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The U.S. Supreme Court ruled last year, that once an individual has been convicted there is only a very narrow opportunity to seek access to evidence for possible DNA testing. The ruling had limited impact since 48 states already have laws that provide access in some circumstances. Today, the Supreme Court hears the next round in the DNA drama: a case testing whether the Texas statute is so limited that it denies defendants due process of law. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: Hank Skinner was 45 minutes away from execution when the Supreme Court granted a stay to hear his case this year. As he put it in an interview with Texas Public Radio�a week earlier...

Mr. HANK SKINNER (Death row inmate): Well, what do you want me to say? What can I do? I'm dead. Well, I mean, hell yes, it's terrible. It's devastating, but, I mean, I'm doing everything I can.

TOTENBERG: Skinner was sentenced to die for murdering his girlfriend Twila Busby and her two adult, developmentally disabled children. The prosecution tested some, but not all of the evidence at the crime scene. And 16 years ago, Skinner's lawyer did not seek further DNA testing. At trial, his lawyer didn't dispute that Skinner was at the crime scene. But the argument was that Skinner was so drunk, he could not have committed three murders that required both strength and dexterity. The jury didn't buy it.

By 2001, Skinner had new lawyers. And when Texas passed a law providing for access to evidence for DNA testing, they tried to use the new law to prove someone else committed the crime. The lawyers wanted to be able to test evidence at the crime scene not tested before, evidence that they contended would prove Skinner was not the murderer and that the victim's uncle was.

The Texas courts and the lower federal courts refused the request to allow more DNA testing. They ruled that Skinner had made a strategic decision at trial not to ask for access to the evidence for more testing, and that he was not entitled to a second bite at the apple. The lower courts also said Skinner did not meet the criteria specified in the law, namely that he didn't show that DNA evidence could prove his innocence.

But Nina Morrison, a senior staff lawyer for the Innocence Project, says that even among the 259 men freed from prison as a result of DNA testing, Skinner's case is unusual.

Ms. NINA MORRISON (Senior Staff Lawyer, Innocence Project): In my experience, this case is pretty rare in that there is a very substantial amount of evidence that all comes from the crime scene, that all potentially comes from the killer, that's never been tested. Here, for example, he has argued that if he is able to get DNA from the two knives that were found at the scene, a bloody jacket that was found next to the body and the fingernails of one or more of the victims, this might all add up to the same profile of a single killer other than Skinner.

TOTENBERG: Gregory Coleman, representing the State of Texas, counters that separate and apart from the DNA evidence, there was massive evidence of Skinner's guilt. He maintains that no new amount of DNA could exonerate Skinner.

Professor GREGORY COLEMAN (Former Solicitor General, State of Texas): Every court that has looked at this has said that the mass of evidence, separate and apart from the DNA evidence - much of which he doesn't contest - shows that he is guilty, that this is not a case in which DNA evidence has any real possibility of showing that he's innocent.

TOTENBERG: Nina Morrison replies that in other cases, evidence that once looked persuasive has been wiped out with DNA testing.

Ms. MORRISON: I personally have had a number of clients that were identified by five or six eyewitnesses who were positive that was the guy, who gave full confessions, who had blood testing or fingerprints that appeared to be from them, all of whom turned out to be stone-cold innocent once we did a conclusive DNA test.

TOTENBERG: Greg Coleman, however, argues that Texas has crafted a reasonable law that seeks to provide justice while, at the same time, barring frivolous and burdensome claims.

Prof. COLEMAN: Texas, like most states now, provides a system for somebody in his shoes to come back and say: There is evidence out there that I'd like to be tested, and it would show that I'm innocent.

TOTENBERG: But Skinner's lawyers say that proof is the physical evidence at the crime scene that has never been subjected to DNA testing.

Nina Totenberg, NPR News, Washington.

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