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Why Not Just Test the DNA?

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On March 7, the Supreme Court decided Skinner v. Switzer and held that death-row inmate Henry Skinner may bring a claim in federal court under civil rights law 42 U.S.C. § 1983. Skinner is attempting to challenge a Texas law that restricts the ability of convicted prisoners to seek DNA testing of crime-scene evidence after their conviction. Skinner’s challenge asserts that this state law violates his civil rights, specifically his procedural right to due process. Justice Ginsburg’s majority opinion was joined by Justices Roberts, Scalia, Breyer, Kagan, and Sotomayor. Justices Thomas, Kennedy, and Alito dissented.

Skinner followed the Court’s 2009 decision in District Attorney’s Office for Third Judicial Dist. v. Osborne. In that decision, the Court held that the Federal Constitution does not give all convicted prisoners the right to post-conviction DNA testing; however, the Court left open the possibility that a convicted prisoner could potentially challenge a state law allowing for such post-conviction DNA testing in federal court if the law is deemed to be “fundamentally inadequate.” Skinner answers this question by allowing convicted prisoners to challenge these state post-conviction statutes in a civil rights claim in federal court under § 1983. However, the opinion did not address the question of whether or not Skinner is actually entitled to the DNA testing that he has been seeking for years.

Skinner was convicted of murdering his girlfriend and her two sons in 1995. Skinner has continually maintained his innocence and for years has been seeking testing of biological material from the murder, including vaginal swabs, fingernail clippings, blood, and hair. In order to have post-conviction DNA testing in Texas, state law (Article 64) requires the convicted prisoner to not be at fault for the failure to test the biological material prior to trial. The Texas state courts ruled that Skinner did not meet this “no fault” requirement, and therefore he was denied post-conviction DNA testing. (Skinner’s trial counsel had not asked for testing prior to trial because he was afraid that the results would confirm guilt.) In his federal claim, Skinner argued that his procedural due process rights were violated when the state courts construed Article 64 to prohibit relief to inmates who could have, but did not, seek DNA testing prior to their trial.

The Pennsylvania post-conviction DNA testing statute has a provision similar to Texas’ “no fault” provision. Under 42 Pa.C.S.A. § 9543.1, an applicant who was convicted after January 1, 1995, is entitled to DNA testing only if the applicant’s attorney asked for DNA testing, but was denied the funds to do so, or if the type of testing sought was not available at the time of the trial.

The Court’s opinion in Skinner deals with a very complicated legal issue, and many resources were spent litigating over the course of more than a decade. Skinner provides a glimmer of hope for inmates seeking DNA testing when a state denies them access to the evidence. However, it will still take years of litigation for prisoners to merely get DNA testing that could prove their innocence or confirm their guilt. Skinner ignores the unavoidable question – why not just test the evidence? Putting aside the obvious moral reasons to test the evidence – to potentially exonerate an innocent person and perhaps convict the actual perpetrator – there is no risk to the prosecution and it would cost less to just test the evidence. All of this litigation is avoidable if prosecutors will simply agree to DNA testing.

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