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

 Posted on March 24,2010 in Uncategorized

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.