Fearing Truth: Why Do Prosecutors Fight Against Post-Conviction DNA Tests?

03/22/2011 06:00 pm ET | Updated May 25, 2011
  • Locke Bowman Director, The Roderick MacArthur Justice Center, Northwestern

In the tortured logic of Henry Skinner's 16-year battle to show he didn't commit the brutal triple murder that landed him on the Texas Death Row, Monday, March 7, 2011, was a good day--sort of.

Since his 1995 conviction and death sentence, Skinner has been asking for a DNA test on crime scene evidence (the murder weapons, the victims' fingernails, vaginal swabs from one victim) that could potentially identify someone else as the killer. Skinner's lawyer failed to demand this testing prior to trial. So Skinner has filed multiple petitions in the Texas courts asking for post-conviction DNA testing, including two petitions filed under a Texas statute that specifically allows for such forensic testing when it will serve "the interests of justice." The Texas courts denied all of these petitions.

Two years ago, Skinner filed a case in federal court saying that the State of Texas had violated his right to procedural due process by disallowing his repeated attempts to have the evidence tested. But the federal court threw that case out on a technicality: as a convicted prisoner, Skinner wasn't allowed to raise issues about his criminal case under the civil rights law, the statute Skinner's case invoked, but instead had to bring his challenge under the federal habeas corpus act.

This brings us to March 7. The U.S. Supreme Court, which had accepted Skinner's case for review, issued an opinion that day reversing the lower federal courts, ruling that Skinner is entitled to challenge the Texas post-conviction procedure and holding that he'd filed under the proper statute. The lower court will have to decide the merits of Skinner's claim.

It's better for Skinner to have won than lost. Now, at least, he can argue that Texas was wrong to deny him the DNA tests he needs to prove his innocence. But the local Texas District Attorney can be depended upon to continue her tooth and nail fight to prevent the tests. The recent Supreme Court decision (though it's been widely applauded as a victory for justice) stops well short of saying that Henry Skinner will actually get the DNA testing he so obviously deserves before the State of Texas executes him.

Skinner is not the only prisoner to have petitioned unsuccessfully for years for a simple DNA test. Closer to home, in Peoria, Illinois in 1977, Johnnie Lee Savory (then only 14 years of age) was found guilty of killing two other children with a knife. The State introduced a pair of bloody trousers that had been seized from Savory's home and argued to the jury that the blood on the trousers belonged to the victims. During his more than 30 years in prison, Savory insisted he did not commit the crime. He asked for a DNA test of the blood on the trousers (and on scrapings taking from the victims' fingernails) to help prove his innocence. The Peoria County State's Attorney adamantly opposed the test--and, in 2001, the Illinois Supreme Court (in one of that court's more disappointing opinions) refused to permit it.

Later, after Savory was finally released on parole, he filed a civil rights case (much like the one Skinner brought) arguing that Illinois violated his constitutional rights by denying him access to the evidence so that he could do DNA testing to clear his name. The federal court adopted the State's arguments and concluded that Savory--who had been petitioning for years in the state courts for a DNA test--had waited too long to bring his federal case.

In the aftermath of the 1997 execution of James O'Dell, the Commonwealth of Virginia fought mightily (and successfully) to prevent DNA testing of seminal fluid recovered from the victim that could have shown that O'Dell had been executed for a rape and murder he did not commit. In a legal filing, Commonwealth officials candidly explained their position: if there was no match between O'Dell's DNA and the crime scene evidence, they argued, "it would be shouted from the rooftops that the Commonwealth of Virginia executed an innocent man." Indeed.

There is a pattern here.

No one can justifiably oppose post-conviction DNA testing that might expose (or help expose) a miscarriage of justice. The tests don't cost much (prisoners sometimes volunteer to pay for the tests themselves). If the test is inconclusive or confirms a conviction, no harm is done. Illinois has had a statute on the books for years that authorizes such tests. Contrary to the fears of some, that statute hasn't produced a flood of frivolous petitions. Yet many prosecutors remain vociferous in opposing DNA testing for convicted prisoners.

It is one of the hardest things in the world to admit a mistake--and that old saying applies with particular force to mistakes made in this country's criminal justice system. Statutes like the one in Illinois allowing for post-conviction DNA tests only work if people of good will apply them fairly in practice.

Henry Skinner's long and winding journey through the Texas and federal court systems has been an absurd--and obscene--waste of time and money. Why this great fear of truth and justice? Skinner should get his DNA test. Savory should get access to the evidence in his case so he can get his DNA test.

O'Dell's advocates in Virginia should have had their DNA test too. But that won't happen. Virginia prosecutors destroyed that evidence years ago. Shame on them. And shame on the Texas prosecutors and the judges who've wasted all this time obstructing the search for truth in Skinner's case.