Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Yet another absolutely appalling example of the Obama administration continuing a vile Bush administration position in a legal case with a profound effect on freedom and the rule of law. Now the Obama DOJ is continuing to support the Bush administration's position that prisoners do not have a right to access DNA evidence that may prove their innocence:
The solicitor general's office has turned down a request by the Innocence Project to disavow a Bush Administration stance on prisoners' access to DNA evidence in postconviction proceedings. As a result, on March 2, Neal Katyal will make his debut as deputy solicitor general by arguing before the Supreme Court in support of the state of Alaska's view that prisoners have no constitutional right to obtain DNA evidence that might help them prove their innocence -- even if the prisoners pay for the DNA testing themselves. The case is District Attorney's Office for the Third Judicial District v. Osborne.
This is an extraordinarily important case. William Osborne was convicted of the 1993 rape and kidnapping of a prostitute and sentenced to 26 years in prison in Alaska. On appeal, the state courts ruled that Osborne had no due process right to access DNA evidence in the case for testing that might prove his innocence, even if he paid for the test at his own expense.
That prompted the current federal lawsuit. The district court ruled against Osborne but the appeals court reversed that decision, saying, "[respondent's] right to due process of law prohibits the State from denying him reasonable access to biological evidence for the purpose of further DNA testing." The prosecutor in the case then appealed that ruling to the Supreme Court, which granted the cert petition and will hear oral argument in the case on March 2.
That the Obama DOJ would continue to maintain that prisoners do not have a right to access evidence for testing that could prove their innocence is nothing short of appalling. Equally appalling is the fact that Michigan Attorney General Mike Cox joined with many other Attorneys General to file a brief arguing against such a right as well.
Politics
Comments
I'm starting to think Holder was a baaaaad choice for AG. Most of the really ugly decisions coming from the administration seem to be based in the AG's office.
Posted by: Shawn Smith | February 26, 2009 9:20 AM
I am not American, so I do not understand this. what is the reason of even thinking about this? I try to analyze it from any conceivable point of view and I fail to find any meaning or motive to keep such a key element out of reach. It does not help the prisoner, it does not help the victim, it keep an innocent man in jail and it eats your taxes money that you desperately need now, so why?
Posted by: Guido | February 26, 2009 9:35 AM
That the Obama administration decided not to investigate Bushco crimes (wiretapping, torture, etc.)is upsetting enough even though some sort of political wrangling might be behind that decision.
But stopping anybody from pursuing evidence that might prove him (or her) innocent of charges has no political basis. No big shots will be hurt or exposed or compromised by allowing inmates all possible means of proving themselves not guilty.
This is making Holder look worse and worse, and by extension, President Obama.
Wasn't Holder on the hot seat for some such thing before he was confirmed? Maybe that should be revisited.
Posted by: Rodney | February 26, 2009 9:54 AM
Guido - As an American who watches constitutional issues closely, I too share your frustration on what possible argument is available to prosecutors that denying access to testing and results advances justice. The three I've read to date are all contained within the linked article Ed provides and are:
1) The Solicitor General for the Obama Administration is working within the traditions of keeping some consistency between administrations to supposedly defend its legitimacy. The rebuttal to this was also in the link; the Bush Administration didn't make this policy until last month and this position is an injustice.
2) & 3) are best served quoting the link:
I find all these arguments unconscionable and positively Orwellian. The justice system's primary raison d'tere is to defend our rights through due process of law, not deprive us of those rights using whatever rhetorical devices are at one's disposal.
Posted by: Michael Heath | February 26, 2009 10:08 AM
Re Michael Heath
The real reason that prosecutors don't want DNA testing post conviction is that, in their considered opinion, having guilty verdicts tossed out post conviction and the publicity that will so ensue, will tend to make juries more hesitant to convict defendants. In particular, juries may become very reluctant to impose the death penalty in jurisdictions where the jury decides on the penalty post conviction if it becomes evident that there are a significant number of such convictions that are erroneous.
Posted by: SLC | February 26, 2009 10:26 AM
Is there anything regular folk can do about these terrible decisions coming from DOJ? I'd write letters if I thought it would do a lick of good...
Posted by: Dan L. | February 26, 2009 10:39 AM
SLC,
That's a good point. In the short run it will be a nightmare for prosecutors trying to get a conviction when the death penalty is on the table. The upside is that they will need to respond by making greater use of DNA evidence so as to convice those juries.
Posted by: James Hanley | February 26, 2009 11:02 AM
How utterly vile. "Justice system" and "legal system" are terms that could not be further apart in this country.
Posted by: Johnny Clamboat | February 26, 2009 11:36 AM
How truly f'ing appalling. Disgusting.
Posted by: Jason R | February 26, 2009 12:07 PM
Ed: A political question, and then a request.
Politics: Can this be rationalized as "Obama has not yet put his stamp on the DoJ"? I want to give him the benefit of the doubt, but I don't want to be a sucker either.
Request: Could you start keeping a scoresheet on Obama DoJ rulings, Good and Bad? I'd like to be able to refer to such a list as time goes by. It might even make it easier for you to link back to related decisions as they pile up.
Posted by: xebecs | February 26, 2009 1:43 PM
If the policy was changed now, how would that impact the current federal suit?
Would sticking it out until the Judicial system works out the details make it more likely to stick despite the whims of future administrations?
Posted by: rpsms | February 26, 2009 1:51 PM
I'm curious...are there any instances of the Obama administration changing a Bush policy position on a current court case?
I can't think of any.
I can't excuse the crap that I've seen coming from the Obama justice department of late, but I'm not sure if we are seeing the result of policy decisions so much as a holding pattern on all pending cases. Reprehensible, to be sure, but I don't know how much we can read into any of this.
That said, I'm walking around with a sinking feeling in the pit of my stomach.
Posted by: kormgar | February 26, 2009 2:20 PM
Another reason for resisting post-conviction DNA testing: Overturned convictions make the prosecutor look bad.
Prosecutors do tend to be win-at-all-costs types.
Posted by: kamaka | February 26, 2009 5:09 PM
This should cheer everyone up about Obama's administration. The DOJ DOES make some good decisions these days.
http://www.newyorker.com/online/blogs/newsdesk/2009/02/almarri-indictment-today.html
Posted by: Luca | February 26, 2009 5:42 PM
The Almarri indictment is indeed good news. To me, the common theme seems to be that Obama & Holder believe these matters should be decided by the Courts or by Congress, rather than by Executive decision. There's some merit to this idea, as Executive Orders or decisions can simply be reversed by Obama's successor; establishing them in law or court precedent would make that harder.
Note that I'm NOT saying we shouldn't be holding Obama's feet to the fire on these issues. I may very well be wrong. I just haven't given up hope yet.
Posted by: WScott | February 26, 2009 6:50 PM
WScott's point about the Obama administration wanting to establish various rules as a point of law rather than an executive order is accurate—at least I've so read in several places. For instance Obama wants his recision of Bush's decision not to provide family planning funds to any group that supports abortion (even if supported by other, non-US funds) to be followed by congressional action making the Obama rule a matter of law, which would end the tit for tat change of the rules every time the party in power changes.
But that doesn't speak to this denial of potentially exculpatory evidence, which leaves me puzzled to be honest. The action has me wondering whether the decision to deny access to DNA testing even rose to the solicitor general or even the AG. Has Obama even appointed a solicitor general? Is that office still filled with Bush administration appointees and/or burrowed-in Bush acolytes? With Obama's encountering increasing difficulty vetting his nominees for several high profile political jobs, I've seen recurring stories about his having many such positions open or still filled by Bush appointees. Could this be a one consequence of that?
Posted by: Keanus | February 26, 2009 10:00 PM
I've done a quick look up on who staffs the SG's office. The SG's slot has been filled since January 16th by Edwin Kneedler, a Deputy Solicitor General since 1993 and a staff member since 1979. Obama has nominated Elana Kagan for SG, but she has yet to be confirmed. She was a tenured professor at the University of Chicago Law School and was dean of Harvard Law from 2003 until nominated by Obama for the SG position. Given her background, I think things may change, once she's been approved by the Senate. At least I'm hoping they will. Certainly her credentials are stronger than Holder's and she's likely to give him a run for his money, even if he has rank on her.
Posted by: Keanus | February 26, 2009 10:12 PM