Execution delayed in DNA case

Lyle Denniston

The Supreme Court on Wednesday evening delayed the execution in Texas of Henry W. Skinner, at least until the Court acts on his new case seeking to pursue a civil rights claim that he was denied a chance to have DNA evidence tested in an attempt to prove his innocence of a triple murder more than 16 years ago. The Court’s order blocked an execution that had been scheduled for 7 p.m. Washington time. The Court has not yet scheduled its consideration of his pending appeal (Skinner v. Switzer, 09-9000; his stay application was 09A743).

Skinner is seeking to raise an issue that the Justices had agreed to review last Term in District Attorney’s Office v. Osborne (08-6). The Court decided the Osborne case on June 18, but left unresolved that specific issue. The question is whether a state inmate seeking access to and testing of DNA evidence may pursue that claim under civil rights law (Section 1983), rather than in a federal habeas challenge. Skinner’s lawyers contend that he has tried unsuccessfully to use Texas state procedures for DNA testing, so his only remaining chance to get it is through a civil rights claim.


He was convicted in 1995 and sentenced to death for the slaying of his live-in girlfriend and her two mentally retarded, adult sons, in their home in the small town of Pampa, Texas, on New Year’s Eve in 1993. He was in the home during the murder rampage, but has contended repeatedly since then that he was unconscious from using drugs and alcohol earlier in the evening. He also has contended that new evidence, about the physical nature of the killings, indicates that in his condition he had neither the strength nor clarity of mind to commit the crimes.

For ten years, his lawyers have said, he has sought access to DNA evidence that was never tested by prosecutors. He filed his federal civil rights claim only after those efforts had failed, his counsel has said. Although prosecutors arranged for some DNA tests on some of the evidence, and used the results to help convict Skinner, his attorneys contend that prosecutors only sought selective testing of crime scene materials.

In his petition for review, Skinner contended that he has a constitutional interest under state law in seeking to use evidence that would help prove his innocence, but that he has been frustrated in trying to vindicate that interest in state proceedings. In addition, the petition argued that the conflict among lower courts on whether a DNA access claim can be pursued under civil rights law, or only under habeas law, has intensified since the Supreme Court agreed to examine that issue in the Osborne case last Term. Thus, it said, the need for Supreme Court guidance is now “more urgent.”

Lawyers on both sides have completed all of the filings in the case on that issue, so the Court is expected to schedule it for Conference within a matter of weeks. In the meantime, the postponement granted Wednesday will stay in effect until the petition is acted upon and, if granted, until it is decided. If review is denied, the postponement will expire automatically and the state could then schedule execution anew. If review is granted, a ruling would not be expected until next Term, starting next October.