DNA Testing

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By Brandon L. Garrett, a professor at the University of Virginia School of Law.

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The U.S. Supreme Court settled another boundary dispute about what lies inside and what lies outside of habeas corpus today in Skinner v. Switzer. Henry Skinner was convicted and sentenced to death in Texas in 1995 for the murder of his girlfriend and her two sons, whom he lived with. Skinner claimed he was home, but did not commit the murders since he was incapacitated by large amounts of codeine and alcohol. Before trial, the State tested some crime scene evidence, and some of it inculpated Skinner, but some did not. Inexplicably left untested were key pieces of evidence, including knives found at the scene, an axe handle, vaginal swabs, fingernail clippings, and hair samples.

In the meantime, in 2001 Texas passed a DNA access statute, which makes available post-conviction testing to prisoners who satisfy its criteria, including that there is a "reasonable probability" that the results could change the outcome. The Texas Court of Criminal Appeals repeatedly denied his motions seeking DNA tests on all of those other items. They blamed Skinner's trial lawyer, saying that it was a "reasonable" strategy to fail to request the DNA tests at the time of his trial, since the results might just have further inculpated Skinner. Skinner could be executed without any tests done on that crucial crime scene evidence - unless the federal courts would reverse the rulings by the Texas courts. He brought a civil rights action seeking to do just that, but the State argued federal habeas corpus was the exclusive avenue for such a claim.

These boundary issues did not come up often before. Both the habeas corpus statute, 28 USC § 2254, and the civil rights statute, 42 USC § 1983, provide avenues for litigation of constitutional violations by state actors. Prisoners often used both. However, the habeas statute has been encumbered with a raft of Supreme-Court made restrictions, together with limits added by Congress under the Antiterrorism and Effective Death Penalty Act. While the Court has limited access to remedies under Section 1983 as well, Section 1983 does not have unfair timing rules. If one suffers separate constitutional violations over time, one can bring multiple actions.

Not so under federal habeas corpus. If new evidence of constitutional violations or of innocence comes to light only years after a conviction, it may be impossible to file a federal habeas petition. Any number of rules, from the AEDPA statute of limitations, to the dreaded "successive petition" rule may rule out access to a federal court. Many of the innocent people who have been exonerated by DNA tests had to wait years to get those tests; they waited on average 15 years to be exonerated. I describe their difficult path to exoneration in a book that has just been published by Harvard University Press, Convicting the Innocent: Where Criminal Prosecutions Go Wrong. More generally, the book explores what went wrong in the first 250 DNA exonerations. Selective testing of the crime scene evidence was just one of many problems with the way that the forensics was handled and presented in the cases of those innocent people.

Twila Jean Busby's family has waited over 16 years to witness the execution of Hank Skinner, who was convicted of murdering Busby and her two adult sons on New Year's Eve in 1993. After yesterday's reprieve, granted by the U.S. Supreme Court, their wait continues.

Skinner, who adamently proclaims his innocence, was spattered in blood and hiding in a neighbor's closet when he was tracked down by police three hours after the murders. He claims that he could not have committed the murders on account of having passed out next to the victims after using vodka and codeine.

DNA evidence from the crime scene remains untested. Skinner argues that the evidence will prove his innocence. His lawyer, however, refused to test the evidence in preparation for trial, fearing that it would only add to the case against Skinner.