Allan Turner writes, "Justices may opt to settle DNA issue," in today's Houston Chronicle.
The U.S. Supreme Court on Thursday stayed Skinner's execution to consider taking up his lawyers' writ of certiorari seeking review of a lower court's rejection of Skinner's civil rights request for such testing.
Skinner's lead attorney, Rob Owen of the University of Texas' Capital Punishment Center, called on the court to resolve the question, noting that, at present, five circuit courts allow civil rights claims, two do not and five others are undecided.
The New Orleans-based 5th Circuit U.S. District Court denied Skinner's request for DNA testing of bloody knives, material found beneath his victim's fingernails, rape kit samples and other items found at the crime scene in the Panhandle town of Pampa.
Skinner, 47, was condemned for the Dec. 31, 1993, murders of his girlfriend, Twila Busby, and her two adult sons.
Adam Gershowitz of the University of Houston Law Center said it is “very likely” the court will take up the case. “The issue has been brewing for a long time,” he said. “There's been a lot of controversy between the circuits. ... You need five votes to grant a stay and only four votes to take up a review.”
Prisoners wanting courts to order DNA testing can submit the requests in the form of habeas corpus filings or as Section 1983 civil rights claims. But, said Gershowitz, making habeas corpus claims for DNA testing at the federal level rarely is successful. That's especially true when petitioners attempt to introduce new issues that the defendant's lawyer failed to raise at trial.
Federal courts, he said, are loathe to second-guess lower state courts.
“They don't want to step in at the last minute and reverse a case, especially if the state court hadn't had an opportunity to look at all the issues,” Gershowitz said. “They consider it the petitioner's fault for not bringing up the issues earlier.”
At the heart of the controversy over civil rights appeals is whether the prisoner simply is seeking DNA testing of evidence or is demanding to be released from prison.
An effort to be set free typically would be presented as a habeas corpus case, Gershowitz said, while an effort only to obtain testing could be a civil rights case.
The proper route for seeking testing becomes less clear when a prisoner wants to obtain DNA testing in order to be freed from prison.
The BLT/Law.com has, "Justices Delay Execution, May Examine DNA Testing Issue," posted by Marcia Coyle.
The Supreme Court’s “11th hour” stay of execution issued last evening for a Texas death row inmate may give the justices another chance to revisit a key DNA testing question left unanswered last term.
The justices unanimously granted the delay one hour before Henry Skinner was scheduled to die for the 1993 murders of his girlfriend and her two adult sons. Skinner, who claims he is innocent, has sought DNA testing of bloody knives, material beneath the dead woman's fingernails, rape kit samples and other items found at the murder scene. The Court’s order will remain in effect until the justices act on Skinner’s petition for certiorari.
Skinner’s counsel, Robert Owen of the University of Texas School of Law, last night expressed relief in a statement, saying, “As a result of this action, the Court will have more time to determine whether to hear his appeal. This action suggests that the Court believes there are important issues that require closer examination. We remain hopeful that the Court will agree to hear Mr. Skinner's case and ultimately allow him the chance to prove his innocence through DNA testing.”
The main issue raised by Skinner that may have captured the Court’s attention is whether a state inmate seeking access to DNA testing of evidence may raise that claim in a Section 1983 civil rights action instead of a federal habeas petition.
In Skinner’s petition for review, Owen told the justices that seven of nine federal courts of appeals have approved of the civil rights vehicle. Two, including the U.S. Court of Appeals for the 5th Circuit which rejected Skinner’s claim, do not.
Last term, the civil rights versus habeas issue was raised in a case from Alaska -- District Attorney’s Office for the Third Judicial District v. Osborne. The Court decided Osborne on other grounds.
ABC News posted, "Down to His Final Meal, Hank Skinner Granted Stay of Execution in Texas Murder Case," by Eamon McNiff.
Hank Skinner never wavered in his insistence that he did not murder Twila Busby and her two sons.
According to toxicology tests, Skinner had taken a mixture of Xanax and alcohol and a nearly-lethal dose of codeine the night of the murders; Skinner claims he was passed out on Busby's couch at the time she was killed. An affidavit from Skinner's friend Howard Mitchell said that Mitchell found Skinner "out cold" when Mitchell arrived to take him and Busby to a New Year's party.
Skinner also maintained that the real killer was Busby's uncle, Robert Donnell, whom Skinner claimed was a violent man who had made unwanted sexual advances toward Busby earlier on the night of her death. Donnell was killed in a car crash in 1997.
In 2000, Skinner's case was picked up by a group of students from the Medill Innocence Project at Northwestern University in Evanston, Ill. Led by their teacher, David Protess, the students had already helped win stays of execution for 11 inmates on death row in Illinois by the time they took up Skinner's case.
They quickly began interviewing witnesses, including Andrea Reed, the prosecution's star witness at the time of the trial who said Skinner told her he killed Busby. Reed later recanted her testimony and told Protess' group she "felt pressured" by prosecutors to implicate Skinner, the group's report on the case says.
They also interviewed Donnell's widow, who they say claimed Donnell became violent when he drank. The report also says Donnell's neighbors claimed he wore a windbreaker similar to one found at the crime scene, and was spotted cleaning out his truck a few days after the murders.
The group's biggest find -- and the central point in Skinner's plea to have his case reexamined -- was DNA evidence never tested for trial, partly because Skinner's attorney at the time didn't want it.
Skinner's DNA was found at the crime scene, but Harold Cormer, his attorney at the time, said in reports then that he felt the samples would have implicated Skinner in the killings.
"It was obvious from the start that DNA would determine the truth of what happened in that house," Northwestern's Protess said today in an e-mail to ABC News.
Earlier coverage begins with the preceding post.
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