Last night Hank Skinner was a dead man walking.  This morning, his life still hangs by a thread.  An hour before his execution, the Supreme Court of the United States issued a stay of execution so they can decide whether or not they will consider the case.

Skinner has maintained his innocence since the 1993 murder of his girlfriend, Twila Busby, and two of her adult sons. 

It could take several weeks for the court to turn its attention to the case.

State and federal appeals courts have repeatedly held that Skinner has no legal right to have DNA evidence from the crime scene tested because, seventeen years ago, his attorney at trial didn’t ask to have the evidence tested.  

Skinner wants every piece of evidence taken from the crime scene tested including semen and skin samples, two bloody knives and a man’s windbreaker.

It is difficult to guess how the Supreme Court will rule.  Last year, the court ruled 5 to 4 that defendants have no constitutional right to post-conviction DNA testing. 

This is the way the legal system works.  Once a jury has rendered a guilty verdict it becomes next to impossible for defense counsel to argue the evidence.  You can bring up procedural issues (ineffective assistance of counsel, Brady violations (prosecutors withholding potentially exculpatory evidence from defense counsel) and the like, but the law assumes that the evidence points to guilt.  As a practical matter, the law either assumes that jurors never misread the evidence or it doesn’t give a damn.  You can argue that the evidence presented at trial was insufficient to warrant a conviction, but the argument is generally futile.  The law assumes that jurors selected according to standard voir dire procedures are inherently reasonable.

If there were no pre-conviction procedural missteps, a defendant is pretty much screwed no matter how thin or contradictory the evidence may be.  It isn’t just that claims of innocence fall on deaf ears; according to the rules, you are no longer allowed to argue innocence. 

Which explains why Hank Skinner can’t get the DNA tested.  To the legal amateurs like me the state’s refusal to run the tests is straight out of Alice and Wonderland.   It makes no sense.  Why wouldn’t you want to give a death row defendant every chance to prove his innocence?

But the law isn’t driven by practicality or common sense, it’s driven by precedent. 

Like Troy Davis, Hank Skinner puts the Supreme Court justices in a bind.  Precedent suggests that Troy has no legal right to an evidentiary hearing and Hank has no legal right to a DNA test.  On the other hand, millions of people are following these cases and most of us are dumbfounded by the Alice in Wonderland message we are receiving. 

When the average person thinks the justice system has lost its collective mind, the legal eagles have credibility problem.  Normally, of course, the facts in criminal cases are relatively straightforward.  And even in cases where the evidence is paper-thin, it is rare that anybody is paying attention (least of all the media).  As a result, nobody cares.

This explains why Curtis Flowers has been to trial five times on the word of bribed witnesses or why Kelvin Kaigler and Jace Washington could be casually convicted on the uncorroborated testimony of inmate snitches in St. Tammany Parish. 

But on those rare occasions when the outside world decides to pay attention, the legal rules change dramatically.  Everyone in the know realizes that the everyday workings of the criminal justice system is arbitrary and capricious; but if nobody from the outside is watching nothing changes.  When you work inside the system you learn to adapt. 

People wonder how a Roman Catholic Bishop could resolve a case of child molestation by transferring the offending priest to another parish.  It’s simple.  That’s the way the game was played back in the day.  Life would have become unbearable for any priest who tried to change the rules.

People wonder why ordinary Germans continued to support the Third Reich after the rough outline of the Holocaust became common knowledge.  People are morally adaptable.  Prophets work out their morality with God; the rest of us take our cue from the surrounding culture.

It will be interesting (and for some, excruciating) to watch the Supreme Court of the United States wrestle with the Troy Davis and Hank Skinner cases.  If the majority opts for justice sensible precedents will be established.  If the high court says Troy can be executed without an evidentiary hearing or that Skinner can be dispatched without DNA testing there will be a massive outcry. 

Or will there?