Texas Death Row's Hank Skinner and the US Supreme Court - What About Post Conviction DNA Testing Under 42 USC 1983?

On Monday, the U.S. Supreme Court granted the Petition for Writ of Certiorari filed by Texas Death Row Inmate Hank Skinner.  It's a case to watch, because it means that the High Court will hear Skinner's argument he has a right to pursue a civil claim, not a criminal one, regarding his continuing assertion that he is innocent of the crime for which he has been sentenced to death.

Savvy Appellate Counsel file Civil Rights Claim

What Hank Skinner's savvy defense attorneys have done is file a civil rights claim which argues that his constitutional rights have been violated because the State of Texas didn't allow him to test evidence that was not tested at trial.   He's not arguing this as part of his criminal case (writ of habeas corpus); he's arguing it as a civil matter. 

The Fifth Circuit Court of Appeals already denied him, standing on past precedent and opining that any violations of his constitutional rights to (1) due process and (2) protection against cruel and unusual punishment based upon "the defendant district attorney’s refusal to allow him access to biological evidence" for purposes of forensic DNA testing need to be addressed in a petition for habeas corpus, not a petition for writ of certioriari. 

What Hank Skinner wants is to test evidence for the absence of his DNA long after the jury trial is over

Skinner wants to test things that were left outside the courtroom during the jury trial that found him guilty and sentenced him to die.  Professing his innocence of the crime, Hank Skinner wants the chance to take things in possession of the State of Texas, send them to a laboratory, and have the lab results show his DNA isn't on the stuff and therefore, he wasn't the killer.   (If you want to read the background facts of the case, read them in Skinner's own words in a Q and A he answers at the Texas Death Penalty Blog.)

What About the Evidence?

It's obvious from his arguments that not all the evidence found at the scene of the crime was tested for Hank Skinner's DNA.  And, of course it's true that DNA testing has exonerated many who have been wrongfully accused in this country (often, thanks to the efforts of The Innocence Project). 

Interestingly, the same day that the Supreme Court granted writ on the Skinner case, a Wisconsin County Judge freed William Avery, 38, after DNA evidence showed that Mr. Avery did not kill a Milwaukee prostitute 12 years ago.  He had served 5 years of a 40 year sentence. 

It's also true that failure to properly test the state's evidence has led to the execution of innocent men.  Texas executed Cameron Todd Willingham in 2004; today, there are few that doubt that Mr. Willingham was innocent of the arson deaths of his children, and that faulty testing of the evidence (and failure of the system) was to blame.

What Happened at the Trial?

However, what I'm wondering is what happened during the criminal trial?  Was this a defense attorney strategy back then -- to not dig too deep in the State's evidence bag, for fear that it would only reveal more evidence that could be used against the defendant? 

Why didn't the defense counsel at the trial do this testing?  Was it error? Or was it a conscious decision made in what was considered the best interests of their client at the time?

And, here's why I'm asking - gamesmanship and the jury trial. 

1.  In future cases, what if criminal defense attorneys make strategic decisions NOT to go into all the things that came from the criminal investigation.  Is the Skinner case going to mean that years down the road, a whole new series of appeals will begin, based upon a constitutional need to go back and check that stuff then?  Assuming so, then how can we protect against gamesmanship while allowing for legitimate claims?

2.  What does this do to the respect of the jury that is inherent in our system?  Already, we have seen mediation and other forms of ADR (Alternative Dispute Resolution) cast aside the constitutionally recognized sanctity of a trial by a jury of our peers in civil actions.  What impact will Skinner have upon the criminal jury system over the years, if the U.S. Supreme Court agrees with Mr. Skinner's arguments?

Everybody Draw Mohammad Day is Today - Here's Why You Should Support It

Seattle Cartoonist Molly Norris
 has declared May 20th as National
Everybody Draw Muhammad Day! 

Comedy Central cut a portion of South Park that was to show Mohammed in a bear costume, after cartoonists Trey Parker and Matt Stone received death threats from a radical Muslim group.  Seems that Comedy Central censored everything related to Mohammed in this recent South Park episode, in response to these threats. 

In response, cartoonist Molly Norris declared May 20, 2010, as "Everybody Draw Mohammed Day," asking that people upload their own depictions of Mohammed onto her Facebook page (see the poster, there at the right).  

And now, liberal and conservative alike (think about that for a moment, because this might be a very big deal) are joining together in support of the raison d'etre behind Everybody Draw Mohammed Day!

The liberal Huffington Post gives us an excellent discussion of why we should all do this in Sam Harris' piece, "Losing Our Spines to Save Our Lives."

Big Hollywood (known as "the conservative voice of Hollywood") not only supports Harris' position ("Our capitulations in the face of these threats have had what is often called “a chilling effect” on our exercise of free speech.") but also points us to Mark Goldblatt's article in the libertarian Reason magazine, "The Poet versus the Prophet,"

At what is hoped to be exemplary fair use, I join with Brad Thor of Big Hollywood to share the excellent work of Sam Harris, who writes:

The controversy over Fitna, like all such controversies, renders one fact about our world especially salient: Muslims appear to be far more concerned about perceived slights to their religion than about the atrocities committed daily in its name. Our accommodation of this psychopathic skewing of priorities has, more and more, taken the form of craven and blinkered acquiescence.


There is an uncanny irony here that many have noticed. The position of the Muslim community in the face of all provocations seems to be: Islam is a religion of peace, and if you say that it isn’t, we will kill you. Of course, the truth is often more nuanced, but this is about as nuanced as it ever gets: Islam is a religion of peace, and if you say that it isn’t, we peaceful Muslims cannot be held responsible for what our less peaceful brothers and sisters do. When they burn your embassies or kidnap and slaughter your journalists, know that we will hold you primarily responsible and will spend the bulk of our energies criticizing you for “racism” and “Islamophobia.”


Our capitulations in the face of these threats have had what is often called “a chilling effect” on our exercise of free speech.

Of course, Molly Norris's efforts did not squeak by unnoticed.  She's been the subject of death threats.  There's been a movement to boycott Facebook by those unhappy with her efforts.  Parts of Pakistan are blocking the Facebook site.

Nevertheless, according to FoxNews' headcount yesterday, over 41,000 Facebook users associated with the event page and a second, similar page was "liked" by over 4400.  Interestingly, 58,000 users had joined a Facebook page in opposition to Everybody Draw Mohammed Day. 

Mind you, Comedy Central is the same channel that is purportedly preparing to bring us an entire half-hour cartoon that according to the Hollywood Reporter will depict Jesus Christ as wanting to "escape the shadow of his "powerful but apathetic father" and live a regular life in New York City." 

As a devout Christian, am I happy about this?  No.  Will I watch this show?  Nope.  "Forgive them Father for they know not what they do," applies pretty well here.   Here's the difference: no way am I going to be threatening cartoonists with harm here.  I'll pray for them, and I'll pray that the show fails.  I'll let Comedy Central know they've lost a viewer if it ever airs.  It offends me and it's blasphemous.  It's wrong for them to do. 

I'm not pleased that Jesus is being disrespected and dishonored as well as God Himself, but I trust that God knows what to do about this.  God will handle it.  God doesn't want me killing cartoonists in His Name. 

Regarding free speech, as an American, I'm reminded of Voltaire's famous words, "I disapprove of what you say, but I will defend to the death your right to say it."  

I also agree with the liberals,conservatives, and liberatarians whose writings have been referenced here, and join with them: it's time Americans stop accommodating against offense at the cost of Free Speech.

I Think It's Great that Michael Douglas Refused to Sign the Cannes Petition for Roman Polanski.

People seem to forget that Roman Polanski pled guilty to raping a 13-year-old girl, and not many have read the girl's testimony in that criminal case, which is graphic and disturbing and of course, online at The Smoking Gun.

By running off to France and avoiding jail time, Mr. Polanski is now deemed by many to be worthy of reprieve.  It's his age.  He's an artist.  He's done so much to contribute over all these years of self-imposed exile.  In France. 

As someone who represented abused and neglected children for three years in the local Children's Court, all this stuck in my craw.  Sexual abuse of young girls is not to be tolerated, and by the way - did anyone read what happened here?  Really?

So, when I learned that Michael Douglas - a member of Hollywood Royalty - declined to sign a petition on behalf of Roman Polanski, with the publicized remark that it would be "unfair" for him to do so for "someone who did break the law," I was impressed.

After all, Mr. Douglas was in Cannes to promote his film, the sequel to Wall Street, entitled "Wall Street: Money Never Sleeps," and avoiding controversy might have helped his efforts there. 

It took courage of conviction for someone - even someone of Michael Douglas' stature in the entertainment industry - to do this.  So many in Hollywood appear to be on Team Roman.

Already a fan of Michael Douglas - I'm now going to make sure and see "Money Never Sleeps" and every subsequent film in which Michael Douglas appears. Good for him.


Status of the Polanski Case

Roman Polanski sits in house arrest in Geneva, Switzerland right now.  He's fighting to stay out of a California jail.  I'm confident his efforts will not be successful.

Recently, a British actress named Charlotte Lewis has come forward with allegations that Mr. Polanski sexually assaulted her at the age of 16.  She's represented by Gloria Allred, and she's gonna need it. 

Around Half a Million U.S. Charities Losing Tax Exempt Status

Today has gotta be a very, very bad Monday for lotsa folks that work for non-profits around the country. 

That's because last Friday, May 15, 2010, around a half-million charities in this country lost their non-profit status.  Well, maybe it's a bad Monday if they're aware of what has just happened to them.

According to the story in last month's New York Times, "One-Fourth of Nonprofits Are to Lose Tax Breaks," by Stephanie Strom, many of these charities may not be aware of their lost tax exemption.  Most of these do-gooders operated at $25K in revenue or less, and may or may not have been filing tax forms (because they may not have been required to do so in past years). 

USA Today points to organizations like kid's baseball teams and soup kitchens being hit by this. 

Fortunately, there's some help here:  The National Center for Charitable Statistics has posted an online list, state by state, of nonprofits that may be hit by this deadline.  And, they've also got the info on what these organizations need to do in order to prevent their donations from being taxed. 

Taxing a soup kitchen?  Really????

Toyota Class Action Lawsuit (MDL) - Plaintiffs' Lead Counsel Decided This Week by Judge Selna

Today, May 13, 2010, a hearing began to decide which attorneys are going to be running the show for the plaintiffs in the big, big class action lawsuit that is gearing up against Toyota Motor Corporation. The court's ruling is expected on or before this Monday, May 17th.

In early April, the U.S. Judicial Panel on Multidistrict Litigation (MDL) already decided that U.S. District James Selna of the Central District of California would be presiding over the consolidated Toyota lawsuits, which some expect will exceed $7 billion (with a b) in damages.

Late last month, Dan Becnel Jr. of the Becnel Law Firm in Reserve, Louisiana, became the first lawyer to formally apply for the job of Top Lawyer. Actually, Becnel has asked the court to approve him as co-lead, or at least a member of the lead counsel committee.

Here in Texas, we would say that Becnel is definitely not a man with a hat and no cattle:  he's got the resume to back up that request.

However, so do the other 99 or so trial lawyers who are tossing their hats in the ring.  Pros like Mark Lanier of Vioxx fame.  Apparently, over 100 attorneys have filed formal applications with the federal court for this job -- with one application exceeding 100 pages in length.

Oh, to be a fly on the wall of that California courtroom today ....