By Jason Chimon

Henry Skinner was convicted of the murder of his girlfriend and two sons, and sentenced to death.  SeeSkinner v. Quarterman, 576 F.3d 214 (5th Cir. 2009). Before the trial, Skinner’s attorney had refused to have DNA testing done on several pieces of evidence, and after Skinner’s direct appeals failed, he filed motions seeking to capitalize on a portion of the Texas Code of Criminal Procedure which allows the opportunity to seek post-conviction DNA testing.

            After these motions were denied, Skinner filed a § 1983 motion, alleging that the denial of the testing violated his Fourteenth Amendment right to procedural due process, the question left open in District Attorney’s Office v. Osborne, (2009) after the Court there found that there is no substantive due process right to DNA testing.  The case was dismissed by the district court on the grounds that because the relief sought is so intertwined with the merits, access to DNA testing must be sought out with a petition for habeas relief.  This was affirmed by the Fifth Circuit and the Supreme Court stayed Skinner’s execution to hear the case a mere hour before the execution was scheduled. See Skinner v. Switzer, 363 Fed. Appx. 302 (5th Cir. 2010).


            In order to receive access to the DNA testing and overcome the potential habeas requirement, Skinner must show that his request is not for exculpatory material that could show he is not guilty, but for simple access to DNA which may or may not lead to the discovery of exculpatory evidence, which would then require a habeas petition as distinct second step of a two-step process.  This argument, if successful, would raise many questions about where to draw the line between habeas at §1983 claims, which the Justices were attempting to get at and define with several hypotheticals asked of the advocates. See Argument recap: Drawing a line between habeas and Section 1983, SCOTUSblog, http://www.scotusblog.com/?p=106650 (last visited Nov. 1, 2010). 


Whichever direction the Court takes, this decision will be an important one for the procedures surrounding post conviction relief, its effects reaching all the way back to trial strategies like the decision Skinner’s attorney made originally not to test the DNA.  If the §1983 avenue for relief is barred by the Court, litigators would have to weigh the decision not to test against the powerful consequences, while a decision allowing §1983 relief would allow litigators the luxury to avoid the possible damning evidence a DNA test gone wrong would bring by simply not testing and waiting until post-conviction to seek access.