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Testing the fairness of U.S. law

By MICHAEL KIRKLAND   |   July 18, 2010 at 3:35 AM   |   Comments

WASHINGTON, July 14 (UPI) -- The U.S. Supreme Court says it will visit the rights of the convicted again next term -- deciding whether death row inmates can use federal civil rights law to gain access to DNA evidence they contend would prove them innocent.

Whatever the court rules, the case is just one more landmark in a long journey that defines the basic fairness of U.S. law, or at least the appearance of it.

Post-conviction remedies are serious business. The Death Penalty Information Center, with headquarters in Washington, says since 1973, 138 people have been released from death row after new evidence showed their legal, if not actual, innocence.

The high court does not decide on guilt or innocence and at least two justices have said "actual innocence" is not even relevant. In a 2009 dissent after the other justices granted a new evidence hearing for a Georgia death row inmate, Justice Antonin Scalia, joined by Justice Clarence Thomas, wrote, "This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a (constitutional) court that he is 'actually' innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged 'actual innocence' is constitutionally cognizable."

In June 2009, the Supreme Court ruled 5-4 convicts had no constitutional right to access DNA evidence or other biological evidence held by the states, even if, only for arguments sake, you assume access can be reached through the federal civil rights statute.

The case involved a man named William Osborne, convicted of sexual assault and other crimes in Alaska. Years later, he asked for access to DNA evidence so he could have it tested at his own expense. Eventually, a federal appeals court agreed he had a constitutional right to the DNA evidence. The narrow Supreme Court majority disagreed.

Chief Justice John Roberts wrote in the majority opinion, "DNA testing ... has the potential to significantly improve both the criminal justice system and police investigative practices. The federal government and the states have recognized this, and have developed special approaches to ensure that this evidentiary tool can be effectively incorporated into established criminal procedure -- usually but not always through legislation."

Forty-four states and the federal government have laws allowing inmates access to DNA and other biological evidence.

"Against this prompt and considered response ... William Osborne proposes a different approach: the recognition of a freestanding and far-reaching constitutional right of access to this new type of evidence. ... This approach would take the development of rules and procedures in this area out of the hands of legislatures and state courts shaping policy in a focused manner and turn it over to federal courts applying the broad parameters of the (Constitution)."

Justice John Paul Stevens, now retired, had a different view in dissent. "The state of Alaska possesses physical evidence that, if tested, will conclusively establish whether ... William Osborne committed rape and attempted murder. If he did, justice has been served by his conviction and sentence," Stevens wrote. "If not, Osborne has needlessly spent decades behind bars while the true culprit has not been brought to justice. The DNA test Osborne seeks is a simple one, its cost modest and its results uniquely precise. Yet for reasons the state has been unable or unwilling to articulate, it refuses to allow Osborne to test the evidence at his own expense and to thereby ascertain the truth once and for all."

Roberts and Stevens capture the essence of both sides of the ongoing debate on post-conviction remedies.

On one side, Roberts and his fellow conservatives warn that at some point, judicial proceedings have to be final, and that opening the floodgates of judicial review might take the justice system back to the days when death row inmates and others delayed their sentences for decades with claim after claim, despite the overwhelming evidence that convicted them in the first place.

On the other side, Stevens and his fellow liberals make the practical argument: If a DNA test or rape kit test can make a conviction even more certain, or expose a miscarriage of justice, why not do it?

Though a similar thread winds its way through Supreme Court cases over the years, no where was the dynamic more evident than in 1993's Herrera vs. Collins, where the justices ruled 6-3 that there is no constitutional right for inmates to introduce new evidence of "actual innocence" to challenge their convictions, or their death sentences.

In that Texas death penalty case, the late Justice Harry Blackmun took a death inmate's claims -- or at least the principle involved in the case -- seriously. Writing only for himself in dissent, Blackmun said, "The execution of a person who can show that he is innocent comes perilously close to simple murder."

Last May, the justices indicated they again will take up post-conviction relief in a case to be heard early in the new term, which begins in October.

This time around, in another Texas case, the high court will decide whether death row inmates can ask for DNA testing under federal civil rights law -- a proposition which was only assumed for the sake of argument in the Osborne case out of Alaska.

Death row inmate Henry W. Skinner has consistently maintained his innocence. His imminent execution was stayed at the last hour by the Supreme Court in March.

Skinner, now 48, was sentenced for the 1993 murders of his girlfriend and her two adult sons in the Texas Panhandle city of Pampa on New Year's Eve. The girlfriend, Twila Busby, was strangled and beaten with an ax handle and her mentally disabled sons, Elwin Caler and Randy Busby, were stabbed, the Houston Chronicle reported.

Skinner, who worked as a paralegal at the time of his arrest, has asked for new DNA testing on blood found on knives at the murder scene and material beneath the victim's fingernails, as well as rape kit samples, the Chronicle said. But Texas has denied new DNA testing.

Skinner's case has drawn considerable media attention.

Time magazine said Skinner has been trying for 10 years to get access to his girlfriend's rape kit and two knives that may have been used in the killings, but prosecutors have turned him down.

So is Skinner getting a raw deal?

Not so fast, say Texas prosecutors.

A letter to the media from Mark D. White, attorney for Lynn Switzer, district attorney of Gray County, Texas, said the issues in the Skinner case are not so black and white. Switzer is a party in the case, Skinner vs. Switzer, to be heard by the Supreme Court next term.

Sent to KVII-TV, the ABC television affiliate in Amarillo, Texas, and posted on connectamarillo.com, the letter said in part, "There have been many inquiries about why Lynn Switzer has opposed Mr. Skinner's request for post-trial DNA testing. It is important for the citizens of Gray County to view that request in light of the procedural background of this case."

Before Skinner's trial, prosecutors tested DNA from the crime scene and used the results against Skinner in court. Skinner's lawyers made the strategic decision not to pursue further DNA testing because they believed it would hurt their client, White's letter said.

"Years later on appeal, as he sat on death row, Mr. Skinner argued that his attorneys were ineffective for failing to pursue DNA testing," the letter said.

In November 2005, White's letter said, Skinner's lead trial attorney testified during a federal evidence hearing the defense's blood spatter expert "determined that widespread amounts of blood stains on the clothing Mr. Skinner was wearing when he was arrested a few hours after the murders were inconsistent with Mr. Skinner's story that he had lain comatose on the sofa only a few feet away from where Twila was beaten and strangled to death; and ... that Mr. Skinner's videotaped statement to police about how he and Twila had fought with a stick (which police found embedded with blood and hair, and laying near Twila's body) was also inconsistent with Mr. Skinner's alibi."

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