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Supreme Court Looks|at DNA Testing Case

WASHINGTON (CN) - A case argued before the Supreme Court Wednesday asks the justices to determine whether an inmate seeking DNA evidence can sue under federal civil rights law or whether his only relief is under habeas law.

Texas death row inmate Hank Skinner, who was convicted of murdering his girlfriend and her two sons in 1993, says he was denied due process by state officials who refused to turn over DNA evidence.

Texas and lower federal courts said Skinner gave up his chance by making a strategic choice with his lawyer not to request testing before trial.

"He wants the DNA," Justice Stephen Breyer said. "He thinks it's going to be exculpatory. He doesn't know that till he gets it."

Skinner escaped execution in March, by less than an hour, when the Supreme Court granted a stay in his case.

The attorney for Texas, Gregory Coleman, said Skinner's avenue for relief was a habeas petition, not a civil rights action.

But the justices said habeas law requires that exculpatory evidence show that a petitioner is not guilty, and Skinner never said that the evidence would "necessarily" exonerate him.

"He says exculpatory evidence could demonstrate that he is not guilty," Chief Justice John Roberts said. "There is a lot of exculpatory evidence that simply is helpful and doesn't mean it will demonstrate. He says it could."

Breyer pointed to Justice Antonin Scalia's concurring opinion in the 2005 Supreme Court decision Wilkinson v. Dotson.

"Dotson says that you go into habeas if winning -- i.e., getting the DNA -- would necessarily spell speedier release," he said. "End of the matter."

Justice Elena Kagan said the evidence had to imply an invalid conviction or secure an earlier release, "and either you think that your case fits one of those or both of those standards, or you are asking us to abandon that standard."

Breyer said the concern was that if Texas won, "all kinds of things will be stuffed into habeas which don't belong there."

Justice Ruth Bader Ginsburg said Texas was asking for a modification of the Dotson formula, which states that a habeas petition "would necessarily demonstrate the invalidity of the conviction or sentence," because Skinner was saying the DNA evidence "may not demonstrate it at all." She asked what that "precise modification" would be.

Coleman said Skinner's petition seeking to invalidate his conviction falls under habeas and "comfortably fits" the decisions made by the courts in Texas.

Justice Sonia Sotomayor asked what Skinner's habeas petition would look like, since habeas can only be brought on the ground that he is in custody in violation of federal law.

"Tell me how he can write a complaint that says the due process violation of access to DNA, means that this defendant is in custody in violation of federal law as opposed to having had a statutory right improperly denied him," Sotomayor said. "Tell me, how does he write that complaint to get into habeas?"

Coleman said Skinner's claim fit into habeas because he believed he received ineffective assistance of counsel.

Skinner's attorney, Robert Owen, argued that the Texas statute, which lays out the conditions under which a petitioner can seek DNA evidence, was unconstitutional as construed by the state court.

"It interpreted this as a blanket prescription on seeking testing for anybody who didn't seek it prior to trial," Owen said, without a provision for an exception.

"It's their statute," Scalia said. "We don't reinterpret state statutes because the state supreme court interpreted it strangely. It seems to me you are either challenging the statute or -- or you don't belong here."

The case is 09-9000, Skinner v. Switzer.

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