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

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 and 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.