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Court considers Texas death row DNA case

By David Morgan

WASHINGTON (Reuters) - The Supreme Court on Wednesday considered whether a Texas death row inmate should be allowed to use civil rights law to gain access to DNA evidence that could prove his innocence in a triple murder.

In a case with broad implications for states with the death penalty, the court heard arguments on whether Texas inmate Henry Skinner can use civil rights law to examine DNA evidence rather than a more restrictive federal law under which he would have to prove his conviction invalid.

Skinner was convicted and sentenced to death for the 1993 New Year's Eve slayings of his girlfriend, Twila Busby, and her two adult sons in the Pampa, Texas, home they all shared.

He has always maintained his innocence and is seeking DNA testing of key evidence from the crime scene including a bloody dish towel, two knives, a man's jacket, Busby's fingernail clippings and swabs from a rape kit.

The Supreme Court agreed to hear Skinner's case after granting him a stay on March 24, about an hour before his scheduled execution. The justices did not indicate when they might rule. A decision could come as late as next year.

Much of Wednesday's hourlong debate centered on whether Skinner was trying to use the civil rights law's broader language to avoid an avenue known as a federal habeas challenge that Congress established to allow inmates to try to overturn their convictions and sentencings.

Skinner's attorney, Robert Owen, told the court that habeas law did not apply because Skinner was not seeking to overturn his conviction now but only to gain access to DNA testing.

"It does not necessarily imply the conviction is lawfully invalid," he said.

VODKA AND CODEINE

But several justices challenged that a conviction challenge was still part of the case.

"It seems as though you are splitting your claim," said Justice Ruth Bader Ginsburg. "You want discovery, and if the discovery is favorable, you ask for relief from the sentence."

U.S. courts rejected Skinner's request for the DNA tests on the grounds it must be brought under a habeas challenge.

DNA evidence that was tested by prosecutors either proved inconclusive or showed the blood of Busby and one of her sons to be on Skinner's clothing.

Skinner, who claims he was incapacitated when the slayings occurred by large amounts of vodka and codeine, hopes new tests will support his long-standing claim that Busby could have been strangled and bludgeoned by her late uncle, an ex-convict whose sexual advances witnesses said Busby rejected hours before the murders.

But Gregory Coleman, attorney for the Texas prosecutor in Skinner's case, accused Skinner of engaging in "artful pleading" by changing his argument to suit each new legal challenge.

"This is an attack on the criminal proceeding," Coleman said. "He's trying to invalidate his conviction."

Justices took issue with Coleman's assertion that Skinner's case should be handled as a habeas challenge and suggested that ruling in favor of the Texas prosecutor could require the court to establish a new precedent.

The Texas prosecutor's brief warned that granting Skinner access to new DNA evidence could subject state courts across the country to a wave of costly civil rights challenges by death row inmates seeking to re-examine a range of trial evidence long after their convictions.

The prosecutor's argument was backed by friends of the court filings from groups including 21 other states.

The justices ruled last year that convicted criminals do not have a constitutional right to demand that the state conduct DNA testing of evidence. But that case did not involve a death row inmate seeking to prove his innocence.

In the United States, post-conviction DNA testing has exonerated about 260 people, including 17 death row inmates, according the Innocence Project public policy group.

There are nearly 3,200 inmates on death row in 36 states.

(Editing by Doina Chiacu and Philip Barbara)

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