Supreme Court

More on the Supreme Court and DNA Testing

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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.

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  1. I guess this is why there’s no “CSI:Houston” show.

    1. No one wants to watch a bunch of fat Mexicans, blacks, and whites waddling around the concrete jungle and suburbs.

  2. But if the criminal justice system is really about finding the truth…

    Where on Earth did you get that idea?

  3. Just when you think Texas has some good things going for it (new law in legislature re: congressmen skipping town before a vote) you get the Balko nutpunch reminder.

  4. To play Devil’s Advocate: it seems like a no-brainer to allow DNA testing in older cases where such DNA tests were technology that had not yet been developed.

    But, it seems to me that Thomas has a point — if the defense during the trial has the right to demand DNA testing, and chooses not to exercise that right (as opposed to asking for testing and being turned down), then allowing such testing upon appeal is likely to lead a rational defense attorney, knowing good and well her client is guilty and will be convicted, to deliberately refuse to test for DNA so as to buy the defendant a bit more time to file a frivolous appeal for testing that they had every right and opportunity to request prior to trial.

    Again, not arguing about cases where the request to test for DNA was denied, or cases where a clearly incompetent public defender fresh out of law school just plain blew it. Those should get the post-conviction DNA testing.

    Rebuttal? Is there something I’m missing here?

    1. That’s where I’d make my argument that all relevant biological evidence should be DNA tested early on. It’s pretty ridiculous that this isn’t the case already.

      But again, I don’t find the “buying time” argument persuasive. It only takes a few months. It only gets dragged out when the state opposes it. If Congress or the S Ct were to say there is a right to testing under federal law, there would be no more challenges.

      And I’m not sure how you determine whether a defense attorney’s decision not to seek testing was good strategy or incompetence. This case seems like clear-cut incompetence, yet the Texas courts have already deemed it was strategic.

      1. I think you are right. Test everything up front and it isnt a issue.

        As things are now, defense can choose not to test, hope for a not guilty verdict, then test later and ask for dismissal. However, in that situation, why wouldnt the prosecution test? Because the only reason I can see the defense doing that is if you think the DNA test will increase the chance of a guilty verdict, in which case the later testing seems worthless (although I guess you can hope for a false negative).

        1. However, in that situation, why wouldnt the prosecution test?

          In that situation why would they? The prosecution doesn’t want the test because they already have the conviction and there is nothing to gain but a lot to potentially lose. Even if you think the reason the defense didn’t test was because they thought it really was the defendant’s there’s still some chance it isn’t. Why roll the dice, even if they’re loaded in your favor, when you’ve already “won”? It’s not like they care about actual innocence or guilt.

          Either way, this is why testing should have nothing to do with either prosecution or defense strategy.

          1. good point. unfortunately, in our adversary system, the search for truth takes a backseat to strategy. that’s true in everything from jury selection to what you mention.

            an investigator at a scene should seek out evidence, whether exculpatory or incriminatory. sadly, that doesn’t always happen

            and in court, the games continue

          2. “The prosecution doesn’t want the test because they already have the conviction and there is nothing to gain but a lot to potentially lose.”

            Yeah, they may lose the opportunity to murder an innocent person. Any prosecutor who hides exculpatory evidence, or precedes with charges despite clear exonerating evidence in a death penalty case should be tried for conspiracy to commit murder.

      2. It’s pretty ridiculous that this isn’t the case already.

        Absolutely. It’s beyond ridiculous. I had just assumed any competent investigation would thoroughly analyze all crime scene evidence. Do they sometimes not bother to check fingerprints too? I find it beyond comprehension that you could have blood at any violent crime scene, much less on the murder weapon itself, and not have it DNA tested. And to not check the DNA from the rape kit!? Seriously? How is that even possible?

        Here’s another way to get around this problem: a presumption that it isn’t the defendant’s until the state proves otherwise. That way, if there’s biological evidence found, the state would have to test it or it would be legally the same as if they had tested it and it turned out to belong to someone else.

        1. ” a presumption that it isn’t the defendant’s until the state proves otherwise.”

          Oh, come on! Next your going to want them to presume the suspect is innocent until guilt is proven beyond a reasonable doubt.

        2. The most disgusting thing here is that the investigators and prosecutors don’t go out of their way to find exculpatory evidence. They are willing to put aside what should be reasonable doubt about guilt to advance their own careers.

      3. It seems to me that testing should be done immediately upon the discovery of a crime scene, so that potential suspects could be possibly thinned out early on. Have the analyses sitting there, ready to compare. Competent attorneys for suspects not charged could advise testing for their clients and have the results compared by an independent lab.

        Selling this to police departments and prosecutors’ offices as a way to reduce costs in the long term and improve conviction rates (by putting the right person on trial in the first place) might be a good way to approach this.

        It’s sad that the benefit to justice (actually prosecuting the right people rather than blindly racing to convict someone) seems to be outweighed in many cases by prosecutors’ desire for convictions.

      4. And I’m not sure how you determine whether a defense attorney’s decision not to seek testing was good strategy or incompetence. This case seems like clear-cut incompetence, yet the Texas courts have already deemed it was strategic.

        What would have happened to the attorney had he sought the testing and it came back positive ?

    2. Is there something I’m missing here?

      Not really. Thomas is applying a very old rule that failure to raise a timely defense is a waiver of that defense. Like most common law due process, it is eminently sensible, for just the reasons you bring up.

      While there is a very large interest in having justice that is accurate, there is also a large interest in having justice that is final. That rule is intended to give finality to court decisions.

      Now, when we’re dealing with criminal cases, and especially death penalty cases, you might strike the balance differently. DNA testing might be an exception.

      But Thomas is also aware, I am sure, that you can’t ever make just one exception; that as soon as you let one it, next thing you know all its friends are over, watching your pay-per-view and drinking your beer. So he’s leery of exceptions to these kinds of rules.

      Here’s another way to get around this problem: a presumption that it isn’t the defendant’s until the state proves otherwise.

      That’s exactly what the current burden of proof requires.

      Now, having said all that, its hard to argue with Radley that bio evidence should be routinely DNA tested early on.

      1. That’s exactly what the current burden of proof requires.

        But it isn’t. The case in question has blood on the murder weapon and presumably DNA in the rape kit that wasn’t tested. I was suggesting that when that evidence exists, failure by the state to positively connect it to the defendant, either by testing and failing to match, or by not testing, should be legally the same.

        At any rate, I think the better solution is to always test all crime scene evidence without regard to trial strategy for either side.

  5. This is an incredibly interesting article! I’m glad I woke up today.

  6. You’d think people for or against the death penalty would be in favor of testing. Those against want to get people off death row if possible, that much is established. But I would think people who favor the death penalty as a viable punishment for crime would want those who may be innocent to also be taken off death row so no one can say “this state executed an innocent person” making the case against the death penalty stronger.

    Excellent work, Radley.

  7. Then you have to consider the cases where the prosecutor actively tries to block dna testing during trial. If scotus ruled that defendants have a right to post conviction dna testing then it would make it difficult for prosecutors who block dna testing to begin with.

  8. clicked sumbit too soon…

    And in these cases it could end up saving the state money if people who want dna testing get it and don’t have to go through the endless appeals process to prove their innocence.

  9. Here’s the evidence that hasn’t been tested: . . . the rape kit and fingernail scrapings taken from Skinner’s girlfriend

    WTF?!?!?! Wouldn’t that be the absolute BEST evidence to test for purposes of identifying the perpetrator of the crime?!? The blood on the defendant’s clothes only establishes he was present, not what role he played in the whole thing.

    1. And here you see the evidence that prosecutors don’t care if they get the right guy. They just want to convict someone.

  10. Skinner’s trial attorney was a former prosecutor who resigned after he was caught siphoning money in an asset forfeiture case.

    Save prosecutors from themselves, end asset forfeiture!

  11. Howdy, welcome to Texas. Who do ya’ll thank, gave you Bush Sr and GW jr?

    Ain’t nothing but ignorant cattle down here way.

    1. Texas? Only steers and queers come from Texas!

  12. The real lesson here is, if you wake up to find your girlfriend/spouse/SO and your/their kids murdered….DON’T TOUCH ANYTHING. Don’t even get off the couch.

  13. I’m not a lawyer, but I’ve watched My Cousin Vinny, so it seems to me that the cross-examination by a half-way competent defense attorney should have went something like this:

    DEFENSE ATTORNEY: Did you match the DNA from the rape kit to the defendant?

    FORENSIC INVESTIGATOR: No.

    DEFENSE ATTORNEY: Did you match the DNA from under the victim’s fingernails to the defendant?

    FORENSIC INVESTIGATOR: No.

    DEFENSE ATTORNEY: Did you did match the blood smeared on the defendant’s clothing to the victim?

    FORENSIC INVESTIGATOR: Yes.

    DEFENSE ATTORNEY: So, all you proved was that, at some point, somebody touched the victim’s blood, and then touched the defendant’s clothing?

    FORENSIC INVESTIGATOR: Yes, but?

    DEFENSE ATTORNEY: Your Honor, I have no further questions for this witness.

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