Oral argument before the Supreme Court on Hank Skinner’s quest to get the Republic of Texas to do DNA testing left the justices twisted in a procedural morass. As Adam Liptak tries to explain:
The justices focused instead on whether Mr. Skinner had located a path through a thicket of legal doctrines meant to limit postconviction challenges.
Last year, in District Attorney’s Office v. Osborne, No.08-6, the court ruled by a 5-to-4 vote that inmates have no freestanding right under the Constitution’s due process clause to test evidence that could prove their innocence in states without laws on DNA testing. The court and Congress have, moreover, severely limited habeas corpus challenges to convictions and sentences.
Mr. Skinner chose a third route, suing under a federal civil rights law known as Section 1983 and saying a Texas law that allows DNA testing in only some circumstances violated his rights.
Taken separately, rules develop for a reason, and make some sense in a way that suggests they solve one problem despite creating another. At the Skinner argument, a whole bunch of problems came together.
That position required Mr. Skinner’s lawyer, Robert C. Owen, to maintain that his client’s goal, at least for now, was not to challenge his conviction or death sentence, as such challenges would have to be brought through a habeas petition, but simply to test the evidence.
Justice Samuel A. Alito Jr. was skeptical. “In the real world,” he said, “a prisoner who wants access to DNA evidence is interested in overturning his conviction.”
Justice Anthony M. Kennedy wondered whether the Supreme Court erred in staying Mr. Skinner’s execution in March, less than hour before he was to be put to death, in light of his position that he was not currently challenging his death sentence.
“You are telling us that your attack doesn’t go to the sentence,” Justice Kennedy told Mr. Owen. “I don’t see why we don’t just lift the stay, under your view of the case.”
The argument seems like something out of Alice in Wonderland, given that obviously the endgame is to test the DNA to show that Skinner is an innocent man and, therefore, shouldn’t be executed. But if the truth is argued, then Skinner loses because you can’t use a 1983 action as a subterfuge to avoid the time constraints imposed on habeas corpus or the tactical decision of trial counsel to not have the DNA tested prior to trial.
There are some sound arguments behind each of the procedural roadblocks. Defendants don’t get a mulligan because trial tactics failed the first time around, or there would be no finality to convictions or consequence from tactical decisions. Indeed, trials consist of thousands of such decisions, and every one of them could theoretically have altered the outcome if handled differently. No conviction would ever be final if defendants could revisit every decision made by a lawyer, and we would be crushed under a deluge of second guessing that would paralyze the criminal justice system.
Then there is the one year limitation on filing a federal §2255, the old habeas corpus petition, to prevent habes from similarly crushing the system under a never-ending onslaught of challenges. This was a triumph of procedure over substance that only a grocery clerk could love.
And ultimately, there is the holding that no free-standing federal due process right to test DNA to prove innocence. This isn’t a procedural hurdle, but some good old judicial modesty, where it’s left to legislatures to create laws enabling access to DNA rather than providing defendants with an independent right under the due process clause, post-conviction, to test. Of course, we don’t want courts legislating rights.
Put all of this together and you’ve got the Skinner case before the Supremes, where the clash of holdings exposes one incredibly troubling problem: An innocent man may end up being executed for lack of a path to prove his innocence.
As lawyers, finding ways to slip-slide our way around procedural roadblocks and hurdles seems almost normal. This is just awful, that we are so inured to playing the technical aspects of law that we fail to be able to state loudly and clearly what we’re trying to do. Skinner’s lawyer, Robert Owen, is forced to essentially lie to the Court, grossly misstate the point of his effort, because if he told the truth, he would lose.
Yet the justices leave him no choice. Consider the statements by Alito and Kennedy, apparently undisturbed by the big question as they grasp the details close to their chest. So what if an innocent man is executed, as long as you aren’t abusing the generosity of §1983 to get around the limitations of §2255? These are two of the nine most powerful people in our tripartite government, and the potential execution of an innocent doesn’t seem to register.
As much as people may be have little sympathy for criminal defendants and favor the rules that make it difficult, if not impossible, to mount a serious post-conviction challenge, are they really so cavalier about the execution of someone who may be innocent? Ask Cameron Todd Willingham.