On the right to DNA testing: Skinner v. Switzer

Our criminal justice system is sometimes arrogant.

We believe — at least, as the written code tells it — that our juries are infallible, or that their fallibility is an acceptable ill. And we must do so in order to keep the system working, to keep the problems contained. Most of the time, I agree with the acceptable ill attitude. But we often cling to that belief too doggedly, refusing to reconsider convictions when we should.

At no time is our responsibility to reconsider greater than when we decide to execute someone. Before we impose an irreversible sentence, we must take every opportunity we can to correct any possible mistake. We shouldn’t stand on process when someone’s life is at stake.

It would be wrong to refuse to hear a death-row appeal because the paperwork was filed a week late.

It would be wrong to refuse to consider new evidence that had surfaced after the jury made its decision.

And it would be wrong not to allow examination of evidence that existed but that had not been examined.

Yet that last is the concern of a case that the U.S. Supreme Court will hear tomorrow, the case of Hank Skinner (click through, then search for skinner):

The Texas state and federal courts — hearing Skinner’s habeas corpus pleas — refused to allow post-conviction testing of biological evidence, including blood, hair, fingernail clippings and vaginal swabs. The courts held that, under Texas law, a convict must prove, by a preponderance of the evidence, that he or she would not have been prosecuted or convicted had DNA testing been performed. To get DNA testing, a Texas inmate must also demonstrate that his failure to seek such testing at trial was not a strategic decision.

The law shifts the burden onto the defendant, who must show not just that doing the DNA testing would be reasonable, not just that the DNA testing might exonerate him, but that by a preponderance of the evidence, the state would have let him go without even going to trial if they’d done the tests then. And he has to do that just to get the testing done. Then to top that, he also has to explain away the procedural aspects of why this hadn’t been requested earlier.

Now, I’m as curious as the next guy, and I certainly want to ask why his defense team didn’t deal with this before. But I can’t imagine my decision on the testing hinging on that aspect. And I don’t want him to prove anything in order to get the biological evidence tested. The fact is that it’s available and it wasn’t tested, for whatever reasons, and, here: they’re going to kill Mr Skinner; they owe him an assurance that they did everything they could to be sure they’re right about that.

As if that weren’t enough, we have the heads of the justice departments of twenty-two states giving another crazy reason we should deny the request: they say that the states should get to decide this, and the federal government should keep out of it. If they’re short on money and personnel for testing, condemned prisoners will just have to accept their fates.

At least 22 states told the justices that granting Skinner DNA testing through a civil rights suit would undermine their individual statutes, which spell out when an inmate is entitled to it.

To allow this type of procedural legerdemain would both diminish the sovereign interests of the states and at the same time impose a significant burden on the states’ limited law enforcement resources, attorneys general from the 22 states wrote.

That sort of callousness seems enough of a reason, in itself, to demand that they take a step back and think. If it were your child standing accused, how would you want it to be handled? That couldn’t happen? Don’t count on that; sure, it could.

This should never have gotten to the Supreme Court, but now that it has, the court should require the testing. I’m not very confident that it will, though, with Justices Scalia, Thomas, Alito, and Roberts sure to vote against it. The outcome will likely rest on how Justice Kennedy votes, as I suspect this will be a five-to-four decision.

Haven’t there been enough people set free because DNA evidence showed that their convictions had been wrong? Can’t we see that this testing only makes sense from every just perspective? The only reason to refuse such a request is to stand with an arrogance that says, We did everything according to the law, and it’s too bad for you. If you think Mr Skinner is just a low-life who just isn’t worth keeping around, line up on that side.

But if you want to be more certain that the right man is being executed, do the tests.