High court hears convict’s appeal in DNA case

WASHINGTON — Can a federal civil rights law be used to assert a prisoner’s right to access DNA evidence from his trial for testing?

The U.S. Supreme Court Wednesday heard §1983 arguments in the case of Henry Skinner, a Texas inmate on death row for killing his girlfriend and her two sons in 1993.

The district court had dismissed Skinner’s §1983 claim, holding that such actions must be pursued via habeas corpus petitions, and the 5th Circuit affirmed. The high court granted a stay less than an hour before Skinner was to be executed, and subsequently granted his petition for certiorari.

Evidence never tested

Robert C. Owen, a clinical professor at the University of Texas School of Law in Austin who was appointed to represent Skinner, argued that a §1983 claim is distinct from a habeas corpus action because it isn’t necessarily aimed at overturning a conviction. In this case, his client seeks only to access DNA evidence to be tested.

“[If we get] the relief that we are seeking, access to the evidence for testing, … it does not necessarily imply [that] the conviction is lawfully invalid,” Owen said.

Justice Samuel Alito Jr. seemed skeptical.

“In the real world, a prisoner who wants access to DNA evidence is interested in overturning his conviction,” Alito said.

Justice Sonia Sotomayor asked Owen how the case differed from the 2009 case D.A.’s Office for Third Judicial District v. Osborne, in which the court rejected the defendant’s claim that he had a substantive due process right to access DNA evidence under §1983. In that case, the defendant also declined to seek DNA testing at trial.

“You had an opportunity to ask for it and gave it up, and you lost,” Sotomayor said. “So how are we getting to that here? How are you going to get past Osborne here?”

“The Texas statute was enacted to grant, essentially, protection to a class of inmates who were wrongfully convicted and can prove that with DNA evidence,” Owen said. “And [the Texas court] then interprets that statute in a way that needlessly chops a bunch of those inmates out.”

Chief Justice John G. Roberts, Jr. asked if Owen was undercutting his argument that this is not a claim normally reserved for habeas petitions.

“You say in [your complaint] that you [were prevented] from gaining access to exculpatory evidence that could demonstrate he is not guilty of capital murder, which is usually what habeas corpus is for: To show you are not guilty of what you are in prison for,” Roberts said.

“If we knew today that this evidence in fact was exculpatory, if they had already done the testing and they mailed us a report that says [it has] excluded your guy, then we wouldn’t file a §1983 action,” Owen said.

Habeas claim?

Gregory S. Coleman, a partner in the Austin office of Yetter Coleman arguing on the prosecutor’s behalf, noted that Brady claims must be asserted via habeas petitions.

“When you file a Brady claim, you don’t know exactly what it is and whether it will definitely be exculpatory or not,” Coleman said.

Justice Antonin Scalia expressed doubt that the existence of habeas should be a bar to all other claims.

“I’m not sure, however, that we ought to say what you propose: That the test is whether it could be brought in habeas,” Scalia said. “You can bring anything in habeas. [But] you couldn’t win in habeas with this claim because you couldn’t show that it would have affected the outcome. Isn’t that so?”

“The question is not whether you win, but whether you could,” Coleman said, noting that, “Congress has demanded that all of the safeguards and protections for habeas be in place.”

When Justice Ruth Bader Ginsburg asked whether ruling in the prosecutor’s favor would broaden habeas, Coleman said no.

“This is not an expansion of habeas,” Coleman said. “It’s simply a recognition that he has a claim that he can bring in habeas. It probably is a loser, and we think it would be a loser. But the question is, can he bring it and if he can, it should be subject to” habeas.

Too incapacitated to kill?

Skinner was convicted and sentenced to death for the murder of his live-in girlfriend Twila Busby and her two developmentally disabled sons.

Busby and her sons were found in her Pampa, Texas, home bludgeoned, choked and stabbed with an axe in 1993. Police did not find Skinner at the scene but followed a blood trail several blocks away to a trailer, where he was found in blood-stained jeans and socks. DNA testing showed that the blood on his clothing was a mixture of his own, Busby’s and her sons’.

At trial, Skinner argued that he was too incapacitated by alcohol and codeine to commit the murders. He blamed Busby’s uncle, whose alleged sexual advances Busby had recently rebuffed.

Prosecutors conducted DNA testing on some, but not all, evidence collected at the crime scene. Skinner’s lawyer made a strategic decision not to seek DNA testing on the remaining evidence, instead arguing that sloppy investigative work by the police created reasonable doubt. The jury convicted Skinner of capital murder and sentenced him to death.

Skinner sought post-conviction relief under a Texas law that allows those convicted of crimes in some circumstances to test DNA evidence that may be exculpatory. But a state court denied his motion because he did not seek to test the evidence at trial.

Skinner then filed a §1983 action in federal court claiming the prosecutor violated his constitutional rights by refusing to give him access to the DNA evidence.

A decision is expected by the high court later this term.

The case is Skinner v. Switzer, 09-9000.

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