Prosecutors fear flood of DNA claims under §1983: But defense lawyers say SCOTUS ruling is limited

By Kimberly Atkins The Daily Record Newswire In the wake of the U.S Supreme Court's ruling in Skinner v. Switzer that prisoners may assert civil rights claims seeking access to DNA evidence, defense attorneys and prosecutors are predicting very different consequences. "I think it will probably have a pretty big impact," said attorney Mark D. White, who represents the respondent, Gray County, Texas, District Attorney Lynn Switzer in the Texas federal courts. White said the ruling will encourage defendants to forego seeking DNA testing at trial, only to try to request it in a post-conviction motion and sidestep habeas corpus. "There will be endless litigation," White said. "You should not be able to game the system that way to get a second bite of the apple." But defense attorneys say the ruling is limited to situations where defendants are seeking access to DNA evidence, and not necessarily making a challenge to the validity of their convictions. "There is no reason to fear that lawsuits like Mr. Skinner's will overwhelm the federal courts," said Robert C. Owen, a clinical professor at the University of Texas School of Law in Austin, who represented petitioner Henry Skinner in the case. 'Additional bite of the apple?' Skinner was convicted of the murders of his girlfriend and her two adult sons and sentenced to death. Prosecutors conducted DNA testing on some, but not all of the evidence collected from the scene. Skinner's attorney made the decision not to have the remaining DNA evidence tested. After his conviction, Skinner unsuccessfully sought relief under a Texas law that allows those convicted of crimes in some circumstances to test DNA evidence that may be exculpatory. He then filed a §1983 action in federal court claiming his constitutional rights had been violated. The district court dismissed the claim, holding that such actions must be pursued via habeas corpus petitions, and the 5th Circuit affirmed. The Supreme Court granted a stay less than an hour before Skinner was to be executed, and later granted certiorari. Writing for the Court's 6-3 majority, Justice Ruth Bader Ginsburg reasoned that §1983 actions seeking something other than invalidating a conviction were cognizable. "Success in [the defendant's] suit for DNA testing would not 'necessarily imply' the invalidity of his conviction," Ginsburg wrote. "While test results might prove exculpatory, that outcome is hardly inevitable; as earlier observed, results might prove inconclusive or they might further incriminate [him]." (See "Prisoner can assert §1983 claim for DNA evidence access.") Justice Clarence Thomas disagreed, saying the majority's ruling simply gives defendants a second shot at challenging convictions. "[T]he majority provides a roadmap for any unsuccessful state habeas petitioner to relitigate his claim under §1983," Thomas wrote in a dissent joined by Justices Anthony Kennedy and Samuel Alito. "What prisoner would not avail himself of this additional bite at the apple?" Protecting access, or gaming the system? Nina Morrison is a staff attorney with the Innocence Project, which has worked with Skinner's attorneys since 2008. She said the ruling is important for protecting prisoner's rights to DNA access. The ruling "doesn't guarantee that the evidence will be tested," Morrison said. "[But] he will at least now be able to use the federal courts to prove that he was being unfairly denied the testing by Texas law." Owen, who was appointed by the Supreme Court to represent Skinner, agreed. "The high court's ruling will simply make it possible for Mr. Skinner to vindicate his due process rights in federal court, a right long enjoyed by prisoners in other parts of the country," he said. But White, managing shareholder in the Amarillo, Texas office of Sprouse Shrader Smith, said that the Court's reasoning that Skinner was only seeking evidence, not a challenge to his conviction, flawed. "With all due respect for Justice Ginsburg ... the Court is engaging in a fiction that all that [prisoners] are seeking is DNA evidence," White said. "That is not true. 'I'm just asking for DNA evidence. Why? Just because.'" Moreover, White said, the Texas law in question allows access to DNA for testing in cases where prisoners are entitled to it. Just because Skinner didn't meet the criteria, White said, doesn't mean that his civil rights were violated. "I'm a big fan of DNA testing, because we know what it has been able to do," White said. "[But] under well-established Texas procedures you have got to show a reasonable likelihood that you will be exonerated [to receive access]. He has not met that burden." Going into the Supreme Court argument, amici support was heavily in the district attorney's favor - no amicus brief was filed supporting Skinner. In one of several briefs filed on the district attorney's behalf, the National District Attorneys Association warned the Court that a ruling in Skinner's favor would lead prisoners to start "chopping habeas claim[s] into multiple bite-sized litigation nuggets, and relabeling all of them [as] merely 'civil-rights actions' brought under §1983." But the Court rejected the argument, concluding that §1983 provides a limited way for some prisoners to seek relief. "No evidence tendered by [the prosecution] shows any litigation flood or even rainfall," Ginsburg wrote. "The projected toll on federal courts is all the more implausible regarding DNA testing claims, for [D.A.'s Office for Third Judicial District v.] Osborne has rejected substantive due process as a basis for such claims." White said he was especially surprised by the ruling in light of Osborne, in which the Court ruled that prisoners do not have a constitutional right to DNA testing after conviction. "Traditionally, this was an argument that had to be made [under] habeas," he said. But Owen said there was a valid injury separate from the conviction, and §1983 is the proper vehicle to seek relief. "Texas's inexplicable refusal to grant Mr. Skinner access to evidence for DNA testing is fundamentally unfair," he said. Published: Thu, Mar 24, 2011