Herbert Watkins Skinner received another reprieve from the death penalty. He was convicted of killing his girlfriend, Twila Busby, and her two adult sons. A previous execution date was suspended when the Supreme Court ruled that he had the right to sue the State of Texas to allow DNA testing of a number of items involved in the murder. But the Texas attorney general continued to fight in the lower courts to prevent the DNA testing. Last week the trial court agreed with the district attorney, but today the Texas Court of Criminal Appeals ordered a delay in the scheduled Wednesday execution to allow a full consideration of changes in the Texas law regarding DNA testing. Since the Supreme Court decision Texas has expanded the situations under which a defendant can obtain post conviction DNA testing of evidence.

Among the items Skinner wants tested are ” vaginal swabs from Busby contained in a rape kit; clippings from her fingernails; two knives, one found on Busby’s front porch and the second found in a plastic bag in the living room; a dish towel; and blood and hairs from a jacket found next to Busby’s body.” The Texas Attorney General argues that there is so much evidence against Skinner that even if the items had been tested before the trial and the DNA tests were negative Skinner would still have been convicted. After the murder Skinner was found at a friend’s house four blocks from the murder. There was a trail of blood from the murder scene to the friend’s house. The authorities claim that Skinner’s hands were cut with the same knife used to stab Busby’s sons. DNA tests on items already tested implicate Skinner. But as the foreman of the jury stated in a letter to the Dallas Morning News, “Since the trial, I and many of my fellow jurors have grown increasingly concerned that key pieces of DNA evidence from the crime scene remain untested,” the foreman, Danny Stewart, wrote. “Either the tests confirm Skinner’s guilt or prove his innocence and prevent the state from making an irreversible mistake. There is simply no downside.”

In 1984 the California legislature approved DNA testing for those convicted of serious felonies. In 1998 the legislature expanded the number of crimes for which a conviction would result in DNA testing. In 2004 California voters approved Proposition 69, the DNA Fingerprint, Unsolved Crime and Innocence Protection Act which required the immediate testing of all people arrested on a felony.

Last week the District Court of Appeals found the Act to violate the Fourth Amendment in that it does not required individualized suspicion or probable cause approved by a judge. Individualized suspicion is needed prior to any search of the body for a criminal investigation.

But the State argued that the DNA testing was not being done for a criminal investigation. Rather the purpose of the testing was for identification purposes. The touchstone of the Fourth Amendment is reasonableness. To determine if a search is reasonable the courts use the totality of the circumstances test under which they balance the needs of government against the privacy interest of the individual.

But in balancing the needs the court found that in as far at the State’s needs for identification versus the individual’s privacy rights, the individual wins. A fingerprint analysis using the FBI’s computers in Washington D. C. can be done in ten minutes while it takes on an average 31 days to develop a DNA profile. The electoral advertising for Proposition 69 all emphasized DNA’s use as an investigative tool, not its use for identification. The state’s regulations for the taking of DNA all require that identification of the arrestee occur prior to submitting the DNA sample. In fact they require that fingerprints be submitted along with the DNA sample.

On the other hand while it is easy to take a DNA sample to do so is quite invasive. The state gains a tremendous amount of information about the individual besides the identification of the individual. It may be possible using the DNA sample to determine what illnesses the person has and perhaps even the propensity of the person to commit violent acts. None of this is necessary for identification but it invades the privacy rights of the person without a prior court finding of probable cause. As a result of the balancing test the Court found the DNA testing of individuals arrested for a felony, but for whom there has been no finding of probable cause unconstitutional.

In District Attorney’s Office for Third Judicial Dist. v. Osborne the Supreme Court, last year, found a limited right to DNA samples. The question of how to get it was left open. Is a writ of habeas corpus with its limitations necessary or can a defendant file a civil rights suit pursuant to 42 U.S.C.1983. This week the Supreme Court in Skinner v. Switzer ruled that it can be obtained by a civil rights suit.

A writ of habeas corpus (literally: “you are to have the body” is a request to release a person from custody or confinement. But a request to test the DNA samples does not automatically result in a release from custody. It may be counterproductive in that it may help to prove guilt or it may be ambivalent. Thus since the request for DNA testing does not in and of itself result in the release of the body a Section 1983 action is appropriate.

As in the case we looked at yesterday, the decision is not one on the merits it only allows Henry Skinner to file an action. He still has to prove his case.

Allen Brown was indicted on bank robbery charges. The robbers used Scream masks. A Scream mask was found in an abandoned van stolen by the robbers. The police had the mask tested for DNA. They had reason to suspect Brown but they did not have probable cause to either arrest him or obtain a warrant to obtain DNA from him.

FBI Special Agent Robert Smith wrote an affidavit, sworn under oath, based upon information he received from Pennsylvania State Trooper Shane Lash, to obtain a warrant to get a sample of Brown’s DNA. Smith did not participate in the interviews leading up to the affidavit but Lash provided him with information. He declared that the robbers used Scream masks and that they stole a van from the Armstrong County School District. He said that the van had been found and that there was a mask in it. Furthermore he said that Brown did not live in Pennsylvania but that he was visiting at approximately the time of the robbery. He had left a family residence in his silver Volkswagon Jetta at 8:00 am and returned two hours later.

He also said that witnesses had seen the stolen van meet up with the Jetta. This is clearly false. Lash and Smith both testified in the District Court that Lash did not tell this to Smith and there is absolutely no evidence to back it up.

After the indictment Brown brought a motion to suppress the DNA on Franks grounds. In Franks v. Delaware the Supreme Court held that evidence seized as a result of a search warrant must be suppressed if it is both material and to the finding of probable cause and made either knowingly and intentionally or with reckless disregard for the truth. The parties agreed that the statement was material and false. The only question is whether it was made “either knowingly and intentionally or with reckless disregard for the truth.”

It all seems rather silly. There was not probable cause to obtain the warrant. Either Smith is lying or he is covering up for Lash who is lying. The District Court suppressed the evidence. Yet the U. S. Attorney appealed the matter and one of the three judges on the Third District Court of Appeals panel supported the government’s position. They claim there is no evidence that Smith acted either knowingly and intentionally or with reckless disregard for the truth. Instead of intending to lie the dissent argues he could have acted negligently in making up the story and negligence, according to Franks does not result in suppression. After all Smith claims that at the time he wrote the affidavit he thought he was telling the truth. ¹ He had copies of the police reports. He could have read them before he swore to the truth of his statements under oath. The Third Circuit correctly ruled that:

Because the total lack of an evidentiary basis for making an averment can constitute an obvious reason for doubting that averment‘s veracity, the District Court did not clearly err in finding that Smith‘s conduct rose beyond the level of negligence, to the point of recklessness.

The only questions remaining are why was so much time and money spent on this case and why isn’t Smith being fired?

New DNA tests dispute the conviction of Claude Jones for the 1989 Texas murder of a liquor store owner, Allen Hilzendager, during a robbery. He was executed on December 7, 2000 in the last days of Governor George Bush’s term. His lawyers asked the governor to delay the execution to allow for the DNA testing of a strand of hair used at the trial. But the message was never delivered to Bush by his staff and Jones was executed.

Prior to the trial no DNA test was done on the strand. During the trial a forensic expert testified that the strand of hair could have belonged to Jones and that it could not have belonged to the victim. But the recently completed DNA analysis indicates not only that the strand did not come from Jones but it may have belonged to the victim.

The only other evidence against Jones was the testimony of an accomplice. The accomplice, Timothy Jordan, has since recanted his testimony. At trial Jordan, who did not enter the store but who planned the robbery and may have provided the gun testified that Jones told him that he had killed the store owner. Accomplice testimony is inherently unreliable. They tend to exaggerate the role of others and minimize their own role in order to obtain a lesser sentence.

The test does not exonerate Jones but it does cast doubt upon his conviction. Texas law takes into account the unreliability of co-defendant testimony by requiring some corroborating evidence. At Jones’ trial the strand of hair served as the only corroborating evidence. Without it there would not have been sufficient evidence to convict him. Furthermore we do not know what the jury would have done without the incorrect testimony of the forensic expert. If a DNA test would have been done they could not convicted or executed him without other corroborating evidence.

Bobby Dixon and Phillip Bivens were exonerated by DNA evidence of rape and murder after spending 31 years in prison for the 1979 murder of Eva Patterson in Hattiesburg, Mississippi. A third innocent person, Larry Ruffin died in prison. The DNA evidence identified another man who is imprisoned for the 1981 rape of another woman.

The exonerations occurred despite the fact that Bivens and Dixon confessed to the crime and plead guilty. There is evidence that they were coerced into pleading guilty by the police. They testified against Larry Ruffin who went to trial and was found guilty. At trial they changed their testimony and admitted that none of them raped and killed Patterson. According to the Innocence Project which pushed for the exoneration of the 259 DNA exonerations since 1989, 63 involved confessions and 19 involved guilty pleas.

The Supreme Court reaffirmed Jackson v. Virginia. In Jackson v. Virginia the Supreme Court held:

that a state prisoner is entitled to habeas corpus relief if a federal judge finds that “upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.”

This week in E. K. McDaniel v.Troy Brown the Court stated that Federal Courts can only grant a writ of habeas corpus if no rational trier of the fact could have found proof of guilt beyond a reasonable doubt based upon the record at trial without excluding unreliable evidence or evidence wrongly admitted.

Troy Brown was convicted of raping a nine year old girl and sentenced to life in prison. A significant portion of the evidence at trial consisted of the testimony of an expert regarding DNA samples. The expert made two major mistakes. First she committed the “prosecutor’s fallacy.” The “prosecutor’s fallacy” “is the assumption that the random match probability is the same as the probability that the defendant was not the source of the DNA sample.” This erroneously allows the prosecutor or the expert to say that the odds that another person randomly chosen has the same DNA is the same as the odds of the accused being innocent.

Troy Brown has three brother. Two of them, like Troy live near him and the victim in Nevada. The second error made by the expert was to overestimate the chances of one of his brothers having the same DNA as found in the victim. She estimated that the odds of two brothers sharing the same DNA is 1 in 6500. The actual odds of two brothers having the same DNA is 1 in 263 and the odds of two out of four brothers having the same DNA is 1 in 66.

The Supreme Court said that the habeas could only be granted based upon the testimony at trial even if the evidence was unreliable or erroneous. But in any case even if the correct evidence had been submitted a reasonable jury could have convicted Brown. There was sufficient corroborating evidence when looked at it using only the evidence most favorable to the prosecutor which is the standard in post trial appeals where a jury has convicted the defendant.

The defendant also raised a due process claim challenging the reliability of the trial DNA evidence. But since that issue was ont raised at trial or on direct appeal the Supreme Court refused to hear it.

U. S. District Judge Charles Breyer refused a request by the ACLU for an order to forbid the state of California from enforcing a proposition which requires that everyone arrested on felony charges be required to give a DNA sample.

The ACLU has sued the state to forbid the enforcement of Proposition 69 which required the taking of a DNA sample from everyone arrested on a felony charge. Prior to the passage of Proposition 69 only those convicted of a sex crime or a serious felony were required to provide DNA samples. The ACLU moved for an order pending the resolution of the suit requiring the state not to enforce the proposition. The ACLU claimed that taking of DNA samples on everyone who is arrested on a felony instead of limiting the samples to those who committed crimes that can be detected by DNA testing. The Fourth Amendment allows only reasonable searches and the ACLU is arguing that the taking of a DNA sample from one’s mouth is a search and that it is unreasonable to take a saliva sample from someone who is not convicted of a crime or from someone charged with a crime where a DNA sample could not help prove guilt or innocence.

But Judge Brewer ruled that DNA is a tool used to identify people such as finger prints and therefore it is not unreasonable to take a sample. As a result he held that the ACLU is unlikely to win its suit. Therefore he denied the request for a temporary order prohibiting enforcement of the proposition while the suit is pending.

The New York Court of Appeals upheld the conviction of Michael J. Brown on sexual assault charges over claims that the admission of of a DNA report processed by a subcontractor laboratory to the Office of the Chief Medical Examiner (OCME) through the testimony of a forensic biologist from OCME violated the right of confrontation as discussed in Melendez-Diaz v Massachusetts.

At trial there was evidence that the defendant followed a nine year old girl into the apartment house of a friend in Queens and sexually assaulted her in 1993. She was unable to identify him. In 2002 OCME submitted the rape kit to a private licensed laboratory, Bode. It matched the DNA of Brown who had been arrested on unrelated charges in Maryland. An analyst from OCME then compared the two samples. At trial she introduced several reports and graphs developed by Bode in its comparison of the DNA.

The Supreme Court in Melendez-Diaz ruled that affidavits prepared by a forensic chemist were testimonial under Crawford. Citing Crawford, Melendez-Diaz stated

“Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent–that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements … contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”

The Court in Melendez-Diaz had little trouble finding that the chemist’s affidavits were testimonial and that their admission violated the Confrontation Clause.

The New York Court of Appeals attempts to differentiate the DNA reports from the chemist’s reports in Melendez-Diaz by saying that the chemist in Melendez-Diaz drew the conclusion that the item tested was cocaine while the reports in Brown did not draw any conclusions. It was the analyst from OCME who testified who drew the conclusions that Brown’s DNA matched that taken from the victim. But the Supreme Court in Melendez-Diaz rejected the respondent’s claim that the chemist’s personal appearance was not necessary because it was the “result of neutral, scientific testing.” The New York Court is making the same claim and it should not hold up under the Supreme Court’s decision in Melendez-Diaz.

The affidavits in Melendez-Diaz are under oath whereas the reports in Brown are not under oath. Some might argue that this makes the Brown reports less testimonial. But it also makes them less reliable and more in need of cross examination. Furthermore they were made for the purpose of litigation and in expectation that they would be introduced into evidence. As such their testimonial nature should not be questioned.

Yesterday a statute took effect in Texas. All prosecutors and parole boards now have access to DNA evidence for crimes for which the statute of limitations has passed. This will allow them to use the information to attempt to lengthen the sentence of individuals for crimes in which the statute of limitations has not passed.

For example, say a defendant’s DNA matches that in a rape twenty years ago. Since the statute of limitations has passed he cannot be convicted for the old crime. But now he is charged with a rape that happened last year. The prosecutor could use the evidence of the old rape to attempt to get the defendant the maximum sentence in the newer crime.

If the information is only given to prosecutors and parole boards the law may well violate Wardius v. Oregon In Wardius the Supreme Court said that due process demands that discovery must be mutual. In other words if a statute allows a prosecutor access to information it must also allow the defense access to the information.

If the defense is given the information, the cost of defending the case goes way up as defense counsel needs to hire experts to test the DNA and challenge the validity of the police lab’s testing of the twenty year old substance.

While the law allows evidence to be used at sentencing that may not be admissible at trial, the use of DNA to show prior criminal activity where there was no trial or adversarial testing of the evidence may also violate due process. DNA evidence is very incriminating. Yet we know it is not 100% accurate and before its use to aggravate a sentence it should be subject to a jury using a beyond a reasonable doubt standard.