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A limited DNA access plea allowed

After seeming to close the door in 2009 to constitutional claims by convicted individuals that they were wrongly denied access to DNA evidence gathered at a crime scene,  the Supreme Court opened the door — but perhaps only slightly — on Monday.  The Court ruled that the federal courts may hear, under civil rights law, a claim by a state prison inmate that his state’s procedures for testing of biological evidence are flawed.  Although the Court majority stressed that it was not raising inmates’ hopes very high, the ruling potentially could have an impact in 48 states that do allow for some testing of DNA — evidence that sometimes provides a powerful demonstration of innocence, or of guilt.  (The federal government also allows access to DNA evidence for testing.)

The Court’s new 6-3 decision in Skinner v. Switzer (09-9000) answered a question the Court had agreed to decide, but left open, two terms ago in District Attorney’s Office v. Osborne (08-6), decided June 18, 2009.

In Osborne, the Court by a 5-4 majority ruled that prisoners do not have a constitutional right of access to DNA evidence.  That decision, however, rejected a claim only of a “substantive due process” violation in denial of access to such material.  On Monday, the Court majority in Skinner found a limited right of “procedural due process,” which the majority opinion characterized as leaving inmates “slim room” to pursue such a challenge.  It left it to lower courts to decide whether a Texas death-row inmate, Henry W. Skinner, will actually win his claim that Texas’ DNA evidence law was used wrongly to deny him a chance to test biological material — not previously tested by the state.  Police had gathered that evidence in 1993 at a house in Pampa, Texas, where a woman and her two adult sons were murdered.  The woman was Skinner’s girlfriend; he shared the house with her and her sons.

While the state in prosecuting Skinner for the three murders had made use of some of the DNA evidence found at the scene, Skinner’s lawyers have been trying for ten years to get access to the untested evidence — including vaginal swabs and finger nail clippings from the murdered woman, blood and hairs found on a jacket near the woman’s body, and biological evidence found on knives and a dish towel discovered at the scene.  At the trial, his defense lawyer did not ask that these be tested; Skinner would later make his challenge in post-conviction pleas. Those items are still available for testing and are in a condition that they can be tested, according to prosecutors. (Before agreeing last May to hear Skinner’s appeal on the evidence-access issue, the Court in March postponed his scheduled execution for the crimes.)

The only issue the Court settled on Monday was whether Skinner could pursue his claim in a civil rights lawsuit under Section 1983, rather than in a federal habeas challenge, to which more procedural limitations apply.  That was the issue left unresolved by Osborne.   The six-Justice majority in Skinner was made up of Justices Ruth Bader Ginsburg (who wrote the majority opinion) and Justice Stephen G. Breyer, both of whom had dissented in Osborne; Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia, both of whom also were in the majority in Osborne; and the two newest Justices, Sonia Sotomayor and Elena Kagan, who were not on the Court at the time of Osborne; they replaced now-retired members of the Court who were in dissent in Osborne, Justices John Paul Stevens and David H. Souter.

Dissenting on Monday were Justices Clarence Thomas (who wrote the dissenting opinion) and Justices Samuel A. Alito, Jr., and Anthony M. Kennedy, all of whom had been in the majority in Osborne.   The dissenters protested that the ruling “provides a roadmap” for state inmates to reopen DNA access claims in civil rights cases after losing on those in state habeas proceedings.

Justice Ginsburg went to considerable lengths to claim that the decision was narrow — an effort that perhaps was necessary to hold the votes of the Chief Justice and Justice Scalia.  She and the Court’s other more liberal members needed to pick up the votes of either Roberts or Scalia to prevail, and both joined the opinion without qualification.

Ginsburg noted that the Osborne decision had barred an inmate seeking access to DNA evidence any right to that under substantive due process principles, and “left slim room for the prisoner to show that the governing state law denies him procedural due process.”   In seeking to make the point — in answer to the dissenters — that the new ruling would not lead to a flood of such civil rights challenges in DNA cases, Ginsburg said that in the areas where federal appeals courts had previously allowed claims like Skinner’s, there had been no evidence of “any litigation flood or even rainfall.”   In addition, the opinion noted that the federal Prison Litigation Reform Act of 1995 “placed a series of controls on prisoner suits,” so as to limit inmate litigation in federal courts.

The key to Monday’s ruling was the majority’s conclusion that a civil rights claim of a flawed state DNA procedure is not an attempt to undo a criminal conviction or sentence, and thus does not have to be pursued solely under federal habeas law.  If the inmate wins access to the DNA that is in a case file, Ginsburg noted, the tests may work in favor of the inmate’s claim of innocence, work in favor of the guilty verdict, or may produce only an inconclusive result.

Recommended Citation: Lyle Denniston, A limited DNA access plea allowed, SCOTUSblog (Mar. 7, 2011, 11:34 AM),