't see the rationale in blocking a test where there's a legitimate question of innocence." Id. Other attorneys have further pointed out that the cost of testing for DNA is invariably lower than the cost of litigating a prisoner's request for DNA testing. Under Watkins's approach, two prisoners in Dallas, who had served prison sentences of 27 and 30 years respectively, were freed after their requests for DNA testing had been granted and the tests on the evidence proved that they had not committed the crimes for which they were convicted.
The prosecutor in the Skinner case represents the opposite viewpoint from that of Watkins, as she asserts that the Texas procedure for obtaining evidence is ample and reasonable and that Skinner has been given ample opportunity to show that additional testing could prove his innocence but he has simply not done so. That viewpoint reflects the limited policies regarding postconviction access to DNA testing in a number of states, which either have no law governing the issue, such as Massachusetts and Oklahoma, or have statutes that present significant hurdles to an individual seeking such testing, such as Texas. For example, despite the fact that 11 of the first 225 individuals to be proven innocent through DNA testing had been convicted as a result of a guilty plea, many state laws still do not permit access to DNA when the defendant originally pleaded guilty. Some state laws fail to require full, fair, and prompt proceedings once a DNA testing petition has been filed or do not allow individuals to appeal denied petitions for testing. Other states fail to include adequate safeguards for the postconviction preservation of DNA evidence so that testing might be performed in the first instance.
Eventually the precise constitutional contours of the right of prisoners to postconviction DNA testing will have to be established by the Supreme Court. The Court's forthcoming decision in Skinner promises to be just one step in that process.