Guest Post by Mark W. Bennett ( @MarkWBennett ): A Triumph of Civil Litigation

The Trial Warrior Blog is honored to have as its guest blawger, Houston criminal defense attorney Mark W. Bennett (Twitter: @MarkWBennett). He is the principal of the law firm Bennett & Bennett  and the author of the highly  popular blogs: Defending PeopleSocial Media Tyro and In Mark’s own words:

“I grew up overseas (in India, Thailand, and Germany) because my dad worked for the government. I graduated from the American Embassy School in New Delhi India, and returned to the U.S. to attend Rice University in Houston, Texas.

After graduating from Rice with a degree in Religious Studies, I attended the University of Houston Law Center. When I graduated from the University of Houston, I opened my practice as a solo criminal defense lawyer. I am proud to have never represented the government, fighting only for the rights of the accused.

In 1997 I became licensed to practice in Colorado.

While my practice is based in Houston, I represent clients all over the United States, and am available on a moment’s notice to handle federal cases anywhere in the country. I can practice in any federal district court in the country, either as a member of the court’s bar or pro hac vice (with the permission of the court).”

Mark is a 1999 graduate of the Trial Lawyers College in Dubois, Wyoming, a former vice president of the Harris County Criminal Lawyers’ Association and a member of  the Texas Criminal Defense Lawyers’ Association, the Collin County (Texas) Criminal Defense Lawyers’ Association, the Mexican-American Bar Association of Houston, the Colorado Criminal Defense Bar, and the National Association of Criminal Defense Lawyers.

Mark is also known as one of the “Four Horsemen” on Twitter. He remains vigilant in upholding the values and ideals of the legal profession by reminding lawyers that social media and professional ethics are not mutually exclusive.

A Triumph of Civil Litigation

As a criminal defense trial lawyer, I admit having had a bad attitude about both civil law and litigators. The civil courtroom is where people fight over money instead of important things like life and liberty; litigators are what people who wish they try cases call themselves. Civil litigators, therefore, are people who don’t have the gumption to either fight over things that really matter or try cases. Events this week have proven that this was a troglodytic view of civil litigation.

On Wednesday afternoon it looked like curtains for Hank Skinner. He had been sentenced to die and his lawyers had exhausted—or dropped the ball on—every direct and collateral attack available under the criminal law. They had appealed to the Texas Court of Criminal Appeals and then the U.S. Supreme Court; they had filed an untimely state writ of habeas corpus with the Texas Court of Criminal Appeals; they had filed a federal writ of habeas corpus and appealed it to the U.S. Supreme Court; they had filed another state writ of habeas corpus with the Texas Court of Criminal Appeals, dismissed as a subsequent writ.

Meanwhile, they had sought DNA testing of the hitherto-untested biological material under Chapter 64 of the Texas Code of Criminal Procedure. The State of Texas had resisted testing, and state courts had refused to order it. (Here’s a lengthy and admittedly dry overview I wrote of the procedure in Skinner’s case.)

They had also filed a long-shot civil-rights lawsuit under Section 1983 of Title 42 of the United States Code. The theory (here is the complaint) was that the State had violated Skinner’s civil rights—to due process and against cruel and unusual punishment—“by refusing to release the biological evidence for testing, and thereby preventing Plaintiff from gaining access to exculpatory evidence that could demonstrate he is not guilty of capital murder.”

Civil-rights litigation is the area of civil law most closely related to the criminal law. The plaintiffs in Section 1983 suits often start out as the involuntary participants in criminal cases.

In his civil suit Skinner sought injunctive relief:

A declaratory judgment that Plaintiff is entitled to access to the following evidence for DNA testing at Plaintiffs expense: 

a. vaginal swabs taken from Twila Busby at the time of her autopsy;
b. Twila Busby’s fingernail clippings;
c. the knife found on the front porch of the house where the murders occurred;
d. the knife found in a plastic bag in the living room of said house;
e. the dish towel also found in said plastic bag;
f. the windbreaker jacket found on the living room floor; and
g. any hairs found in Twila Busby’s hands. and

A preliminary and permanent injunction requiring Defendant to produce all the foregoing evidence to Plaintiff, pursuant to an appropriate protocol regarding chain of custody and preservation and return of the evidence. The idea is that there is untested biological material that might show that someone else committed the murders for which Skinner was condemned, that the State violates Skinner’s constitutional rights by blocking the testing of this material, and that the federal courts can cure the violation by ordering the State to allow Skinner to test the material.

Even if the Supreme Court grants certiorari and hears Mr. Skinner’s appeal, it might not grant relief on the merits; even if the Supreme Court grants relief on the merits, allowing the suit to proceed, he might not win the suit; even if he wins the suit, the results of the DNA tests might not be exculpatory; and even if the results of the DNA tests are exculpatory it is not clear that the law will offer Skinner any relief from his sentence or conviction.

In other words, Hank Skinner has a long road ahead of him. But he’s alive. And that’s thanks to his postconviction lawyers’ (Rob Owen of Austin, Texas and Douglas G. Robinson and Maria Cruz Melendez of New York) application of civil litigation to a the defense of life and liberty.

For criminal trial lawyers, this case should serve as a reminder of the Law of Requisite Variety: the more ways we have of defending a case, the greater the variety of cases we we can successfully defend. For civil litigators, this case should serve as an inspiration: take all that you know about fighting over money, and go find a way to use it to make someone more free.

2 Responses to “Guest Post by Mark W. Bennett ( @MarkWBennett ): A Triumph of Civil Litigation”

  1. Jenna McWilliams Says:

    who are the other three horsemen?

  2. Antonin Pribetic Says:

    Here's a clue:Four HorsemenA free Snuggie if you guess the other Three Horsemen of the Blawgosphere…

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