Earlier this week, Ron Bailey blogged about the Supreme Court's decision in Skinner v. Switzer. Like Bailey, I was initially encouraged by the ruling, which some sources reported as granting Texas death row inmate Hank Skinner the right to post-conviction DNA testing under federal civil rights law. (Skinner was convicted of killing his girlfriend and her two sons. I wrote about his case in February 2010.) But the ruling is actually quite a bit more narrow than that. What it does is allow Skinner to argue court that Texas' law on post-conviction DNA testing is incompatible with federal civil rights law. There's no guarantee that he'll win.
Skinner was forced to argue for testing under federal civil rights law because the Court already ruled in 2009 that there's no constitutional right to post-conviction DNA testing, even if it such tests could establish actual innocence. Part of the Court's reasoning in that case, which is also an argument Justice Thomas makes in his dissent in Skinner's case, is that to force the states to allow post-conviction DNA testing would allow guilty defendants to game the system. They could forego DNA testing at trial, then bring the matter up after they've exhausted their appeals, buying them more time.
My first reaction to this argument is so what? Particularly in death penalty cases, you're looking at a few thousand dollars and a few added months for DNA tests. That hardly seems like much of a burden for the state to bear, considering that we're talking about executing someone.
My second reaction, which I argued last year in Slate, is that we could avoid these disputes going forward if state legislatures would simply pass a law instructing police and prosecutors to test all crime scene DNA that's relevant to the case. In some cases, prosecutors may not like such a policy, because it could show other people were at the scene, which could complicate their case. In some cases, defense attorneys may not like it, because it could pretty conclusively establish their client's guilt. But if the criminal justice system is really about finding the truth, I can't quite understand why the default policy in every case wouldn't be that law enforcement to collect all the relevant evidence and send it off for testing. The state and the defense would build their cases under the assumption that every piece of remotely relevant biological evidence would be DNA tested.
My third reaction to the "gaming the system" argument is that things aren't always as simple as they seem. And the Hank Skinner case is a good example. It's true that Skinner's attorney declined to ask for DNA testing during Skinner's trial. And it's true that Skinner is now asking for that testing post-conviction. But here are some facts about Skinner's case that complicate things:
- The only crime scene evidence that was tested for DNA was smeared (not splattered) blood on Skinner's clothing, which tested positive for the victims. But Skinner's defense attorneys say he was near-comatose or comatose from an alcohol and codeine overdose when the murders occurred. He woke up to find the bodies. So the only DNA results we have help the prosecution because they put the victims' blood on Skinner. But those results are also consistent with Skinner's story.
- Here's the evidence that hasn't been tested: blood from the murder weapons (two knives and an ax); the rape kit and fingernail scrapings taken from Skinner's girlfriend; blood from a windbreaker left at the scene, which witnesses say matches one worn by the man Skinner's lawyers suspect may have committed the crime (a lecherous uncle who had previously harassed and threatened Skinner's girlfriend).
- Skinner sent his attorney a letter specifically requesting that he ask for DNA testing on the remaining evidence. His attorney concluded that such testing would further implicate Skinner, so he declined.
- Skinner's trial attorney was a former prosecutor who resigned after he was caught siphoning money in an asset forfeiture case. He was appointed as Skinner's counsel by a judge who was also a personal friend. In exchange for representing Skinner, the judge ordered Skinner's attorney to be compensated an amount of money roughly equal to what he still owed from his own criminal charges.
- Skinner's attorney actually prosecuted Skinner on minor assault and theft charges back when he was in the DA's office. Those two charges were used as aggravating circumstances to get Skinner the death penalty. The attorney didn't object.
- In 2000, after Skinner advocate David Protess challenged the DA on a talk show, the state actually did conduct preliminary mitochondrial DNA testing on hair fibers Skinner's girlfriend was clutching in her hands at the time of her death. When those tests showed that the hairs belonged to neither Skinner nor the victim, the state halted any further testing, of the hair fibers or any other evidence.
So in the very case in which Justice Thomas argues that allowing a challenge to a state's post-conviction DNA testing laws under federal civil rights law would allow convicts to game the system, a look into the details of the case show a defendant who was actually deprived of exculpatory DNA testing during his trial, through no fault of his own, even though the official court record indicates he declined to request such testing.
Just to be clear, I'm not arguing that Skinner is innocent. The remaining DNA tests may well establish his guilt beyond all doubt. I just find it abhorrent that when it comes to the actual guilt of a man they want to execute, the state of Texas is spending hundreds of thousands of dollars arguing a position of willful ignorance.