Skinner v. Switzer

  • March 7, 2011
    Guest Post

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

  • September 20, 2010
    The justices are set to hear high-profile criminal justice and First Amendment cases early in its forthcoming term, which starts Oct. 4. Those cases, and others, were analyzed during the recent ACS Supreme Court preview.

    Cynthia Jones, a law professor at American University Washington College of law, said that the Supreme Court has struggled with cases involving criminal defendants and use of DNA evidence to prove their innocence. She noted a case that may move the high court to provide more guidance on the matter.

    In Skinner v. Switzer, which the justices will hear oral argument in on Oct. 13, the high court is faced with a Texas death row inmate who is challenging a state law that bars him from forcing the state to test DNA evidence he says could prove he is innocent. Jones said the Supreme Court may have to deal again with the question of whether there are indeed "correctable flaws in the criminal justice system."

    Cliff Sloan, partner at Skadden, Arps, Slate, Meagher & Flom, and a frequent commentator on the Supreme Court, discussed two First Amendment cases the high court will consider early in its term -- Snyder v. Phelps and Schwarzenegger v. Entertainment Merchants Assoc.

    In Snyder the justices will consider whether the U.S. Court of Appeals for the Fourth Circuit correctly applied the First Amendment in setting aside a $5 million jury verdict against an anti-gay group led by Kansas preacher Fred Phelps. Phelps and members of his church have a longtime practice of picketing funerals of soldiers who have died in military action in Iraq and Afghanistan. Phelps alleges that America is advancing equal rights for gays and is being punished for doing so by God. After his church, which is largely made up of members of his extended family, picketed the funeral of Marine Lance Corporal Matthew Snyder in Maryland, his father, Albert, sued Phelps, winning the $5 million jury verdict. Sloan also noted Schwarzenegger v. Entertainment Merchants Assoc., involving a federal court striking down a California law barring the sale of violent video games to minors. He said was not surprised that the high court would hear a case involving a federal court invalidating a state law.

    Video of the entire panel discussion is available here or by clicking the picture. Moderated by University of Southern California law school professor Rebecca Brown, the panel also included David Fredrick, partner, Kellogg, Huber, Hansen, Todd, Evans & Figel, Michael A. Carvin, partner, Jones, Day, Cyrus Mehri, founding partner, Mehri & Skalet, Jennifer Chang, staff attorney, ACLU Immigrants' Rights Project, and Paul R. Q. Wolfson, partner, WilmerHale.