What Skinner's Delayed Execution Means, In Plain English

The thousands of Change.org members who signed our petition supporting DNA testing for Texas death row prisoner Hank Skinner should feel proud about how they'v helped put his case in the national spotlight. Now that the Supreme Court has stayed his execution -- in a last-minute move yesterday -- the national media is finally paying attention.

But don't let the latest developments (or the media coverage) fool you. Skinner's bid to secure DNA testing to prove his innocence is far from over. To understand why, it's vital to understand in plain English what the Supreme Court has -- and has not -- done.

In its order, the Court said that it's halting the execution while it considers whether to accept review of Skinner's appeal. In other words, the Court has not actually decided whether it will review the legal issue in Skinner's appeal. The stay simply stops Texas from executing Skinner while the Court makes up its mind. If the Court decides not to review Skinner's case, the execution goes forward automatically.

To put this situation in perspective, consider that the Court receives thousands of petitions like Skinner's (technically called petitions for a writ of certiorari) every year. Out of these, the Court can only choose to review a tiny percentage of these appeals. Getting the Supreme Court to accept review is thus extremely difficult -- and rare. Every year, dozens of prisoners are executed without the Court ever looking at their cases. Last year, for example, 52 prisoners died in the death chamber -- and 24 of these men were executed in  Skinner's home state of Texas.

But while the overall odds are low, there's still a very real chance that the Supreme Court will accept review of Skinner's case. Nobody knows exactly when the Court will decide on this critical preliminary question, but it's likely we'll know in the next couple of weeks.

To repeat: If the Court declines review, the execution goes forward automatically. On the other hand, if the Court accepts review, the stay of execution will remain in effect until the Court decides the actual legal issue in his case.

What is that legal issue? This is where the story gets potentially confusing to non-lawyers, because the technical legal question is actually NOT whether Skinner can get DNA testing. Instead, the issue is whether Skinner can even ask for DNA testing via a federal civil rights action (as opposed to a federal habeas corpus action).  So here's the kicker: even if the Court decides to accept Skinner's case, and even if the Court then rules in his favor -- two very big ifs -- even then, it's unclear that Skinner would get the DNA testing he seeks. Instead, he would simply be granted the right to ask a federal judge for the DNA test.

If all this sounds crazy, it definitely is. Even under the best of scenarios, the whole legal process could take years and still not provide the relevant DNA testing. It remains a real possibility that the Supreme Court could deny review and permit Skinner's execution immediately. That's why we need to keep up the pressure on Governor Perry. He has to power to cut right to the chase and order testing that could prove once and for all Skinner's innocence or guilt.

Don't fear the truth. Just do the darn test.

Photo Credit: Texas Tribune