Procedure Geek: The Skinner Case [Updated 25 May 2010]

I am a procedure geek. As Robert Ragazzo, my law school civil procedure professor, used to say, "procedure is everything."

Today the U.S. Supreme Court granted a stay of execution to Hank Skinner. Here's a little explanation of how, procedurally, Skinner got there and where he goes next.
The case before the Supreme Court is Skinner v. Switzer, a civil lawsuit between Hank Skinner and District Attorney Lynn Switzer. Skinner filed suit against Switzer alleging that her failure to test the biological material in his case violated his civil rights. Here's the complaint.

Before filing that suit, Skinner tried to get the state courts to order DNA testing. The request was resisted by the prosecutor and denied by the courts, for various reasons.

Before seeking DNA testing in state court, Skinner had appealed his conviction directly to the Texas Court of Criminal Appeals, and thence by certiorari to the U.S. Supreme Court. Direct appeals were exhausted in 1998.

Following the denial of certiorari, Skinner filed a state-court writ of habeas corpus under Article 11.071 of the Texas Code of Criminal Procedure. That habeas was dismissed on December 2, 1998 as untimely filed.

Following the dismissal of the state writ, Skinner filed a federal-court writ of habeas corpus (alleging ineffective assistance of counsel at trial) on February 4, 1999.

While the federal habeas was pending, Article 11.071 was amended and the Texas Court of Criminal Appeals, on August 31, 2000, gave Skinner a new filing date. Skinner filed a timely 11.071 writ, but the application was dismissed pursuant to the abstention doctrine because the federal writ was pending, even though the federal action had been stayed.

On February 22, 2007 Skinner's federal habeas writ was denied by the U.S. District Court for the Northern District of Texas. He appealed that denial to the U.S. Court of Appeals for the Fifth Circuit, which affirmed it on July 14, 2009.

On November 25, 2009, Skinner filed a petition for writ of certiorari with the U.S. Supreme Court, seeking review of the Fifth Circuit's decision. Two days later he filed the complaint alleging Switzer's violation of his civil rights.

On March, 1, 2010 the U.S. Supreme Court denied Skinner's petition for writ of certiorari.

On the same day Skinner filed another 11.071 writ of habeas corpus in state court; that writ was summarily dismissed as a subsequent writ (even though the Court of Criminal Appeals had never heard an 11.071 writ on his behalf) on March 17, 2010.

That summarizes the procedure up through the filing of the federal civil complaint. (For those of you keeping track at home, only two courts have heard any evidence: the trial court, and the U.S. District Court on habeas.)

On January 20, 2010 the U.S. District Court dismissed Skinner's civil-rights suit. The next day Skinner appealed that case to the Fifth Circuit. On February 4, 2010 the Fifth Circuit affirmed the dismissal of the civil-rights suit.

On February 12, 2010 Skinner filed with the U.S. Supreme Court the petition for writ of certiorari and the application for stay of execution that was granted this evening.

A writ of certiorari is the instrument by which the Supreme Court reviews a trial court's judgment. The Supreme Court does not have to grant certiorari—four of nine Justice must agree.

So the status now is that Skinner's execution is stayed pending the Supreme Court's decision on whether to grant certiorari. Five votes are required for a stay of execution, and only four are required for certiorari, so if the Supreme Court is not going to grant certiorari anyway it would have made more sense not to grant the stay.

If four justices agree to grant certiorari, the Supreme Court will consider the merits of the appeal—whether a state's failure to test DNA can be challenged by a convict in a civil rights lawsuit. There is a split of authority—several federal appellate circuits allow such challenges, but not the Fourth Circuit or the Fifth Circuit—which is one of the reasons that the Supreme Court will sometimes grant certiorari.

[Update: The United States Supreme Court granted certiorari on May 24, 2010. Onward to the merits!]

The Supreme Court could resolve the circuit split against Skinner; this would have the same effect as denial of certiorari—Skinner would have no obvious way to compel the DNA testing. The stay would be lifted, and the State would set another execution date, probably within 30 days.

If the Supreme Court resolves the circuit split in Skinner's favor, the case returns to the U.S. District Court to be heard on the merits. From there it is appealed again (whoever wins) to the Fifth Circuit Court of Appeals, and possibly back to the U.S. Supreme Court.

If the State is ordered to provide the evidence for testing and that ruling is upheld, the DNA gets tested. If it is exculpatory, it's not entirely clear what Skinner's remedy is. As I previously noted, factual innocence is not itself grounds for reversal of a death sentence. It has to be coupled with a constitutional violation like ineffective assistance of counsel (but here Skinner's trial counsel has blocked an IAC claim by saying that the decision not to seek testing of the DNA was a strategic one) or prosecutorial misconduct.

In sum, Skinner still has two ways to lose in the U.S. Supreme Court: he could be denied certiorari, or he could be denied relief on the merits. Either way, he's out of luck. Only if cert and relief on the merits are granted does Skinner have a chance—if he is innocent—of having his name cleared in this lifetime. Even then, it's a long shot and it'll keep his lawyers busy for years.
 

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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12 Responses to Procedure Geek: The Skinner Case [Updated 25 May 2010]

  1. They can also file an original habeas petition with the Supreme Court like Troy Davis did. After the order in that case, the court seems ready to say something about actual innocence as a constitutional violation in itself.

  2. Mike Trent says:

    Fascinating, thanks for the breakdown, Mark. Sounds like you’re right: I would not bet on anything good happening for Mr. Skinner…

  3. Miranda Meador says:

    Who was Skinner’s trial lawyer and who are he lawyers handling his case now?

  4. Rob Owen says:

    This is an impressively precise and detailed summary, Mark. I’d add only one slight qualification. If the DNA test results were exculpatory, Mr. Skinner could pursue an application for post-conviction writ of habeas corpus in state court under art. 11.071, V.A.C.C.P., because in Texas state court (in contrast to federal court) “actual innocence” can constitute a stand-alone claim for relief from the conviction (in contrast to federal habeas proceedings, in which a prisoner generally advances a claim of “actual innocence” to explain why the reviewing court should reach the merits of the prisoner’s otherwise procedurally defaulted claim that his constitutional rights were violated at trial). Many states do not recognize such a stand-alone “actual innocence” claim for relief at the post-conviction stage, but Texas does. For what it’s worth, I think Mr. Bynum is right that such a claim would also appear to be ripe to present to the Supreme Court on an original application for habeas, given what happened in Davis.
    Just my two cents.

  5. Mark,

    If Skinner is denied cert, or ultimately loses on the merits, do you think Gov. Perry will do something? Irrespective of whether he has the authority to order testing, I suppose he could accomplish it indirectly by granting a temporary stay for the purpose of conducting testing, thereby letting the DA know that he wouldn’t allow the execution to proceed unless and until testing took place.

    BG

  6. Maybe that’s all Skinner really wants these days: more time.

  7. Pingback: The Hypocritical Gene | Probable Cause

  8. Amanda Foster says:

    very interesting blog……
    This case confuses the hell out of me. I first came across this on change.org I think?
    It sounded like a travesty, I was outraged how could this be happening?
    So I read some of the appeal transcripts and various blogs. I got shot down for even suggesting the DNA should be tested, I was a PTO groupie and a bleeding heat liberal.
    Looking at the evidence presented at trial – I probably would have gone with guilty. There’s the blood spatter evidence, the fact he hid in a closet and, of course the circumstantial he was ‘there’.
    But no tests on the probable murder weapons? why not?
    I know the defence decided against further testing as a strategy (they thought it would implicate him further) but shouldn’t the prosecution be bound to test everything, if they had, imagine the time it would have saved.

    • Mark Bennett says:

      Amanda, can you give me a link to any document talking about the blood spatter evidence?

      I saw references to that evidence and to a purported confession in the comments on a pro-DP blog. I politely asked for a link or a cite, and got nothing. I think the death penalty fans might be making facts up to suit them.

  9. Amanda Foster says:

    Mark, the blood spatter report can be found on Hank Skinners site, it’s contained in the evidentiary hearings transcript – volume 2.

  10. balu arvind says:

    Once the question of whether the Great Writ or a Civil Rights action is used to obtain this sort of relief is answered, as 7 Circuits have, that it can be, the question of whether the evidence is probative must be heard in the lower Court at a hearing. Obviously, Skinners lawyers allege it is, so the question of error is then based on a Chapman standard analysis. Skinner has alleged that DNA is probative and this is not for delay. The preponderance of evidence standard is a low standard. Once testing is done, then if the test excludes Skinner or advances another theory and is probative, the question of whether the Trier would convict or acquit absent the error is subject to Chapman analysis meaning absent the error is it beyond a reasonable doubt that the jury would convict with the new evidence. The lower Court does not conduct retrials. The issue of innocence is the critical issue; and if there is any chance of that, that is enough to demand testing; the question before the Court is historical and procedural; the DNA issue only strengthens the petition as it becomes very serious. The questions as to probative value and delay have been addressed by the lower Courts, and the issue is procedural; if they haven’t been, a hearing is needed, and the final error analysis is based on a constitutional standard of review, as this is a due process claim; the inability to present evidence due to the unavailability of DNA testing at the time-is it beyond a reasonable doubt that the jury would convict with this DNA and the theory advanced; any possibility Trier would see the DNA as exculpatory requires reversal and retrial. The sole issue before the high Court is procedural; can 42USC1983 be used instead of Habeas Corpus. If life is constitutional right it has been established that 42USC1983 can be used to prevent physical harm in emergency situations, such as danger in custody and medical negligence; then as 7 Circuits agree the procedure used is not as significant as what’s at stake.

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