By Ryan Thornton

Does a death row inmate who claims he is innocent have a right to obtain DNA testing on evidence found at the scene of the alleged crime? On March 25, 2010, one hour before Hank Skinner was scheduled to be executed for the 1993 murder of his girlfriend and her two adult sons, the Supreme Court, in Skinner v. Switzer, No.09–9000 (2010), decided to stay Skinner’s execution to answer this question.


            One year earlier, the Court ruled in District Attorney’s Office v. Osborne, No. 08-6, 557 U.S. _____ (2009), that inmates have no freestanding right under the Constitution’s Fourteenth Amendment due process clause to test evidence that could prove their innocence in states without laws on DNA testing. In Skinner v. Switzer, following his conviction, Skinner requested DNA testing of blood, fingernail scrapings and hair found at the scene. Prosecutors denied his request, and Skinner filed a § 1983 civil rights claim, arguing that the state’s ability to selectively test some DNA but not all in a capital murder case violated his rights.


            Skinner’s § 1983 challenge, while rare, is not completely without precedent. In Wilkinson v. Dotson, 544 U.S. 74 (2005), the Court held that inmates are allowed to challenge parole procedure under the civil rights law rather than as traditional habeas corpus challenges. Even Justice Scalia appeared to agree that the court’s earlier decisions tended to support Skinner’s civil rights challenge in this case - “We’ve never had a case like this,” he said, “and it’s conceivable to me that we have to expand what we said.” (http://www.nytimes.com/2010/10/14/us/14scotus.html?_r=1). 


            To be sure, there are problems in granting Skinner’s request. There are great benefits in the finality of verdicts (especially from the perspective of the victims’ loved ones) and the prevention of an endless flood of legal challenges. However, it is hard to argue that these benefits outweigh guarding against the possible execution of an innocent man, or undermine the credibility of prosecutions.


            From the year of the alleged murder, 1993, to the year 2001, in which Skinner hired new counsel and Texas passed a law providing for access to evidence for DNA testing, Skinner claimed there was evidence at the crime scene not tested before that would ultimately exonerate him. Nina Morrison, a senior staff lawyer for the Innocence Project, notes the unusual nature of Skinner’s case - “In my experience, this case is pretty rare in that there is a very substantial amount of evidence that all comes from the crime scene, that all potentially comes from the killer, that has never been tested.”


            The Supreme Court does not need to step on Texas’ toes in labeling the state’s DNA procedures as inadequate. Rather, it should, and may already, appreciate the variability of cases involving DNA testing and recognize a right, albeit limited, of death row inmates to obtain DNA evidence. If anything, it could considerSkinner v. Switzer as a test case that recognizes the evolution of technology that led Texas to implement stronger procedures subsequent to Skinner’s trial.