Monthly Archives: October 2010

After Osborne: Supreme Court returns to the issue of postconviction DNA testing

Within a fortnight, the Supreme Court will hear argument in Skinner v. Switzer, No. 09-9000. The case began with a triple murder — a mother and her two sons in the Texas Panhandle town of Pampa — on New Year’s Eve 1993. The U.S. Court of Appeals for the Fifth Circuit described the murders and some of the subsequent events as follows:

[Hank] Skinner lived with his girlfriend Twila Busby and her two mentally retarded sons, Randy Busby and Elwin Caler. Trial evidence showed that Twila left Skinner passed-out-drunk at home while she attended a New Year’s Eve party from about 10:30 to 11:15 p.m. [She left early because her drunken uncle, Robert Donnell, was making rude sexual advances toward her.] At midnight, a police officer found Elwin on a neighbor’s porch with multiple stab wounds; he died shortly thereafter in the hospital. The police found Twila’s dead body in her living room, where she had been strangled to unconsciousness and beaten with a blunt object at least fourteen times. Randy lay dead in the upper bunk of his bedroom with three stab wounds in his back.

Three hours later, the police located Skinner at the home of an ex-girlfriend, Andrea Reed. Reed testified that Skinner arrived at midnight, appeared intoxicated, threatened to kill her if she called the police, and told her that he had kicked Twila to death. DNA testing showed that blood on Skinner’s clothing belonged to Twila and Elwin, and he had a gash on the palm of his right hand.

Skinner presented evidence that he was too intoxicated, from alcohol and codeine, to have committed the murders. An expert testified that, based on blood-alcohol levels, Skinner should barely have been able to walk, let alone commit three murders. Skinner also argued that Robert Donnell, Twila’s uncle, was the murderer.

Skinner v. Quarterman, 576 F.3d 214, 216 (5th Cir. 2009).1/ But according to the University of Texas law school clinic representing Skinner:

For ten years, Skinner has sought . . . DNA testing on vaginal swabs and fingernail clippings taken from [Twila] Busby at the time of her autopsy, two knives recovered at the home, a hand towel found with one of the knives, a man’s windbreaker jacket found next to Busby’s body, and some human hairs from Busby’s hands. Of these items, only a few of those hairs have been previously DNA tested, and the results of those tests were inconclusive.

After failing to obtain such access though repeated formal and informal requests, as well as two separate state court proceedings under Texas’ post-conviction DNA testing statute, Skinner filed suit against Gray County District Attorney Lynn Switzer in November 2009. Skinner invoked 42 U.S.C. � 1983, alleging that the refusal to grant him access to the evidence under Texas’ DNA testing statute was so arbitrary as to deny due process of law. The district court dismissed Skinner’s lawsuit, and the Fifth Circuit affirmed, both relying on a 2002 decision in which the Fifth Circuit had determined that such an action could proceed only as a habeas corpus petition, not as a civil rights lawsuit.

That legal conclusion, shared by the Fourth Circuit, is at odds with the view of six other federal Courts of Appeals . . . .

Capital Punishment Clinic Heads Back to U.S. Supreme Court for the Fourth Time in Four Years, UT Law.

The issue before the Supreme Court is thus a narrow procedural point. It is whether “”a prisoner’s request for DNA testing of evidence relevant to his prior conviction is ‘so intertwined’ with the merits of the conviction as to require habeas corpus treatment.” Kutzner v. Montgomery County, 303 F.3d 339, 341 (5th Cir. 2002). Skinner already had challenged the state conviction in two federal petitions for a writ of habeas corpus alleging ineffective assistance of counsel and other errors in the state trial. After the federal courts rejected these claims, Skinner turned to the federal civil right statute, 42 U.S.C. � 1983, alleging that the current district attorney, Lynn Switzer, was violating his constitutional rights ‘[b]y refusing to release the biological evidence for testing, and thereby preventing [Skinner] from gaining access to exculpatory evidence that could demonstrate he is not guilty of capital murder.'” J.A. 20-21.

The huge problem with this claim is the Supreme Court’s decision just last year in District Attorney’s Office for Third Judicial Dist. v. Osborne, 129 S.Ct. 2308 (2009). As discussed in a previous posting (The Right to Post-conviction DNA Testing After District Attorney’s Office for the Third Judicial District v. Osborne, Oct. 9, 2009), Osborne held that when other postconviction remedies that might allow a convicted offender to obtain DNA evidence for additional testing had not been pursued, due process does not provide for a free-standing right to DNA testing. Skinner seeks to circumvent this obstacle by arguing that he has the “procedural” due process right to a fair application of the Texas statute allowing postconviction DNA testing. He emphasizes that the federal district court never reached this question because it considered the claim as cognizable only in a habeas action.

Suppose he is right–he may challenge, under � 1983, the state’s refusal to order additional DNA testing as fundamentally unfair. The Supreme Court then should remand the case to allow him to present this challenge to the lower federal courts.

Yet, such a victory could well be pyrrhic. The Texas DNA statute requires “a reasonable probability . . . that he would not have been prosecuted or convicted if the DNA test results were exculpatory,” Tex. Code Crim. Pro. Art. 64(a)(2)(A), and when the desired DNA testing was not undertaken “through no fault of the convicted person, for reasons that are of a nature such that the interests of justice require DNA testing.” Id., Art. 64.01(b)(1)(B). These restrictions seem to be constitutional, and the Texas courts found that Skinner’s petition failed to satisfy the necessary “reasonable probability” and “no fault” conditions. In holding that trial counsel performed adequately, the Fifth Circuit noted that 

counsel explained that he did not request DNA testing of the additional evidence because of the risk that such testing would reveal that the DNA was Skinner’s instead of Donnell’s or some other person’s. Contrary to Skinner’s contention that counsel had “nothing to lose” and “everything to gain” from DNA testing, evidence of Skinner’s DNA, such as on a knife handle or under Twila’s fingernails, would have been highly probative, incriminating evidence for the prosecution.

Skinner v. Quarterman, 528 F.3d 336, 341 (5th Cir. 2008).

This sounds much like Osborne. Osborne’s trial counsel did not press for VNTR testing to provide more definitive results than those that came from the state’s DQA testing because she feared that it would deprive Osborne of the argument that the state’s test was inconclusive. Justice Alito, joined by Justices Kennedy and Thomas, maintained that the belated demand for DNA testing under � 1983 was nothing more than “an attempt to game the system.” They wrote that

When a criminal defendant, for tactical purposes, passes up the opportunity for DNA testing at trial, that defendant, in my judgment, has no constitutional right to demand to perform DNA testing after conviction. Recognition of such a right would allow defendants to play games with the criminal justice system. A guilty defendant could forgo DNA testing at trial for fear that the results would confirm his guilt, and in the hope that the other evidence would be insufficient to persuade the jury to find him guilty. Then, after conviction, with nothing to lose, the defendant could demand DNA testing in the hope that some happy accident-for example, degradation or contamination of the evidence-would provide the basis for seeking postconviction relief. Denying the opportunity for such an attempt to game the criminal justice system should not shock the conscience of the Court.

129 S. Ct. at 2329.

NOTES

1. An earlier Fifth Circuit opinion elaborates as follows:

In March 1995, a jury convicted Skinner of murdering his girlfriend, Twila Busby, and her two mentally retarded sons, Randy Busby and Elwin Caler, on New Year’s Eve of 1993. Twila, Randy, and Elwin were strangled, bludgeoned, and stabbed in their house shortly before midnight.

At midnight, a police officer found Elwin, in bloodstained undershorts, sitting on the porch of a neighbor’s house with stab wounds under his left arm and on his right hand and stomach. He was taken to a hospital and died shortly thereafter. Investigating Elwin’s stabbing, the police went to the home where he lived with Twila, Randy, and Skinner. The police noticed a trail of blood on the ground running from the front porch to the fence line, a blood smear on the glass storm door, and a knife on the front porch. They found Twila dead on the living room floor. She had been strangled into unconsciousness, then beaten on the head with a blunt object at least fourteen times. A bloodstained axe handle and plastic trash bag containing a knife and bloody towel lay nearby. She exhibited signs of recent sexual intercourse. In a bedroom, officers found Randy dead in an upper bunk. His body was lying face down, and he had been stabbed three times in the back.

On the door frame between the bedroom and a utility room, officers found a bloody hand print roughly two feet above the floor. Bloody prints were also found on the door knob of the door connecting the utility room to the kitchen and on the doorknob of the utility room door opening to the backyard. The prints were Skinner’s.

Suspecting Skinner, the police sought and found him at 3:00 a.m. in the house of Andrea Reed, his former girlfriend, standing in a closet wearing heavily bloodstained jeans and socks and bearing a gash on the palm of his right hand. DNA testing showed that blood on Skinner belonged to Twila and Elwin. Skinner appeared intoxicated, and a toxicology test taken at 5:48 a.m. revealed alcohol and codeine. Skinner was arrested, and in a statement to police he claimed not to recall much of what had transpired that evening.

At trial, the night’s happenings were filled in by others. A friend, Howard Mitchell, went to Twila’s and Skinner’s home around 10:30 p.m. to give them a ride to his New Year’s Eve party. When he arrived, Mitchell found Skinner passed out on the couch, apparently drunk. Unable to wake Skinner, Mitchell left with Twila for the party, where she was followed around by her drunken uncle, Robert Donnell, who made rude sexual advances toward her. Twila quickly became agitated by Donnell and had Mitchell take her back home. Mitchell dropped her off between 11:00 and 11:15 p.m. and left without going inside.

The trail of witnesses runs cold during the fateful hour before midnight but picks up thereafter. At midnight, roughly at the same time the police officer found Elwin, Reed answered a knock at the door of her trailer, which was about four blocks from Skinner’s home. Skinner stood outside the door in blood-soaked shirt and pants and wearing socks but no shoes; he told Reed he had been stabbed and shot. He removed his shirt, but Reed could find no injuries except for the cut on the palm of his hand, which she bandaged for him. Skinner stayed with Reed for roughly three hours until the police arrived to apprehend him.

Reed testified that Skinner appeared intoxicated and disoriented and made many inconsistent statements about the causes of his injury and the course of events. Reed tried to call police, but Skinner threatened to kill her if she did. Skinner eventually offered to tell Reed what really had happened if she would promise not to tell anyone; she promised, and Skinner told her he thought he had kicked Twila to death. In a later statement to police, he claimed he woke up on the couch to find someone standing over him with a knife and that he ran out of the house. He also guessed that Twila might have killed her sons and cut him with a knife, but he claimed not to remember plainly.

At trial, Skinner sought first to show that, because of intoxication, he could not physically have committed the murders. An occupational therapist testified that an injury had deprived Skinner of the hand strength that would have been necessary to strangle Twila in the manner described by the medical examiner. A toxicologist testified that the alcohol and codeine in Skinner’s system would have put him in a stupor, and he would not have had the physical coordination to overpower and inflict wounds on the three victims. In rebuttal, the prosecution suggested that Skinner’s long history of drug and alcohol abuse gave him more tolerance for the substances than an average person would have, so he had a greater ability to function under the influence.

Skinner also suggested that Donnell was the murderer. Skinner presented evidence that Donnell was violent and hot-tempered. On the night of the murder, he was seen drunkenly harassing Twila at the party, and Mitchell claimed that Donnell had “a certain kind of hate” in his eyes. Mitchell also reported that when he returned to the party after driving Twila home, Donnell was no longer there. The defense, however, introduced no physical evidence indicating that anyone besides Skinner and the victims had been in the house at the time of the murder. See Skinner v. State, 956 S.W.2d 532, 536-37 (Tex.Crim.App.1997) (reviewing sufficiency of the evidence).

Skinner v. Quarterman, 528 F.3d 336, 339-40 (5th Cir. 2008) (footnote omitted).

FURTHER REFERENCES

Merit briefs

Amicus briefs

Oral argument