On Point: 6. 974.07, DNA testing

On Point is very pleased to present this guest post discussion of Skinner v. Switzer by Brandon L. Garrett, Professor of Law, University of Virginia. Professor Garrett’s most recent book, “Convicting the Innocent,” was reviewed by in the New York Times Sunday Book Review 5/26/11.

The U.S. Supreme Court settled another boundary dispute about what lies inside and what lies outside of habeas corpus today in Skinner v.

Henry W. Skinner v. Switzer, USSC No. 09-9000, 3/7/11

A convicted state prisoner may utilize 42 U.S.C. § 1983 to seek DNA testing of crime-scene evidence.

When may a state prisoner, complaining of unconstitutional state action, pursue a civil rights claim under §1983, and when is habeas corpus the prisoner’s sole remedy? …

We summarized the relevant case law most recently in Wilkinson v.

7th circuit decision

Habeas – Filing Deadline – DNA Motion as Tolling

Price’s postconviction motion for DNA testing in Illinois state court didn’t toll the 28 U.S.C. § 2254 federal habeas deadline, and his habeas petition is therefore deemed untimely.

The court’s analysis relates to Illinois procedure. As will be seen, Wisconsin’s is meaningfully different and should yield a different conclusion. First, the obvious: subject to highly exceptional circumstances,

Question Presented:

May a convicted prisoner seeking access to biological evidence for DNA testing assert that claim in a claim in a civil rights action under 42 U.S.C. § 1983, or is such a claim cognizable only in a petition for writ of habeas corpus?

Docket: 09-9000

• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Scotusblog analysis notes,

State v. James M. Moran, 2005 WI 115, reversing unpublished decision
For Moran: Colleen D. Ball, State Bar Pro Bono Project

Issue/Holding:

¶3 We conclude that the plain language of § 974.07(6) gives a movant the right to conduct DNA testing of physical evidence that is in the actual or constructive possession of a government agency and that contains biological material or on which there is biological material,

State v. Kenneth A. Hudson, 2004 WI App 99
For Hudson: David D. Cook
Issue/Holding:

¶11. Hudson first argues that under Wis. Stat. § 974.07(6)(a), the State must “make available” physical evidence containing biological material for independent DNA testing. Subsection (6)(a) states:

Upon demand the district attorney shall disclose to the movant or his or her attorney whether biological material has been tested and shall make available to the movant or his or her attorney the following material:1.  

State v. Kenneth A. Hudson, 2004 WI App 99
For Hudson: David D. Cook
Issue/Holding:

¶13. Hudson also argues he is entitled to court-ordered DNA testing under Wis. Stat. § 974.07(7)(a). Subsection (7)(a) requires the trial court to order DNA testing when the following four conditions are met:

A court in which a motion under sub. (2) is filed shall order forensic deoxyribonucleic acid testing if all of the following apply:   1.