DNA: a civil right?

The Houston Chronicle has an interesting article related on DNA as related  to the Skinner case. It discusses that the United States Supreme Court (USSC) must consider if inmates’ requests for DNA testing can be handled as civil rights claims — a question that has split the nation’s top federal courts.

The USSC on Thursday stayed Skinner’s execution to consider taking up his lawyers’ writ of certiorari seeking review of a lower court’s rejection of Skinner’s civil rights request for DNA testing. Skinner’s lead attorney, Rob Owen of the University of Texas’ Capital Punishment Center, called on the court to resolve the question, noting that, now, five circuit courts allow civil rights claims, two do not, and five others are undecided. The Court has not yet scheduled its consideration of his pending appeal (Skinner v. Switzer, 09-9000; his stay application was 09A743).

The New Orleans-based 5th Circuit U.S. District Court denied Skinner’s request for DNA testing of bloody knives, material found beneath his victim’s fingernails, rape kit samples, and other items found at the crime scene in the Panhandle town of Pampa. Skinner, 47, was condemned for the Dec. 31, 1993, murders of his girlfriend, Twila Busby, and her two adult sons.

Skinner is seeking to raise an issue that the Justices had agreed to review last Term in District Attorney’s Office v. Osborne (08-6).  The Court decided the Osborne case on June 18, 2009, but left unresolved that specific issue.  The question is whether a state inmate seeking access to and testing of DNA evidence may pursue that claim under civil rights law (Section 1983), rather than in a federal habeas challenge.  Skinner’s lawyers contend that he has tried unsuccessfully to use Texas state rules for DNA testing, so his only remaining chance to get it is through a civil rights claim.

Adam Gershowitz of the University of Houston Law Center said it is “very likely” the court will take up the case. “The issue has brewed for a long time,” he said. “There’s been a lot of controversy between the circuits. … You need five votes to grant a stay and only four votes to take up a review.”

Prisoners who want the courts to order DNA testing can send the requests in the form of habeas corpus filings or as Section 1983 civil rights claims. But, said Gershowitz, making habeas corpus claims for DNA testing at the federal level rarely is successful. That’s especially true when petitioners attempt to introduce new issues that the defendant’s lawyer failed to raise at trial. Those are considered forfeited. Federal courts, he said, don’t want to step in at the last minute and reverse a case, especially if the state court hadn’t had an opportunity to look at all the issues,” Gershowitz said. “They consider it the petitioner’s fault for not bringing up the issues earlier.”

The latter of course, does not make sense anymore with modern forensic technology’s progress. Decades ago we could only blood type, now we have DNA. Decades ago we needed the fingerprint or at least 12 points for identification purposes, now we can make an identification with less. Another example is the progress made in forensic arson detection. More on the latter can be found here in my post on the Cameron Todd Willingham’s case, click here.

At the heart of the controversy over civil rights appeals is whether the prisoner simply is seeking DNA testing of evidence OR is demanding to be released from prison. An effort to be set free typically would be presented as a habeas corpus case, Gershowitz said, while an effort only to get testing could be a civil rights case. The proper route for seeking testing becomes less clear when a prisoner wants to get DNA testing to be freed from prison. “It’s a matter of how formalistically you phrase the question,” Gershowitz said.

Should the Supreme Court opt to review Skinner’s DNA testing case, the results “potentially would be of critical importance, particularly for inmates who had exhausted their habeas remedies,” said South Texas College of Law’s Catherine Burnett. In the meantime, the postponement granted to Skinner last Wednesday will stay in effect until the petition is acted upon and, if granted, until it is decided.  If a review is denied, the postponement will expire automatically and the state could then schedule execution anew.  If review is granted, a ruling would not be expected until next Term, starting next October.

Burnett, a criminal law expert, said she believes the public would be more comfortable with capital punishment if they were assured every effort was made to assess guilt or innocence. And, she suggested, increasing early use of DNA testing in criminal probes should lessen the need for testing requests later in the appellate process.

She said it is understandable that federal circuit courts disagree on civil rights claims for DNA testing. “I think we hadn’t anticipated the use of 1983 civil rights actions in this context,” she said. “Whenever there’s a new legal theory, the courts take different views. The U.S. Supreme Court views the circuit courts as laboratories. It’s where legal issues get tested. … Reasonable people reach different conclusions.”

I think that (post-conviction) access to DNA testing for the condemned should not hinge on how formalistically the question to the courts is phrased.

It should be implied.

Cases from before the DNA era, where evidence has been kept on file, should be reviewed to see whether DNA testing is possible. If so, it should be done. Period. Full stop.

Denying DNA testing because the condemned did not do this on state level and claiming that the right is forfeited, is saying that

  • you do not acknowledge the progress our society has made, and
  • you deny that there is a possibility that anyone involved in the case could, unintentionally have made a mistake, and
  • should such an unintentional mistake have been made it does not matter despite the fact that the government’s sentence is the final one of death.

I cannot accept that train of thought.

If we truly want justice, and all involved in the case have worked diligently and with integrity, nobody should fear DNA testing. Should those tests then show that a mistake was made, the honourable thing to do, is to correct it. Posthumous exoneration is not an option here!

Those who swore to uphold the law and to do justice know in their hearts that denying DNA testing is ignoring the possibility that an innocent person might be executed.  When faced with the final sentence, no stone should be left unturned to make sure we did NOT make a mistake. Anything less is a disgrace to justice, our integrity, and the people’s respect for our professions. I support post-conviction access to DNA for all prisoners.