Private: DNA Before the Court, Again

By Brandon L. Garrett, a professor at the University of Virginia School of Law and author of the forthcoming book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong.

This week the U.S. Supreme Court heard arguments in Skinner v. Switzer, concerning a request for DNA testing by an inmate, convicted of murders and on death row in Texas. Prosecutors have opposed the DNA tests and intend to proceed with an execution.

Why does this scenario sound familiar? Because Hillary Swank is currently starring in a major motion picture about the true story of how Betty Anne Waters put herself through law school and fought for years to obtain DNA tests that ultimately proved her brother’s innocence?

Because just last term the Court decided Osborne v. District Attorney’s Office, in which the state of Alaska successfully opposed DNA tests that it conceded could resolve the question of an inmate’s innocence?

Because in 2006, the Court decided House v. Bell, in which a death row inmate sought relief based on evidence of innocence including DNA, and following the Court’s remand, he obtained DNA tests that led to his exoneration?

I could travel farther back in time, as I do in a book, “Convicting the Innocent: Where Criminal Prosecutions Go Wrong,” forthcoming from Harvard University Press next Spring, which examines what went wrong in the cases of the first 250 people exonerated by DNA testing.

It took on average of 15 years for those 250 people to be exonerated. Much of that delay occurred as they tried for years to obtain DNA tests. Along the way, the U.S. Supreme Court denied 37 cert. petitions filed by persons who were later exonerated by DNA testing. It granted one, that of Larry Youngblood, and ruled that although police mishandled biological evidence in his case, they did not act in bad faith, and besides, that evidence would not have helped his case. Years later DNA testing on that same evidence proved his innocence too.

This is not to say that Skinner is innocent. In such murder cases, it is not always as clear whether crime scene evidence can be definitively linked to the culprit. Whether he is innocent or guilty, the State should have a legal (and ethical) obligation to test that evidence before executing him. Indeed, prosecutors initially started to have a lab test the various pieces of evidence, but apparently when some of those tests excluded him, they did no more. Skinner had begged his trial lawyer to get DNA tests at the time of his trial, but his lawyer, who as a district attorney prosecuted Skinner, refused. The Texas courts ruled that his trial lawyer’s decision as a matter of “strategy” disposes of the DNA request. Yet, the Texas statute says that a convict who did not get DNA testing at trial “through no fault of his own” is entitled to DNA tests “in the interests of justice.”

In a few cases, federal courts have entertained Section 1983 requests for DNA testing, like Skinner’s. Some of those inmates proved their innocence. That is why Skinner’s case is important. As Colin Starger has shown, less than two-dozen such requests have been granted.

Most states now have statutes ensuring access to post-conviction DNA testing. Most prosecutors sensibly agree to tests. They know that DNA tests not only can prove innocence, but they can also identify the true culprit – as they have done in 112 of the 250 exonerees’ cases.

Yet even states that, like Texas, have fairly broad post-conviction DNA access laws, sometimes continue to arbitrarily deny tests to inmates who could prove their innocence. Skinner argues that Texas did exactly that.

The question before the Court and the oral arguments focused on arcane issues surrounding the doctrine of Heck v. Humphrey, in which the Court tried to create a bright line between federal habeas corpus petitions, which it defined as actions seeking to challenge a criminal conviction, and Section 1983 cases, seeking other relief for constitutional violations. Since deciding Heck, the Court has made clear that cases that do not “necessarily” imply invalidity of the conviction may be brought under 1983. The answer under Heck should be clear. Skinner’s claim cannot invalidate his conviction or hasten his release. If the DNA tests are done and do support a claim for innocence, he must still obtain habeas relief or a pardon.

Last Term in Osborne, the Court declined to address this Heck issue – but recognized a procedural due process right not to be arbitrarily denied DNA testing under state law. Whether the Court revisits the contours of that right in Skinner’s case or not, Section 1983 should be clearly recognized as an avenue to obtain DNA testing. Otherwise, there will be no recourse if states carelessly and arbitrarily deny DNA testing to those who might prove innocence. Just as in the cases of the first 250 exonerees, over time those wrongful convictions will continue to come to light, undermining faith in the accuracy of our criminal justice system, but also in those post-conviction judges that needlessly prolonged efforts to uncover the truth.  

Civil rights, Constitutional Interpretation, Criminal Justice, Equality and Liberty, Supreme Court