Amongst the issues swirling around the Hank Skinner case is that DNA tests now sought, which may or may not tend to exculpate him, could have been done before trial, but were not. His trial lawyer, Harold Comer, chose not to have additional DNA testing done. The ABA Journal writes:
Skinner’s lawyers want DNA tests that his trial lawyer shunned because of fears the results would be incriminating. Among the items that have not been tested are two knives, a bloody towel and a rape kit. Comer says he now backs DNA testing, but his trial strategy was justified, AP says. “I would make the same decision with the same circumstances again,” he said.From this side of the verdict, many have been highly critical of Comer’s decision not to test for DNA when the opportunity was available, making it a significant stumbling block now.
In retrospect, it’s easy to argue that Comer made the wrong decision, at least until the tests come back, should they end up showing Skinner’s DNA was there all along. One huge point that can’t be ignored at this stage is that testing isn’t so much to prove his innocence as to preclude the execution of a man who might be innocent. Should the tests come back with Skinner’s DNA all over the place, game over.
The view now, however, is based on an entirely different situation than the view Comer was looking at when he decided to “shun”, a ridiculous word choice, the testing before trial. We now look at the case with verdict and sentence in hand, guilty and death. Harold Comer had a trial to do on behalf of a presumed innocent defendant.
The last thing a trial lawyer wants to do is push for evidence that will seal his client’s fate. Comer was already faced with problematic, though not overwhelming evidence, against Skinner. Based on the evidence in hand, he had a chance of beating the case. How good a chance is easier to assess afterward. We now know that it wasn’t very good, but Comer didn’t know that at the time. Who knew how testimony would come off or the evidence would play out. Who knew what mistakes might happen.
To the general public, as well as lawyers who don’t try criminal cases, the multitude of unknowns at trial are staggering and incomprehensible. As clients love to say, “you’re the lawyer; you’re supposed to know this.” Unfortunately, not even criminal defense lawyers are endowed with the ability to see into the future. It’s one of our biggest faults.
While we don’t know, and will never know, what was said within the confines of privileged communications between Comer and Skinner, that might have influenced the decision, it is completely understandable that Comer made the decision not to seek additional DNA testing before trial for fear that it would seal Skinner’s fate. Neither side knew, for sure, what the testing would reveal. Comer had to make a decision, and he did. That it looks wrong, horribly wrong at the moment, is irrelevant. He wasn’t working with a case where his client was already convicted and sentenced to death. He was trying to win.
All this makes those seeking DNA testing now appear disingenuous. He had his chance to get the DNA tested, and made his choice. Now he wants a second bite of the apple? Tough. If Skinner wants someone to blame, look to Harold Comer.
This argument is flawed. While it’s true that Comer could have decided to seek DNA testing pretrial, and Skinner’s post appellate position does seek a mulligan on DNA testing, the propriety of Comer’s decision cannot be judged based on post-trial circumstances. Trial lawyers make a million decisions before a verdict is returned. Some are bound to be wrong.
These only become problematic because of the systemic need for finality, but that equation changes when the sentence is death. While society may be prepared to accept that an innocent person goes to prison because his lawyer made the wrong choice, it’s not prepared to execute an innocent man, even when it can be partially blamed on strategic defense decision.
Harold Comer was constrained to make a decision on behalf of his client, Hank Skinner. He was flying blind, as is so often the case, but that’s the nature of the job. Whether it was the wrong decision remains unknown, but he didn’t have the benefit of having nothing left to lose. Today, we have the benefit. Test it all and let science give us the answer. Comer had a case to try. We have a man about to be executed. Finality doesn’t trump innocence.
Don’t blame Harold Comer for doing his job, even if it turns out that he made the wrong choice. That the ABA Journal described his decision as “shunned” is irresponsible; only someone who doesn’t grasp the nature and function of trial counsel would use that word to describe the choice facing the defense. Comer made his decision based on what was known at the time, and that’s all he could be asked to do. We now face a different situation, and that changes everything.
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I certainly agree with you here, Scott. What I would comment on (though it’s been said before) is the prosecutor’s duty to do “justice.” He has absolutely no ground to refuse further testing, especially considering that a firm has offered to test it for free.
If it’s inculpatory: good deal, we were serving justice all along.
If it’s exculpatory: good deal, we stopped the execution of an innocent man.
However, I could see some problem if the results are inconclusive such as if multiple DNA sources are found.
In that case, the prosecutor could end up looking doubtful to Skinner’s guilt as he allowed the testing. Also, it could encourage further protests.
I think inconclusive results are what the prosecutor most fears. But what do I know? INAL.
Didn’t Skinner actually make his request for DNA testing in writing during the trial? I read that somewhere. If true, and it was overruled by counsel – even if this was a sound strategy – then from the defendant’s perspective (rather than Comer’s) that feels like a first “bite at the apple,” not a second.
It also points to innocence, as a guilty client would presumably be less likely to make such a request before hearing the verdict.
Also, the mere notion of NOT testing the knives and rape kit(!) is mind-boggling. This passes for police work?
My understanding is that Skinner has asked his lawyer to have the testing done either before or during trial, but it’s impossible to verify this and, if you’ve ever dealt with a defendant in a criminal case, you can’t read too much into it (as a showing of his belief in his innocence) if it did occur. Defendants often push their lawyers to do things which ultimately don’t inure to their benefit.
Inconclusive results would really gum up the works in a case like this, but the prosecution cannot legitimately hide from the results because of the possibility that they may be inconclusive, or even adverse. They will be whatever they will be, and both sides will deal with the outcome, whatever that turns out to be.
Shouldn’t the answer to all this be that lawyers should request the DNA for the sentencing hearing? Im sure a judge would want to know if the DNA would have been exculpatory before she sentences someone to death.
There is no animal that permits the defendant further discovery between verdict and sentencing, No matter how “sure” you are, I strongly urge you not to bet the farm on it.
Cool name, by the way.
Thanks for saying so eloquently what I’ve been trying to say about this case.
Although its not happened to me, I’ve heard several of my fellow defense attorneys tell about a client who insisted on a pre-trial DNA test claiming the results would show innocence, and the tests come back showing guilt.
I have had a similar result with–of all things–a video recording, where the client insisted the video would show he was innocent and instead it shows quite clearly that he was doing exactly what hes charged with. Even if the defense has no obligation to introduce that evidence, it certainly colors the relationship between counsel and defendant and affects all further proceedings.
It really is amazing what people can convince themselves of sometimes.
That being said, I certainly don’t want to see a potentially innocent person executed, or even sentenced to any punishment. But what is the proper solution? Allow defendants to discover and introduce evidence post-conviction, when any potential damaging effects of the evidence is gone? Force attorneys to follow all defendant’s instructions on evidentiary matters? Establish a commission to perform an ‘independent’ review of evidence after trial? Wish I had an answer to this one…
Scott,
Enjoyed the post. I apologize for jumping in on your twitter discussion of the post. I thought you were discussing the right to the collected evidence to test in pretrial discovery vs. habeas discovery, after Osborne. (I see Osborne everywhere with discussion of Skinner case, so I apologize for jumping the shark.)
Osborne side-stepped our (amicus) argument that Due Process principles underlying Brady provide a freestanding right to access to DNA evidence that can be addressed in a 1983 action. The court side-stepped that issue by admonishing people like Osborne to seek access to DNA evidence in state discovery proceedings, esp. post-conviction discovery proceedings. The Osborne majority essentially said that access to DNA post-conviction is properly a creature of state statutes (46 states have), and as long as state allow post-conviction discovery rights to access to DNA like that framed in 18 U.S.C. § 3600 (materiality), this is the process that is due.
Osborne opinion mentioned dismissively the strategic decision-making process of trial counsel that you address, seeming to direct us that any problems with said strategy are properly addressed by these state schemes for access to DNA evidence. SCOTUS did reject the 9th’s analysis that Alaska violated a freestanding Brady due process right, reasoning that the right exists but does not stand alone post-conviction.
It took me a while to realize that we were twitting about different things, and the medium tends to be less than useful for any type of discussion that calls for a lengthier explanation. It’s awful when you realize that two people are having a conversation, just not about the same subject. That will teach me to try to twit about complex concepts.
This is the take / analysis I’ve been waiting for. All the articles I’ve read have basically stated that Skinner wanted the test done but that Comer didn’t request it. They didn’t paint it in a more neutral light, so I sort of hook-line-and-sinkered on Skinner being denied a test he wanted.
But yeah, if there was any kind of conversation that involved “Now level me, I can never repeat any of this anywhere ever – did you do it? Is it POSSIBLE we’ll find your DNA? We don’t want to, but if we might, I really need to know.” and ended with “Yeah.” then Comer did the right thing.
It just didn’t occur to me that Skinner might be telling less than the truth about exactly what happened pre-trial. He might have been, but what you’ve pointed out for me is that this one isolated incident may very well just prove how competent Comer was.
Didn’t you blog about an attorney who didn’t know when to quit? Something-something filed a totally needless motion that tanked his case or something?
I believe that this is the post you’re referring to, where the defense lawyer asked to have the jury polled after an acquittal. Of course, while there are a million decisions which we are forced to make blind, polling the jury after acquittal isn’t one of them.