By Robert Barnes
Washington Post Staff Writer
Monday, March 7, 2011; 6:44 PM
The Supreme Court opened a legal avenue Monday for prisoners to try to gain access to DNA evidence that might prove their innocence but noted that their chances at success might be slim.
The court ruled 6 to 3 in favor of Texas death row inmate Henry Skinner, who has maintained that he did not kill his girlfriend and her two sons. Skinner came within 45 minutes of being executed last spring before the Supreme Court took up his case.
There was no guarantee in the court's narrow ruling that Skinner, convicted in 1995, will ever gain access to all of the evidence recovered at the crime scene.
Texas is one of 48 states that allow at least some prisoners post-conviction access to DNA evidence, but their rules vary. More than 260 people have been exonerated after conviction through DNA evidence, according to the Innocence Project, which investigates cases and represents inmates.
A divided Supreme Court decided in 2009 largely to leave the decision about testing up to Congress and state legislatures. It ruled that the convicted do not have a constitutional right to testing but left a narrow opening for those trying to prove that a state's laws governing access to DNA are inadequate.
Skinner's attorneys tested that opening by suing Gray County District Attorney Lynn Switzer, saying the decision to withhold DNA testing in his case violated his federal civil rights.
Monday's court majority said a federal court could consider that claim.
Justice Ruth Bader Ginsburg wrote that court precedents allow civil rights challenges if the result would not "necessarily imply" the invalidity of their convictions.
"Success in his suit for DNA testing would not 'necessarily imply' the invalidity of his conviction," Ginsburg wrote of Skinner's suit. "While test results might prove exculpatory, that outcome is hardly inevitable. . . . Results might prove inconclusive, or they might further incriminate Skinner."
Ginsburg seemed to indicate it might be difficult for Skinner to ultimately prevail and win access to DNA evidence. The court's 2009 ruling "left slim room for the prisoner to show that the governing state law denies him procedural due process," Ginsburg wrote.
Skinner's attorney, Robert C. Owen, welcomed the court's decision: "We look forward to making our case in federal court that Texas's inexplicable refusal to grant Mr. Skinner access to evidence for DNA testing is fundamentally unfair and cannot stand."
Groups that represented prisoners called on Switzer to test the remaining evidence instead of continuing to fight Skinner's request. Switzer did not return phone calls after the decision. But when the Supreme Court accepted the case, Switzer said Skinner had has "plenty of opportunity to show that additional testing could prove his innocence, but he could not show that."
Texas courts said Skinner did not meet the requirements of the state's law, which, among other things, requires that testing was either not available or not technologically advanced at the time of trial or that the defendant did not pass up the chance for testing.
Justices Clarence Thomas, Anthony M. Kennedy and Samuel A. Alito Jr. dissented, saying that civil rights laws should not allow Skinner another way out when he has exhausted all appeals. They predicted an outpouring of similar lawsuits.
"What prisoner would not avail himself of this additional bite at the apple?" Thomas wrote.
For some, Skinner's case has become a cause.
He has steadfastly maintained his innocence, despite acknowledging that he was present during the 1993 New Year's Eve slayings of his girlfriend, Twila Busby, and her two mentally disabled adult sons at the house they shared in the small Panhandle town of Pampa.
Police found Skinner blocks away, hiding in the closet of a former girlfriend, in bloody clothes and with a gash on his hand.
He said that during the killings he was passed out on what tests showed to be a near-lethal combination of codeine and alcohol. Skinner said he could not have overpowered and killed the three in his condition.
He said that he woke to find them dead and that the blood on his clothes came from examining them.
Prosecutors did not test all of the evidence from the crime scene, including material from a rape kit, hair and skin cells under Busby's fingernails.
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 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.
The case is Skinner v. Switzer .