Wednesday, November 09, 2011


Just up at CNN...

Is this short piece of mine about the Hank Skinner case.

What could DNA testing accomplish in a case where the defendant admits his presence at the scene and was found hiding in a closet covered in the victims' blood? The jury rejected his "I was passed out!" defense. It's time to stop delaying his sentence.
Anon-- If you are right, what's the harm in testing it?
Defendants already believe DNA is magic and will give oracle-like powers to juries to determine guilt. It's not. It's a very scientific fingerprint, and is most useful for attacking/supporting identity.

Allowing any defendant to secure either post or pre trial DNA testing without a gate keeping measure means more dilatory tactics that make it more expensive to seek and secure convictions. Money ends up forcing prosecutors into bad plea bargaining positions to avoid costly testing. Time and cash strapped state labs devote more of their resources to DNA testing, sending out analysts to testify and responding to requests. Some of them close. Good attorneys get laid off by public employers like DAs, the AGs, etc., because more funds are diverted to DNA testing that ultimately never gets used because identity isn't at issue and DNA evidence isn't relevant.

But any time a prosecutor acts as a gatekeeper for this kind of evidence she gets accused of trying to hide the ball and caring more about the conviction instead of the truth.
It's a pretty lame dilatory tactic, because once the test is done, you move on.

Anon, there is no doubt that identity is what is being questioned in this case. If you are in criminal law, you also understand that identity is almost always the challenged element in a murder case.
Anon - I am confused by the suggestion that identity is somehow not at issue in the Skinner case. If the DNA can point to another person being present at the crime scene it will speak directly to the standard of conviction, beyond a reasonable doubt. How is that not an issue?

If cost is the real concern abolishing capital punishment is surely the soundest fiscal decision. Non-capital murder trials on average cost approximately $1 million less than capital trials. But if that option is off the table then avoiding irreversible error is essential to giving the process any legitimacy. I think it is important to keep in mind that when error is made the prisoner is not the only one wronged. His family, the victim's family, the prosecutor who committed to executing an innocent man, the warden who oversees the execution, the executioner...the list is long and deserving of every possible precaution. DNA testing in these cases is by no means the reason that DAs and AGs are being laid off. The state of MN has abolished capital punishment in 1907 and MN laid off county prosecutors and public defenders last summer.

If the DNA evidence is of no help to Mr. Skinner I'm happy to eat crow, I prefer it to the alternative...
This is a great piece, Mark.
What if the DNA showed a fourth profile? It wouldn't prove anything and certainly not actual innocence. It would at most prove a fourth person left a hair or skin cell behind.

Skinner was found in a closet covered with the victims' blood. The police followed a trail of blood to his location. It is uncontested, even by him, that he was present. The uncle might have been there; he might not have. Testing for DNA evidence now would not help Skinner's case in any way.

I'm sympathetic to the concern. I really am. No prosecutor should oppose DNA testing where that testing might be probative of actual innocence. But it just won't be in this case. It's a waste of time and money to do it, and allowing Skinner to do so sets a bad precedent.

Identity is often at issue in murder cases. But DNA could not disprove Skinner's presence at the scene. He made his argument that he was passed out and didn't do it. The jury rejected it. That kind of evidence did not cause reasonable doubt then, and it certainly won't be clear and convincing in favor of actual innocence now.

As, again, I think you well know, there is no danger of a "precedent" here, because Texas already changed its law to make DNA easier to get, and that law does not apply to Skinner.

Of course if someone else raped the victim or stabbed her, that shows innocence, and that is what Skinner wants tested.

It's really odd (and this is what I was getting at in the article) how you seem to make fighting a $600 test seem like some kind of stand for principle. Stubborness is not a principle.
Hank Skinner wasn't accused of rape, and only stabbed two of the victims. DNA evidence left by a fourth person on the bodies would not be probative of innocence. DNA evidence on the weapons would be as probative of a fourth victim as a second perpetrator. If he wants to make his case for actual innocence he needs to harp on the testimony showing his BAC and codeine levels. DNA testing is a buzzy topic in the media but simply doesn't apply to this case, and prosecutors are not wrong for acting as gatekeepers in preventing meritless Ch. 64 claims.
The rapist is usually the murderer (again, as you well know).

You seem to want the standard to be that the convict must prove innocence beyond any doubt and exclude all alternatives, which is simply not right (in a lot of ways).

It's wrong to kill someone if there is important evidence left to be tested. I think Texas acknowledged this in changing the law.
A convict filing an 11.07 writ of habeas corpus must prove his innocence by clear and convincing evidence. The standard for pre-trial testing of DNA is quite different than post-conviction testing, which is the difference between Chapter 64 and, well, Brady.

A person who has already been convicted (that is, a jury found there to be no reasonable doubt as to his guilt) ought to have a higher burden of proving his innocence, and we absolutely ought to erect procedural safeguards.

If that is a problem, then every procedural default rule under 11.07, similar laws in other states, and AEDPA is a due process violation. But courts have (consistently) ruled that procedural default rules serve an important purpose. And like those, the old version of Chapter 64 had important safeguards against frivolous motions for DNA testing. The new Chapter 64 is going to lead to a glut of post-trial motions for DNA testing that will tax our already overburdened labs, and exonerations will not rise significantly, if at all.

Because in the vast majority of cases, DNA is just not useful.
In murder cases, DNA is often useful. The number of exonerations in this country attests to that. It is especially useful in cases where a sexual assault is a part of the offense.

I'm on record as thinking that the AEDPA is wrong-headed and counterproductive (I'll leave due process out of it-- my argument is political, not constitutional). It was supposed to create efficiency and has done the opposite, while making valid claims difficult. There are several laws passed by Congress and signed by the President that were poorly thought out and have proven to be failures-- the AEDPA and the sentencing guidelines chief among them.
I'm also on record that anonymous comments are cowardly, but have allowed yours as they seem at least well-informed on the law. It would have more credibility if you put your name behind it-- you seem to have strong convictions, but that is undermined by the fact you are hiding your identity.
How many DNA exonerations are there in murder cases relative to the number of murder prosecutions there are per year? I have to imagine that the number is fairly small, as a proportion.

Again, I am not opposed to free, easily-available DNA testing in cases where DNA testing might be useful. But a blanket "DNA testing upon request" strikes me as wrong-headed and prone to abuse by defendants, particularly capital defendants, seeking to delay the execution of sentence with meritless filings. The old Chapter 64 worked pretty well (I have litigated many motions under it). This change seems rushed and motivated by political grandstanding about a few notorious exonerations (like Anthony Graves) and less about making sure that trials are fundamentally fair and defendants can obtain meaningful post-conviction review.
So... executing a "fairly small" number of innocent people is ok?

Of course it isn't. And the price in time and money to do the DNA tests is more than offset by the public interest in not executing innocent people.
That's stacking the deck. "Executing an innocent person" is bad, no doubt, but what, exactly, is to be our criterion for not doing it? Even with mandatory DNA testing in every case, we could not guarantee that we wouldn't execute an innocent person.

And then if capital punishment were outlawed, we'd be having the same debate over life without parole, saying that it was inhumane and that we should always have the possibility of parole.

Instead, we have an awesome adversarial system and many avenues of post-conviction review, such as direct appeal, state habeas, and federal habeas petitions. As a part of those, and in some cases, in separate ways, we have procedures where convicts can obtain DNA testing, court-appointed counsel, and so on. We HAVE a good system for making sure that convictions are well-tested, as good as we can.

But if we make absolute certainty that the person convicted is guilty our criterion, then the criminal justice system cannot function. We are never 100% certain, which is why we use the reasonable doubt standard. And yes, that unfortunately means that we might get it wrong. But the alternative is to abandon seeking redress for criminal wrongs at all, and society itself cannot function without the laws being enforced and crime nullified by punishment.
No, the alternative is to eliminate the death penalty and keep life sentences for adult murderers.

The interesting thing about your "slippery slope" argument (if we get rid of the death penalty, then we will get rid of life sentences next) is that there is simply no basis for it in the states that don't have the death penalty.

Here in Minnesota they got rid of the death penalty 100 years ago, in 1911. Yet, somehow, we still have the penalty of life without parole for murderers.

If you are clinging to the death penalty as an institution, while conceding that innocents will be killed, and justifying it on the basis that Americans don't have the self-restraint to stop at banishing capital punishment, well... come on up. It's pretty nice up here. Or, if not that, head next door to New Mexico, which got rid of the death penalty and still has life without parole, and will. Or New York. Or Alaska, or North Dakota, or Hawaii.... all of these states got rid of the death penalty without sliding down that slippery slope, and I find it pretty hard to believe that you really think that Texans somehow would do otherwise if they got rid of the death penalty.

You think more of Texas than that, and so do I.
Thanks for that well-reasoned analysis.

The lust of the State of Texas for executions does a disservice to any rational argument in favor of capital punishment.

As an undergrad at Baylor, I took a wonderful course taught by Dr. Dan McGee--"Christian Ethics", it was called. Among a number of topics (some of which would later become national issues, like euthanasia), the death penalty argument was fascinating. Whatever arguments we discerned could be made to support capital punishment, none called for enthusiasm for it.
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