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Supreme Court confronts conflicting laws on post-conviction DNA testing

Strategic decisions seemed to be in play on both sides: Prosecutors did not need the extra evidence, and Skinner's attorney feared that 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 was afraid, as the possible killer. Skinner says that he always wanted the evidence tested.

Skinner's argument before the Supreme Court in October required some legal maneuvering. Court precedent would seem to indicate that he can use federal civil rights laws to get the evidence only if that evidence would not necessarily imply the wrongfulness of his conviction.

Skinner's attorney Robert Owen said that was the case because, in fact, there is a chance the evidence would prove him guilty. But, Justice Samuel A. Alito Jr. said, "in the real world, a prisoner who wants access to DNA evidence is interested in overturning his conviction."

Justices Sonia Sotomayor and Elena Kagan said that Skinner was in something of a Catch-22, because he couldn't challenge the wrongfulness of his conviction without knowing the results of the DNA test.

The question that seems to hang over the arguments - but was never broached - was: Why not just perform the test?

Barry Scheck, co-director of the Innocence Project at the Benjamin N. Cardozo School of Law, said cases needlessly drag on when prosecutors resist such requests.

"I'm still stunned by the irrational decisions of some prosecutors and law enforcement not just to do the test and find out," he said. "It's much cheaper and faster just to do it than to litigate."

Switzer, the prosecutor, said the case has "ramifications for district attorneys all across the state, especially where the defendant waits so long before even filing a civil rights lawsuit."

Switzer has not discussed the case publicly, but in her statement, she said Texas procedure for obtaining evidence "is ample and reasonable, and Mr. Skinner has been given plenty of opportunity to show that additional testing could prove his innocence, but he could not show that."

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