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Drama is missing in DNA death row case

By Robert Barnes
Thursday, October 14, 2010; A2

Supreme Court justices asked an hour's worth of questions Wednesday about Henry Skinner's request that a Texas district attorney turn over all existing DNA evidence in the triple murder that sent Skinner to death row.

But they never got around to the bottom line that Skinner would like to propose.

"Turn over the evidence and test it, and let the chips fall where they may," Skinner told CNN in a recent interview. "If I'm innocent I go home. If I'm guilty, I die.

"What's so hard about that?"

Skinner has never been to a Supreme Court oral argument. The justices and the two lawyers representing Skinner and district attorney Lynn Switzer batted around a half-dozen Supreme Court precedents and several other questions - the difference between a civil rights claim and using federal habeas law to attack a wrongful conviction, the respect owed state courts when the justices are interpreting state statutes and even the definition of the word "necessarily."

They never came particularly close to the question of whether DNA evidence that might prove a person guilty or innocent should always be available to the convicted.

That's partly because the court already has answered that question. In a 2009 decision involving an Alaska man who was convicted of kidnapping and rape, the court ruled 5 to 4 that prisoners do not have a constitutional right to DNA evidence. Even though it acknowledged that such testing had an "unparalleled ability" to separate the guilty from the innocent, the majority said decisions on when prisoners have the right to such testing are best left to state legislatures and Congress.

In constructing such a large roadblock to prisoner claims, though, the justices left a small opening: for civil rights claims, if the prisoner could show that he was denied due process to obtaining evidence that could lead to his exoneration.

That is the path Skinner is asking the court to open for him. He has always maintained his innocence, despite acknowledging that he was present during the brutal 1993 New Year's Eve slayings of his girlfriend, Twila Busby, and her two adult, mentally disabled sons in the Pampa, Tex., home they shared. Skinner was discovered hiding in the closet of a former girlfriend, in bloody clothes and with a gash in his hand.

But he contends that during the killings, he was passed out on what tests later showed to be a near-lethal combination of codeine and alcohol and that he could not have overpowered and killed the three in his condition. He said he woke to find them dead; the blood on his clothes came from examining them, he said.

While prosecutors tested some of the evidence from the home, they did not test material from a rape kit, skin cells under Busby's fingernails, hairs and other evidence from the scene. Strategic decisions seemed to be in play on both sides: Prosecutors did not need the extra evidence, and Skinner's lawyer feared more testing would only solidify the case against his client.

Skinner and his supporters, including Northwestern University's Medill Innocence Project, have pointed to Busby's now-deceased uncle, of whom she expressed fear, as the possible killer, and Skinner contends that he always wanted the evidence tested.

He has been unsuccessful in the courts. Texas courts have said he did not meet the state requirements for gaining access to the evidence: that he show a reasonable probability that the evidence would show him wrongfully convicted and that he had no chance to test the evidence at his trial. Federal courts said he could not gain access to the evidence through civil rights laws.

Skinner was within one hour of being executed in March when the Supreme Court issued a stay and decided to hear his case.

That drama was missing from Wednesday's technical arguments. Skinner's attorney Robert Owen told the court that the only issue was whether Skinner could use the federal courts to press his civil rights claim to the evidence. He cited a previous court ruling that gave prisoners access to some evidence as long as the claim would not "necessarily imply the invalidity of a conviction or sentence."

Justice Stephen G. Breyer seemed to think Skinner's request fit. "I would interpret his complaint is what he wants is the DNA. He thinks it's going to be exculpatory. He doesn't know that till he gets it."

But Justice Samuel A. Alito Jr. said Skinner's request for the DNA could not be separated from his attempt to get off death row.

"In the real world, a prisoner who wants access to DNA evidence is interested in overturning his conviction," he said.

Gregory Coleman, representing district attorney Switzer, agreed. "This is an attack on the criminal proceeding," he said, and could only come under a habeas claim that challenged Skinner's imprisonment.

But Justices Sonia Sotomayor and Elena Kagan indicated that would just put Skinner in a Catch-22, because he couldn't challenge the wrongfulness of his conviction without knowing the results of the DNA test.

Justice Antonin Scalia said Texas courts should discern Texas law. "It's up to them how they want to interpret it. We don't - we don't reinterpret state statutes because the state supreme court interpreted it strangely," Scalia told Owen.

Kagan again tried to come to Owen's aid. What he was really saying, she suggested, is that the "statute as construed was unconstitutional," making it a proper subject for review.

"That's right, your honor," he quickly agreed.

The case is Skinner v. Switzer.

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