A strange fruit, abolishing the death penalty La pena di morte è come la schiavitù, nessuno può imporla

post conviction DNA testing

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Published on Thursday, 17 May 2012 19:56

The Legislature, post-conviction DNA testing, and the (slow) education
of Texas prosecutors

http://gritsforbreakfast.blogspot.it/2012/05/legislature-post-conviction-dna-testing.html

I was amazed to read that, at Hank
Skinner's hearing before the Texas Court of Criminal Appeals seeking DNA
testing under Chapter 64 of Texas' Code of Criminal Procedure, the State argued that the Legislature didn't intend to grant relief in situations like this one.
In point of fact, and as somebody paid by the Innocence Project of Texas to
lobby on behalf of the bill I can say this with certainty: Skinner's case was
not only cited in testimony surrounding the bill, his US Supreme Court victory
essentially made passage of SB 122 (Ellis/Gallego) expanding access to DNA
testing a fait accompli. After that, prosecutors at the capitol seemed
to give it up as a lost cause.

In Skinner's federal appeal, the US Supreme Court ruled in his favor to say
that if he were denied DNA testing under state law, he could sue under the federal Sec. 1983 civil rights statute (which is especially
critical since Texas has no comparable state cause of action for civil rights
abuses, though the state does have a special chapter of the Code of Criminal
Procedure providing for post-conviction access to DNA testing).

So in the wake of Skinner's US Supreme Court victory, Texas legislators were
faced with a choice: They could retain restrictive language insisted upon 
by prosecutors in Texas' 2001 DNA testing statute, giving them unilateral
grounds for objecting to tests. But if they let prosecutors keep that power,
local taxpayers would find themselves on the hook for expensive, time consuming
federal civil rights litigation. It was in that context that the Texas
Legislature limited prosecutors' discretion to oppose such "Chapter
64" motions, at least when there's a chance it could prove innocence, a
move which has already cleared the way for other exonerating DNA testing.

The most famous (notorious?) example may be Williamson County DA John Bradley
fighting Michael Morton's DNA testing motion tooth an nail for 6 years before
the motion was finally granted and the results cleared Morton's name. Michael
Morton was finally granted DNA testing not because John Bradley suddenly
saw the light on the road to Damascus, but because the law
changed and the grounds on which he'd previously objected to DNA testing under
Ch. 64 suddenly vanished. Readers may recall rookie McLennan County DA Abel
Reyna had to learn that lesson as well, flat out misunderstanding the law and his own authority before somebody
finally explained it to him.

Similarly, consider Kerry Max Cook, a Tylerite who spent
20 years on death row for a 1978 murder, ultimately bartering his freedom for a
guilty plea in order to prevent a fourth trial, facing prosecutors who once
again said they would seek the death penalty. (Maybe it's happened before, but
Grits knows of no other guilty plea to a capital murder where the
defendant walked away free essentially for time served - not if responsible
prosecutors honestly think them guilty of a heinous act.) At the time Cook went
free, DNA testing still a relatively new technology, certainly for East Texas
courts and even the Court of Criminal Appeals (this was pre-Roy Criner). Some time later,
DNA testing ultimately exonerated him, but never the courts. Even so, as a
practical matter Kerry Max Cook couldn't pursue post-conviction DNA testing
necessary clear his name formally through the habeas corpus process
until recently because of virulent, Bradley-style opposition from a succession
of local Smith County DAs. The possibility only glimmered anew after SB 122
stripped away the means by which Smith County prosecutors and judges (in this
case kinda the same thing) could prevent him from exposing, with finality and
legal certitude, his false conviction as a capital murderer.

So, to return to Mr. Skinner, it's a relief if not a surprise to hear that
questioning from the Court of Criminal Appeals seemed to favor liberal access
to DNA testing. These quotes were recorded in an account from David Protess at the Huffington
Post:

Judge Elsa Alcala: " [The evidence against Skinner] is not
overwhelming. It's circumstantial... If you had tested this... 10 years ago, we
would have had results 10 years ago. "

Judge Cathy Cochran: "Why not just lay all this to rest by doing
the DNA quickly? We've had some rather embarrassing incidents in the last
couple of years." [There have been 47 DNA exonerations in Texas.]

Judge Michael Keasler: "Prosecutors should be testing everything...
You ought to be absolutely sure before you strap a person down and kill
'em."

Judge Keasler's comments are particularly notable as he more frequently
votes with Judges Keller and Hervey on the court's more extremist right wing.
Judge Alcala so far ranks among "moderates" on the court, to the
extent there is such a thing. Judge Cochran's comment is also notable because
she's so often a swing vote among competing conservative factions. Counting
heads, if she and Keasler side with Skinner, Grits would offer an educated
(perhaps obvious) guess that the ruling will go his way. Reported Brandi Grissom at the Texas
Tribune:

Texas Solicitor General Jonathan Mitchell told the court that there is
such "overwhelming evidence" of Skinner's "actual guilt"
that DNA testing could not undermine the conviction. Mitchell argued that
Skinner had his chance to test the evidence at his trial, but he chose not to.
Skinner is now using the fight for DNA analysis as a frivolous attempt to delay
his inevitable execution, Mitchell added. Allowing Skinner testing at this late
point in the process, Mitchell said, would set a dangerously expensive
precedent for guilty inmates. In future cases, he said, prosecutors would feel
obligated to test every shred of evidence to prevent a guilty defendant from
delaying his sentence by requesting additional DNA results.

"Prosecutors will have to test everything, no matter what the cost,"
Mitchell told the court.

"Prosecutors should be testing everything anyway," Keasler said.

Ouch! That was NOT the response Mr. Mitchell was looking for from Judge
Keasler!

Am I saying Hank Skinner is innocent? I have no idea. Will I be surprised if
DNA evidence inculpates him? No more than I would if it exculpates. I agree
with Judge Cochran that "[The evidence against Skinner] is not
overwhelming. It's circumstantial." So why not test? And as the
Legislature understood, if the CCA rules against Skinner, the US Supreme Court
has said he can file a Sec. 1983 civil rights suit and it's likely a federal
judge would order the testing down the line, anyway. That's why, in this
non-lawyer's opinion, Skinner's case should be a no-brainer for the Court of
Criminal Appeals, not to mention an object lesson for Texas prosecutors on how
they approach post-conviction writs and DNA testing going forward.

The worst-case scenario is executing Mr. Skinner, testing posthumously and
finding out he didn't do it. Otherwise, if he is really guilty, testing removes
all doubt and prevents a great deal of torment and controversy in the future
for family and friends of the victim. Since the defense has agreed to pay for
testing, at this point there's no good reason, legal or otherwise, not to get
it over with. Judging from the media coverage, it sounds like at least five
judges on the Court of Criminal Appeals will probably agree