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  1. aupuni says:
    March 9, 2011 at 10:35 am

    Lyle Denniston Reporter

    Posted Monday, March 7th, 2011 11:34 am

    A limited DNA access plea allowed

    The Court rules that an individual seeking testing of DNA gathered at a crime scene may pursue that claim in a federal civil rights lawsuit, instead of under federal habeas law, which has more restrictions.
    Case Pages

    * Skinner v. Switzer

    After seeming to close the door in 2009 to constitutional claims by convicted individuals that they were wrongly denied access to DNA evidence gathered at a crime scene, the Supreme Court opened the door — but perhaps only slightly — on Monday. The Court ruled that the federal courts may hear, under civil rights law, a claim by a state prison inmate that his state’s procedures for testing of biological evidence are flawed. Although the Court majority stressed that it was not raising inmates’ hopes very high, the ruling potentially could have an impact in 48 states that do allow for some testing of DNA — evidence that sometimes provides a powerful demonstration of innocence, or of guilt. (The federal government also allows access to DNA evidence for testing.)

    The Court’s new 6-3 decision in Skinner v. Switzer (09-9000) answered a question the Court had agreed to decide, but left open, two terms ago in District Attorney’s Office v. Osborne (08-6), decided June 18, 2009.

    In Osborne, the Court by a 5-4 majority ruled that prisoners do not have a constitutional right of access to DNA evidence. That decision, however, rejected a claim only of a “substantive due process” violation in denial of access to such material. On Monday, the Court majority in Skinner found a limited right of “procedural due process,” which the majority opinion characterized as leaving inmates “slim room” to pursue such a challenge. It left it to lower courts to decide whether a Texas death-row inmate, Henry W. Skinner, will actually win his claim that Texas’ DNA evidence law was used wrongly to deny him a chance to test biological material — not previously tested by the state. Police had gathered that evidence in 1993 at a house in Pampa, Texas, where a woman and her two adult sons were murdered. The woman was Skinner’s girlfriend; he shared the house with her and her sons.

    While the state in prosecuting Skinner for the three murders had made use of some of the DNA evidence found at the scene, Skinner’s lawyers have been trying for ten years to get access to the untested evidence — including vaginal swabs and finger nail clippings from the murdered woman, blood and hairs found on a jacket near the woman’s body, and biological evidence found on knives and a dish towel discovered at the scene. At the trial, his defense lawyer did not ask that these be tested; Skinner would later make his challenge in post-conviction pleas. Those items are still available for testing and are in a condition that they can be tested, according to prosecutors. (Before agreeing last May to hear Skinner’s appeal on the evidence-access issue, the Court in March postponed his scheduled execution for the crimes.)

    The only issue the Court settled on Monday was whether Skinner could pursue his claim in a civil rights lawsuit under Section 1983, rather than in a federal habeas challenge, to which more procedural limitations apply. That was the issue left unresolved by Osborne. The six-Justice majority in Skinner was made up of Justices Ruth Bader Ginsburg (who wrote the majority opinion) and Justice Stephen G. Breyer, both of whom had dissented in Osborne; Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia, both of whom also were in the majority in Osborne; and the two newest Justices, Sonia Sotomayor and Elena Kagan, who were not on the Court at the time of Osborne; they replaced now-retired members of the Court who were in dissent in Osborne, Justices John Paul Stevens and David H. Souter.

    Dissenting on Monday were Justices Clarence Thomas (who wrote the dissenting opinion) and Justices Samuel A. Alito, Jr., and Anthony M. Kennedy, all of whom had been in the majority in Osborne. The dissenters protested that the ruling “provides a roadmap” for state inmates to reopen DNA access claims in civil rights cases after losing on those in state habeas proceedings.

    Justice Ginsburg went to considerable lengths to claim that the decision was narrow — an effort that perhaps was necessary to hold the votes of the Chief Justice and Justice Scalia. She and the Court’s other more liberal members needed to pick up the votes of either Roberts or Scalia to prevail, and both joined the opinion without qualification.

    Ginsburg noted that the Osborne decision had barred an inmate seeking access to DNA evidence any right to that under substantive due process principles, and “left slim room for the prisoner to show that the governing state law denies him procedural due process.” In seeking to make the point — in answer to the dissenters — that the new ruling would not lead to a flood of such civil rights challenges in DNA cases, Ginsburg said that in the areas where federal appeals courts had previously allowed claims like Skinner’s, there had been no evidence of “any litigation flood or even rainfall.” In addition, the opinion noted that the federal Prison Litigation Reform Act of 1995 “placed a series of controls on prisoner suits,” so as to limit inmate litigation in federal courts.

    The key to Monday’s ruling was the majority’s conclusion that a civil rights claim of a flawed state DNA procedure is not an attempt to undo a criminal conviction or sentence, and thus does not have to be pursued solely under federal habeas law. If the inmate wins access to the DNA that is in a case file, Ginsburg noted, the tests may work in favor of the inmate’s claim of innocence, work in favor of the guilty verdict, or may produce only an inconclusive result.

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  2. aupuni says:
    March 9, 2011 at 10:36 am

    Lyle Denniston Reporter

    Posted Monday, March 7th, 2011 4:20 pm

    New claim to detention power

    President Obama, without asking Congress for any new power to hold terrorism suspects, makes a formal new claim that the military may hold prisoners at Guantanamo Bay indefinitely even if no criminal charges are filed against them.

    Without asking Congress for any added power, President Obama on Monday claimed authority for the military to hold as prisoners any terrorism suspect whose detention is deemed “necessary to protect against a significant threat to the security of the United States,” even without pursuing criminal charges. That will include detention at Guantanamo Bay, and at any other “detention facility” the government sets up. The detention power, however, may be checked by the civilian courts as they decide habeas challenges to continued detention by those at Guantanamo Bay, the President conceded.

    The White House outlined the new approach in a statement by the President, a presidential executive order, and a fact sheet on Guantanamo and detainee policy. Attorney General Eric Holder, Jr., also issued a statement. These developments occurred as the Supreme Court is on the verge of considering a series of pending appeals in which Guantanamo detainees are challenging the government’s existing policy on holding them indefinitely.

    The President relied upon his constitutional powers as Chief Executive, and on the 9/11 Resolution that Congress passed after the 2001 terrorist attacks. While asserting that the new approach “does not create any additional or separate source of detention authority,” the steps he announced for review of those the government insists on holding amount to an ongoing, indefinite detention policy without necessarily bringing criminal charges against any individual, either in civil court or before a military commission. The President ordered the Pentagon to resume prosecutions in military commissions at Guantanamo.

    Obama said explicitly that he still wants to close the detention facility at Guantanamo, but he cannot now do so because Congress has taken action to bar transfers out of Guantanamo, especially to the U.S. mainland, for detention or even for prosecution for war crimes. He accused “some in Congress” of attempting “to undermine” the administration’s authority to bring criminal charges in regular federal courts, and vowed to continue to resist such restrictions as “dangerous and unprecedented” challenges to his authority as Chief Executive.

    A central feature of the new policy, the White House indicated, is a “periodic review” system for those whom the government decides cannot be released and cannot be prosecuted for war crimes. While this process will not allow any detainee to challenge the legality of the initial decision to hold them in captivity, it does give each detainee not specifically facing a prosecution a review of detention — the initial review would be one year from now, with later reviews occurring every three years, with some shorter form of review every six months during that three-year span.

    The new Executive Order Obama issued to implement the new review scheme has two potential limitations. First, the Order acknowledged that each of the 173 detainees now at Guantanamo has “the constitutional privilege of the writ of habeas corpus, and nothing in this order is intended to affect the jurisdiction of the federal courts to determine the legality of their detention.” (The Obama Administration, however, has another detention facility at Bagram air base outside of Kabul, Afghanistan, and it is resisting in court any effort to extend habeas rights beyond Guantanamo.)

    A second potential check is a provision that read this way: “If, at any time during the periodic review process established in this order, material information calls into question the legality of detention, the matter will be referred immediately to the Secretary of Defense and the Attorney General for appropriate action.” There was no further explanation.

    While the President stressed that the new review process gives detainees more procedural rights than they formerly had, under a Pentagon review system that the Supreme Court in 2008 found to be an inadequate substitute for habeas challenges, the new system almost certainly will be challenged in civilian federal court as an unconstitutional mode of indefinite detention. While there is the theoretical possibility that a civilian court might grant a habeas release order for any detainee at Guantanamo, a series of rulings by the D.C. Circuit Court have sharply curtailed the power of federal District Court judges to order actual release and have enhanced the strength of the government’s reasons for holding terrorism suspects. Thus, lawyers for detainees facing prolonged detention without prosecution predictably will claim that the Constitution does not allow such Executive detention.

    The Supreme Court, in its first ruling in 2004 on an issue arising out of the post-9/11 “war on terrorism,” upheld presidential power to order some detentions of those captured on an overseas battlefield. It said there, however, that detention authority would become questionable if it was unduly prolonged. Many of the detainees now at Guantanamo are in their eighth or ninth year of captivity.

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