By David Protess
May 24, 2010
After coming within 47 minutes of an executioner's needle that would have paralyzed his lungs and stopped his heart, Hank Skinner now has plenty of time to breathe.
The U.S. Supreme Court announced this morning at 10:06 Eastern that it will decide whether the Texas death row inmate is entitled under federal civil rights law to request DNA tests on the biological evidence in his case. The decision, expected during the Court's 2010 term that begins in October, may determine not only Skinner's fate, but also the hopes of scores of prisoners seeking post-conviction DNA testing.
While today's order was unsigned, at least four justices had to support it. In a similar case last year, three justices -- John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer -- said that federal civil rights law included the right to seek DNA testing. It is likely that President Barack Obama's pick for the high court, Justice Sonia Sotomayor, provided the fourth vote.
It also is possible that justices from the so-called conservative bloc agreed to hear the case. That is because several of those justices last term expressed concern about the striking disparity in the way federal appellate courts have ruled on issues of this kind. For example, only the Fourth and Fifth Circuit Courts of Appeal have consistently barred DNA testing under civil rights law, while five other judicial circuits have permitted it.
The Skinner case was decided by the Fifth Circuit, which includes Texas, Mississippi and Louisiana. The Supreme Court will either reject the position of that circuit and set standards for access to DNA testing or adopt its precedent and narrow the right to post-conviction DNA testing. Solictor General Elena Kagan, President Obama's selection to replace retiring Justice Stevens (who has indicated his opposition to the death penalty), may significantly affect the outcome of the case.
"We are pleased that the Supreme Court has agreed to hear Mr. Skinner's appeal," said Rob Owen, one of Skinner's lawyers. "That decision represents the necessary first step to our eventually obtaining the DNA testing that Mr. Skinner has long sought. We look forward to the opportunity to persuade the Court that if a State official arbitrarily denies a prisoner access to evidence for DNA testing, the prisoner should be allowed to challenge that decision in a federal civil rights lawsuit."
In its petition to the Supreme Court, Skinner's legal team identified seven items they want tested from the Pampa, Texas crime scene in which a woman and her grown sons were murdered on New Year's Eve of 1993. The items are vaginal swabs, fingernail clippings, two bloody knives, a blood-stained dish towel, a windbreaker similar to one worn by an alternative suspect in the case and hair found in the female victim's hand.
Limited DNA testing conducted before the trial placed Skinner at the scene, but toxicology tests and a witnesses' testimony indicated he likely was unconscious at the time of the crime. Additional DNA testing following the trial showed that one hair found in the victim's hand, blood on the front sidewalk and on a cassette recorder all excluded Skinner. One week after the exculpatory evidence was revealed, the Gray County DA's Office refused to conduct further tests and impounded the evidence.
Skinner, 47, has consistently professed his innocence and has publicly requested DNA analysis of the untested evidence for more than a decade. But state and federal courts in Texas have denied him access to the tests, ruling that any testing should have been done before the trial and declaring that Title 1983 of federal civil rights law is not relevant.
The Supreme Court's decision today should eventually resolve these issues, opening the door -- or closing it -- to scientific testing as a civil right.
(Updated May 24, 2010 10:39 a.m. CST)