Argument preview: seeking access to DNA testing after Osborne

42 U.S.C. § 1983 provides a cause of action for individuals to seek redress when their constitutional rights have been violated by persons acting “under color of” governmental authority. This morning, in Skinner v. Switzer (No. 09-9000), the Court will consider whether a convicted prisoner may seek access to potentially exculpatory DNA evidence under Section 1983.

Background

In 1993, Twila Busby and her two adult sons were murdered in Pampa, Texas. Busby’s boyfriend, petitioner Henry Skinner, concedes that he was in Busby’s house when the murders took place, but he contends that he could not possibly have committed the three brutal murders because he was incapacitated after taking a near-lethal dose of codeine and alcohol.

Before trial, Skinner asked his court-appointed attorney to have DNA tests done on the biological evidence collected at the crime scene, including materials from the rape kit taken from Busby, the skin cells under Busby’s fingernails, hairs found in Busby’s hand, and a blood-stained windbreaker found at the scene.  However, Skinner’s attorney disregarded that request – expressing concern such a test would confirm Skinner’s guilt – and Skinner was convicted and sentenced to death. His direct appeals were unsuccessful.

Skinner’s defense lawyers have since worked with Northwestern University’s Medill Innocence Project to raise numerous questions about his 1995 conviction.  A key witness in the 1995 trial recanted her testimony and now says she was pressured by police investigators to implicate Skinner.  Toxicology reports show that the amount of alcohol and codeine in Skinner’s blood at the time of the murders would likely have rendered him unconscious or stuporous.  New evidence also suggests that Twila Busby’s now-deceased uncle should have been a suspect in the killings.  Last, Skinner’s court-appointed attorney had previously prosecuted Skinner on minor assault and theft charges, crimes that were ultimately used as aggravating factors contributing to Skinner’s death sentence.

After his direct appeals failed, Skinner filed motions in state court under Article 64 of the Texas Code of Criminal Procedure, which provides limited opportunities for prisoners to seek post-conviction DNA testing.  The state trial court denied those motions, reasoning (among other things) that Skinner had not – as required by Texas law – demonstrated a reasonable probability that DNA testing would prove his innocence.  The Texas Court of Criminal Appeals affirmed.

Shortly before the appellate court’s second denial of his motion, the Supreme Court issued its decision in District Attorney’s Office v. Osborne (2009).  In that case, the Court rejected a prisoner’s efforts to rely on Section 1983 to seek DNA testing, holding that there is no substantive due process right to DNA testing.  However, the Court in Osborne left open the possibility that a prisoner could bring a procedural due process challenge if he is denied a fair process for obtaining potentially exculpatory DNA evidence – the issue now before the Court in Skinner’s case.

In November 2009, Skinner filed his Section 1983 suit in federal district court, alleging that state officials violated his “state-created, constitutionally protected liberty and life interests” by denying him access to potentially exculpatory DNA evidence and seeking injunctive relief to gain access to that evidence.  The district court dismissed his suit, concluding that Skinner could seek access to the DNA evidence only through a petition for habeas corpus because the request for DNA testing was “‘so intertwined’ with the merits of the conviction as to require habeas corpus treatment.”  The Fifth Circuit summarily affirmed.  The Court stayed Skinner’s execution less than an hour before it was scheduled to take place and, subsequently, agreed to hear Skinner’s case.

Merits Briefing

In his brief on the merits, Skinner makes two main arguments.  First, he argues that the Court’s precedent supports his efforts to seek access to DNA evidence under Section 1983.  Specifically, although prisoners must seek federal habeas relief to challenge the fact or duration of their confinement, the Court nonetheless held in Heck v. Humphrey (1994) that this doctrine bars only claims that would “necessarily imply the invalidity of a conviction or sentence.”  In Wilkinson v. Dotson (2005), Skinner continues, the Court permitted Section 1983 claims when a prisoner “merely hopes or expects” that his claim may provide some basis for overturning his conviction in the future.  In his case, Skinner argues, obtaining access to DNA evidence would not “necessarily imply” that his conviction will be overturned; to the contrary, the DNA evidence might well come back inconclusive or even confirm his guilt.  Thus, an effort to seek access to DNA evidence does not, without more, challenge the validity of Skinner’s confinement; it only presents the possibility that valuable new proof could be used to exonerate him down the road.

Skinner also makes a series of prudential and policy arguments in favor of his approach to Section 1983.  He contends that his approach can easily be applied by lower courts, while the Fifth Circuit’s “ad hoc” approach needlessly blurs the line between Section 1983 and habeas claims.  Moreover, the Fifth Circuit’s approach “indefensibly” expands habeas beyond its historical core: challenges to the “fact or duration of” a prisoner’s confinement; that court’s approach would also require courts to engage in the difficult task of reconciling habeas procedures with the procedures of individual states for DNA testing.  Finally, allowing Section 1983 claims for DNA testing would not create an undue burden on federal courts; rather, it would, in fact, promote the principles of separation of powers, comity, and stare decisis.

In her brief on the merits, District Attorney Lynn Switzer counters with four arguments.  First, she argues that Heck precludes Skinner from seeking relief under Section 1983 because his claim is, in substance, a challenge to his conviction – Osborne by another name.  Citing Osborne, she invokes the comity and federalism interests “at stake when state prisoners attempt to use the federal courts to attack their final convictions.”

Second, Switzer argues that any alleged procedural due process violation in Skinner’s case stems from the alleged “arbitrary” and “irrational” application of the state’s DNA law by the Texas Court of Criminal Appeals, rather than by her.  Skinner’s claim, she continues, requires questioning the Texas courts twice:  once in their weighing of the trial evidence supporting Skinner’s conviction and then in their decision that he was now barred from accessing DNA evidence because he never sought to test that evidence at trial.  Nor, she notes, has Skinner ever challenged Texas’s DNA evidence law as facially unconstitutional.

Third, Switzer asserts that if Skinner is indeed contending that Texas state courts violated his constitutional rights, the Rooker-Feldman doctrine – which emerged in the civil context to prevent “state-court losers [from] complaining of injuries caused by state-court judgments” – would bar federal courts from reviewing his case.

Fourth, and finally, Switzer argues that Skinner’s case should be dismissed as improvidently granted because Skinner has shifted the substance of his claim.  He no longer contends that she violated his rights at all, but is instead trying to challenge the Texas courts’ denials of his motion to obtain access to DNA evidence. This essentially new claim was never raised in the lower courts, and she is no longer the appropriate defendant for this claim.