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Death row inmate's DNA appeal gets Supreme Court focus

WASHINGTON — A man's life may have been on the line at the Supreme Court on Wednesday, but it was hard to tell that by listening to the argument.

The court is considering the case of Texas death row inmate Hank Skinner, who was an hour away from a lethal injection when the justices stepped into the case.

Skinner says he did not kill his girlfriend and her two sons 17 years ago. Skinner says considerable evidence that was not tested at the time of his trial, on the advice of his lawyer, could help exonerate him.

If the court rules against him, Skinner probably will be put to death without the material ever being tested despite a Texas state law intended to allow defendants to do DNA testing on evidence that was not performed before their convictions.

But neither Skinner's guilt nor the DNA evidence itself is the central issue in the legal case before the Supreme Court.

Instead, the court is deciding whether Skinner can use a federal civil rights law to try to persuade a federal judge to order the prosecutor to turn over two knives, fingernail clippings from Skinner's girlfriend and other evidence found at the crime scene that has never been tested. Should Skinner and his new defense team prevail on all those steps, they would then have DNA tests done on the material.

So the justices engaged in a highly technical argument without referring to the murders or the evidence and made only a couple of mentions of why the case matters.

"What he wants is the DNA," Justice Stephen Breyer said. "He thinks it's going to be exculpatory. He doesn't know that till he gets it."

Prosecutors argue that Skinner is trying to game the system. They say he's asking for the testing now as a last-ditch attempt to postpone execution after passing up testing on the other evidence at trial because his lawyer feared it would further incriminate him.

The Supreme Court's decision is expected by spring. The case is Skinner vs. Switzer.

Oral vs. written complaints

If an employee tells a supervisor of a potentially illegal act, can that be considered filing a complaint? The Supreme Court grappled with that question Wednesday as it tried to determine whether Kevin Kasten should get retaliation protection after he was fired from a Saint-Gobain Performance Plastics facility in Portage, Wis.

Kasten had complained to Saint-Gobain that the time clocks were placed in a location where employees would lose overtime. The company moved the clocks the same day he was fired, and it settled with other employees for nearly $1.5 million.

Kasten sued, saying he was fired because he spoke up. He claimed retaliation protection under the Fair Labor Standards Act, but the company said, and the 7th U.S. Circuit Court of Appeals agreed, that to get protection workers who have "filed any complaint" about workplace conditions must have written it down.

Kasten's lawyer, James Kaster, said not allowing complaints to be made orally will disproportionately affect those working manual or low-wage jobs, or those who are illiterate or don't speak English.

Business groups say requiring the complaining employee to write down the complaint would help them differentiate between gripes and official grievances. " 'File' always has in mind 'written,' " said Carter G. Phillips, Saint-Gobain's lawyer.

The case is Kasten vs. Saint-Gobain Performance Plastics.

Associated Press

Death row inmate's DNA appeal gets Supreme Court focus 10/13/10 [Last modified: Wednesday, October 13, 2010 9:30pm]
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