Reason Writers Around Town: Radley Balko on Obama, the Supreme Court, and DNA Testing for The Daily Beast

March 7, 2009

Over at The Daily Beast, Reason senior editor Radley Balko tries to figure out why in an important Supreme Court case last week, the Obama administration argued against granting post-conviction defendants the right to test the DNA evidence that could prove their innocence.

Comments

|3.7.09 @ 3:33PM|#

From an earlier thread on this difficult (to me anyway) case.

I can see the truth in each sides argument. Nobody here wishes to imprison or execute the innocent, but criminal cases do have to come to an end. He was convicted in a legal and allegedly fair trial. He has exhausted all appeals remedies. Nobody is arguing otherwise.

Still, I'd probably vote with Osborne but I'd need some crackerjack law clerks to write up make up my justification. Of course if I were a SCOTUS judge, I'd have a staff full of those.

Y'all do see the dilemma facing a SCOTUS justice here, right?

To that I'll just add that inconsistencies between Obama the candidate and Obama the president are not unheard of.

Mad Max|3.7.09 @ 3:47PM|#

'The Department of Justice's action was "pretty disappointing," says David C. Fathi of the civil rights organization Human Rights Watch. "It isn't consistent with Obama's history of fighting for more access to DNA testing."

'. . . Obama co-sponsored a bill in the Illinois legislature that ensured access to potentially exonerating DNA evidence. When he ran for president, his website touted a 1999 article in which Obama called for more widespread access to DNA testing.

'. . . 'Yet if being able to prove one's innocence is as important as Obama has said it is, why shouldn't the citizens of Alaska (or any of the other five states with similar laws) be guaranteed the same access to testing as the citizens of Illinois?'

I observe that the citizens of Illinois have the right to DNA testing due to a statute passed by the Illinois legislature. Good for Illinois, and good for then-Assemblyman Obama for co-sponsoring that bill. It seems that Alaska, like five other states, doesn't have a statute like this. This in itself would seem to be a major difference.

Certainly, a politician should not be reproached for inconsistency simply because he supports a policy at the state level, but doesn't want the federal courts to force that same policy on the states based on Constitutional interpretation. This doesn't mean Obama's constitutional interpretation in the Osborne case is the right one, simply that crying 'inconsistency'! is a cheap shot.

'. . . Obama is no federalist. Nor has he, in the past, subscribed to the sort of "originalist" arguments that say we can't read rights into the constitution that weren't there in the beginning. Yet that is the gist of the federal government's brief in Osborne, which says "There is no tradition in this country of granting convicted criminals post-conviction access to the prosecution's evidence locker…. And constitutional rights do not spring into existence simply because science has advanced."'

Does this mean that a politician who violates federalism in many areas is bound, for the sake of consistency, to violate federalism in *all* areas? This would be a dangerous kind of reasoning. Better to discuss the merits of the case itself.

As to the merits, there's arguments on both sides. The issue is as to what 'due process' means. The basic principle is that (at least in the procedural context) there's a right to an adversary hearing before a tribunal which isn't being a judge in its own cause. The U.S. Supreme Court has interpreted this, in the post-trial context, as including, in certain extraordinary situations involving fairly overwhelming new evidence of innocence, the right to reopen a case. Since this decision isn't clearly wrong, I'd go with it rather than asking the Court to overrule itself (plainly wrong decisions are too numerous to list, but include Roe v. Wade, Wickard, Raich, etc.)

'The state concedes that more modern DNA testing would establish conclusively whether Osborne is guilty or innocent, and Osborne's attorneys at the Innocence Project offered to pay for the $1,000 test.'

If this is a correct summary of the situation, then it would provide the basis for a narrow holding by the U.S. Supreme Court to allow DNA testing in this particular instances, without requiring it in all cases. The state agrees that, if it's not the defendant's DNA, then the defendant is innocent, and that the testing proposed by the defendant would show whether it's the defendant's DNA. The defendant is not asking the taxpayers to pay for the testing. And it is also my understanding that this kind of testing wasn't available at the time of the original trial, making it potentially *newly discovered* evidence which the defendant could not have procured through reasonable diligence at the time of the original trial.

The only thing the defendant needs is access to the evidence, not a subsidy. If the defendant is really innocent, then the test should prove it. The U.S. Supreme Court would be justified in saying that the Constitution requires DNA testing in these specific circumstances.

As to writing a broader rule and requiring DNA testing in all cases where the defendant has already been convicted, I'm not sure that's a good idea. That would tend to take the Court out of the realm of constitutional interpretation into the realm of legislation. Due process generally refers to the trial procedure at the original trial.

Back in the late eighteenth century (when the due-process clause of the Fifth Amendment, predecessor to the 14th Amendment's Due Process clause), the opportunities for post-trial proceedings based on new evidence, in the criminal context were more limited than today, though they did exist. If you were convicted of a misdemeanor, the sentence would soon be over, and even if the misdemeanor involved something sexual, you wouldn't be on an offenders' registry for the rest of your life. If you got convicted of a felony, the technical punishment was death, although certain first-time felons could avoid that through invoking 'benefit of clergy,' which meant you get branded on the thumb and released. After you're executed or branded, what would be the point of post-trial proceedings? Could the court un-execute you or un-brand you?

I understand that there were new-trial motions available for both criminal and civil cases under the common law, but how many of these motions were based on new evidence rather than some legal error at the initial trial? I guess I'd have to look that up, wouldn't I.

Yes, I'm an original understanding (not original intention) kind of guy.

Mad Max|3.7.09 @ 3:50PM|#

Also, under the common law, the executive would often commute death sentences to something less, like transportation, and if the defendant is innocent, he might have an interest in getting his conviction set aside so that his (lesser) punishment could be set aside. Imagine being banished to colonial Georgia for a crime you didn't commit!

Mad Max|3.7.09 @ 3:51PM|#

(Not because Georgia is a Southern state, but because colonial Georgia started out as a colony run by philanthropists, of the kind whose social musings had a hard time being translated into reality - not the kind of government you might want to live under)

Mad Max|3.7.09 @ 4:12PM|#

Oops, I see that the case I alluded to, Herrera v. Collins, didn't say there was a Constitutional right to a new trial based on overwhelming new evidence of actual innocence. The court said that, assuming there was such a right, the supposed right didn't apply in the prisoner's case.

And here is Scalia's concurrence in Herrera, for what it's worth.

SIV|3.7.09 @ 6:29PM|#

Mad Max,


This goal went unfulfilled as Georgia was ultimately not settled by debtors or convicts.

Wow, the wiki on Georgia history is atrociously bad,I really hope I don't know who wrote it,but the above statement from there is entirely correct. Georgia was not a penal colony,nor was it settled by debtors.No one was forcibly transfered to the colony.GA did have to "transfer out" some Moravians for being pacifist communists.

Mad Max|3.7.09 @ 7:08PM|#

SIV,

Well, that was the *plan.* I know it collapsed fairly soon.

SIV|3.7.09 @ 7:21PM|#

"fairly soon" being well before the colony was ever established.

|3.7.09 @ 7:28PM|#

Constitutional rights and SCOTUS be damned. New evidence has appeared which has the potential to clear an innocent man, or provide confirmation of guilt. How in good conscience can someone oppose that? I've just scanned this so there may be extenuating circumstances but I can't imagine what they would be.

Isn't a criminal trial supposed to be a procedure to discover the truth of the matter? Or is it a game where the object is to get the most points?

</|3.7.09 @ 7:46PM|#

Isn't a criminal trial supposed to be a procedure to discover the truth of the matter?

Is that what they teach in the "short bus" civics class?

|3.7.09 @ 8:03PM|#

Odious as the state of Alaska's actions here are in denying the prisoner this chance to exonerate himself at no cost to the state, the Obama administration is right (I suspect for entirely the wrong reasons) to maintain that the federal government has no jurisdiction under the constitution to force Alaska to allow this testing.

Now, if only Obama actually had deeply held convictions on the rights of states to do as they pleased unless the federal government had enumerated powers under the constitution to step in, and was reluctantly upholding that principle at all costs -- but that is so clearly not the case.

Warty|3.7.09 @ 9:16PM|#

So how about Baltar outing Starbuck? What a dick.

Mad Max|3.7.09 @ 9:38PM|#

SIV,

Fair enough. I was trying to remember my grade-school textbook instead of updating my knowledge before posting.

PIRS|3.8.09 @ 8:43AM|#

It is my sincere hope that this move and other tramples upon liberty will cause libertarians (and anyone who cares about liberty) who voted for Obama in 2008 to not make the same mistake in 2012. I know he is a good speaker but do not let the Sirens tempt you into violating your principles. Perhaps, like Odysseus's crew you should put wax in your ears when he speaks and instead read the transcript of his speech - or you could just following along with him reading his teleprompter.

Mad Max|3.8.09 @ 11:18AM|#

Here's another problem with the 9th Circuit decision, as discussed in this amicus brief filed on behalf of the victim.

Mr. Osborne has bypassed the usual route for those who were convicted in state court and want to challenge their conviction in federal court. Instead of filing a habeas corpus petition, he has filed a 1983 civil-rights action.

The problem with this is that Congressional policy seems based on the idea that the way to challenge your state-court conviction in federal court is to file a habeas petition. Congress has provided a detailed statutory framework for how federal courts handle these sorts of habeas petitions so as to properly respect the authority of state courts. More importantly from the victim's standpoint, Congress has given crime victims specific rights in habeas proceedings filed by their alleged victimizers, like the right for the victim to be treated with respect and have her privacy respected, and to be notified by the court of her right to participate in the proceedings.

These rights don't apply to suits actions under 1983, so allowing suits like Osborne's would basically allow convicts to do an end-run around specific Congressional protections of victims' rights.

The significance in this case is that the 9th Circuit has done more than merely call for testing the semen in the condom found at the rape scene. The 9th Circuit also seems to have called for testing which on certain DNA material belonging to the victim, as well as on her clothes, and then to turn over these results to the defense experts.

Not much respect for privacy there - and the necessity seems doubtful, if we assume that testing the semen in the condom would by itself be sufficient to confirm Mr. Osborne's claims of innocence. Imagine a court letting some convict's lawyer rummage through your DNA, when there is no showing that this would even help the convict. And the victims seems concerned that testing DNA on her clothes would disclose the identity of other (non-rape-related) sex partners.

Why would convicts use the habeas corpus route, with its statutory protections of victims' rights, if they could use some other procedure where the courts aren't required to respect victims' rights?

Elemenope|3.8.09 @ 11:47AM|#

So how about Baltar outing Starbuck? What a dick.

Well, I think it reasonable to assume that she thought that's what would eventually happen if she revealed her predicament to him, and really was there a better time than that?

|3.8.09 @ 1:11PM|#

Raivo Pommer
[e-mail]

Teuer Geld

Er beruft sich hierbei auf ein Urteil des Landgerichts Coburg (Az.: 23 O 426/08). In dem Fall hatten der Beklagte und seine Ehefrau zusammen einen Kredit über 21 000 Euro aufgenommen. Als sie sich scheiden ließen, vereinbarten sie, dass die Frau den Kredit zurückzahlen werde. Im Gegenzug verpflichtete sich der Mann, zwei weitere Darlehen zu begleichen.

Diese Absprache teilten sie auch der Bank mit. Als die Frau die Tilgungen nicht leistete, kündigte die Bank das Darlehen und verlangte vom früheren Ehemann den offenen Schuldbetrag von 16 400 Euro. Zu recht, urteilte das Gericht: Denn die Absprache zwischen den früheren Eheleuten schütze den Beklagten nicht. Maßgeblich sei allein das Vertragsverhältnis zwischen der Bank und dem Mann. Der Beklagte sei durch die Scheidung oder die Abmachung der Eheleute untereinander nicht von seiner Schuld gegenüber der Bank befreit.

TallDave|3.8.09 @ 1:16PM|#

On the plus side, our new Messiah says he is screwing up because he's already overwhelmed by the job of being President and can't even handle visits from allies. So that's good news.

Dissent is the Highest Form...|3.8.09 @ 1:35PM|#

TallDave,

I hope he FAILS!!!

PIRS|3.8.09 @ 1:42PM|#

Fenfi,

I admit I am not that familiar with European divorce law but are you saying that Osborne is not protected because in filing under 1983 he is no longer protected in the same way that the former spouses were not protected in Landgericht Coburg? Is that the parallel you are trying to make?

Don\'t Question Our <s>Patriot|3.8.09 @ 2:52PM|#

On the plus side, our new Messiah says he is screwing up because he's already overwhelmed by the job of being President and can't even handle visits from allies.

It's almost like he has no executive experience besides running a campaign.

PIRS|3.8.09 @ 3:03PM|#

"It's almost like he has no executive experience besides running a campaign."

He ran a campaign? When was that?

Universal translator|3.8.09 @ 6:24PM|#

Expensively money It appoints itself here on a judgement of the regional court Coburg (Az.: 23 O 426/08). In the case the defendant one and its wife had taken up together a credit over 21,000 euros. When they let themselves separate, they agreed that the woman will pay the credit back. In response the man committed himself to settle two further loans. This arrangement they communicated also to the bank. When the woman did not carry the repayments out, the bank quit the loan and required of the former husband the open sum of a debt of 16,400 euros. Rightfully, the court judged: Because the arrangement between the former married people does not protect the defendant one. Relevant is alone the contractual relation between the bank and the man. The defendant one is not liberating by the divorce or the agreement of the married people among themselves of its debt opposite the bank.

huh?

|3.8.09 @ 7:53PM|#

Odd, no, that Obama is exquisitely sensitive to state's rights when those rights involve the state's exercise of power over its subjects, but is not so sensitive when those rights involve the state declining to follow his lead?

That whole liberaltarian thing, not working out? Is it too early to say that he's just not that into us?