A Separation of Courts?

Pennsylvania Law Weekly
June 7, 2010

The U.S. Supreme Court has agreed to hear another post-conviction DNA case, less than a year after having ruled that "constitutionalizing" access to DNA testing would be a mistake.

Henry Skinner is on Texas' death row. In March, he had his last meal and was awaiting execution when the U.S. Supreme Court granted him a stay. The court will now review his claim, presented in Skinner v. Switzer , that he was denied access to evidence that "could," through DNA testing, exonerate him.

In 1995, Skinner was convicted of the brutal strangulation and beating death of his girlfriend and the stabbing deaths of her two adult sons. Skinner asserts that he was intoxicated to the point that he could not have possibly carried out the murders. On the evening of the murders he showed up at a former girlfriend's house in bloody clothing and with a knife wound.

The former girlfriend testified that Skinner said he may have just killed one of the victims and threatened to kill her and her children if she contacted the police.

Skinner contends the murderer may have been the victim's uncle, now deceased, who made inappropriate sexual remarks to the victim the night she was killed. Skinner's attorneys have requested, for DNA analysis, a rape kit performed post-mortem on the victim, fingernail clippings, two knives, and some clothing.

The Texas courts denied the request.

Skinner also filed federal habeas corpus requests, which were also denied, and later sought relief through the federal civil court. He requested the items through a civil rights claim pursuant to 42 U.S.C. 1983.

In 1994, the U.S. Supreme Court established the Heck doctrine. Roy Heck was convicted, in Indiana, of voluntary manslaughter for the killing of his wife. He sought compensation through a 1983 claim for alleged unlawful conduct by the police.

The court ruled in Heck v. Humphrey that a prisoner in state custody may not sue under 1983 to challenge the fact or duration of his confinement. A state offender may only pursue a challenge to his conviction through habeas corpus.

Heck has been the law for nearly 16 years. Last year, the U.S. Supreme Court was faced with a similar issue in District Attorney's Office v. Osborne .

William G. Osborne was convicted of kidnapping and sexual assault in Alaska. He raped, beat and shot a woman near the Anchorage airport. After his conviction, Osborne sought a more conclusive DNA test to challenge evidence used to convict him. Prior to trial, he requested a method of testing that would only "not eliminate" him as a suspect. He apparently wanted some wiggle room to argue that he was not responsible for the harm inflicted upon the victim.

At the time, only four states — Alaska, Alabama, Massachusetts and Oklahoma — did not have laws dealing with post-conviction DNA testing.

Pennsylvania has a statute providing for post-conviction DNA testing. The statute, 42 P.S. 9543.1, requires that the applicant assert "actual innocence" of the crime for which he or she was convicted. The statute does not require that the evidence be discovered after conviction.

The 9th U.S. Circuit Court of Appeals ordered Alaska to turn over the evidence requested by Osborne. The matter was appealed to the U.S. Supreme Court. The court never got to the issue of Heck and the right to challenge a conviction through a 1983 claim.

Instead, the court focused on Osborne's contention that, pursuant to the due process clause of the 14th Amendment, he was entitled to retest DNA through a new method at his own expense. The court refused to recognize a free-standing due process right to DNA evidence, separate from a claim seeking vindication.

Chief Justice John G. Roberts wrote for the majority: "Moreover to suddenly constitutionalize this area would short-circuit what has been a prompt and considered legislative response by congress and the states."

Skinner now brings before the court the same issue that the court failed to address last year — can a convicted prisoner seek DNA testing through 42 U.S.C. 1983 or only through habeas corpus?

In 1997, Skinner's murder conviction was upheld by the Texas Court of Criminal Appeals. The following year his writ of habeas corpus was denied by a state appellate court. In 2002, a second habeas corpus petition was dismissed. He filed a federal habeas corpus petition requesting DNA testing. A federal district court denied his petition and the 5th U.S. Circuit Court of Appeals affirmed the district court decision. The U. S. Supreme Court refused to hear the habeas corpus claim.

Skinner then filed the 1983 suit. The district court dismissed the claim, the 5h Circuit affirmed the dismissal and, last week, the U.S. Supreme Court granted certiorari.

Counsel for the respondent in Skinner's suit, prosecutor Lynn Switzer, argued that the law is clear — Section 1983 is not the vehicle to challenge a conviction. Switzer's counsel has also argued that even if the items were tested for DNA, "the evidence at trial overwhelmingly showed Skinner's guilt."

It is interesting that the Supreme Court would agree to hear the case in light of the court's recent reluctance in Osborne to acknowledge DNA testing as a constitutional right and avoiding the Heck issue altogether.

Everyone is harmed when an innocent person is wrongfully convicted. Even with that in mind, opening the civil courts to convicted offenders for them to challenge convictions that have not been vindicated in criminal court is a dangerous proposition.

The prospect of offenders simultaneously pursing relief in both civil and criminal court, with different burdens of proof, could cause enormous problems of inconsistency and inequity. The issues of justice and finality are not inconsistent. Habeas corpus, with its clearly defined and refined procedure, is more than adequate to address post-conviction issues, including DNA testing.

However, the court has not backed away from claims of actual innocence.

Last year, less than two months after the ruling in Osborne , the court decided In re Troy Anthony Davis . By a vote of 7 to 2, the Supreme Court instructed the district court to "receive testimony and make findings of fact as to whether evidence that could have been obtained at the time of trial clearly establishes [Davis'] innocence."

The court's decision was extremely unusual. Davis filed an original writ of habeas corpus, a request for his release filed directly with the Supreme Court rather than in the lower court, a claim that has been sparingly granted in the last 100 years.

Will the court move closer to acknowledging greater rights for claims of actual innocence or will it reaffirm the court's position foreclosing civil rights claims as a means to challenge criminal convictions? The answer may begin to define the legacy of the Roberts Court.