Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Yesterday's court ruling in Osborne was simply one of the most absurd and appalling rulings I have ever read. Chief Justice Roberts should be ashamed of himself. Because of his ruling, innocent men are going to die in prison or via the death penalty. It really is that simple. What is absolutely shocking about the ruling is how utterly dishonest it is. Roberts is usually a careful judge who at least can state the legal issue accurately. In this ruling, his portrayal of the facts and legal questions in the case is one dishonest statement after another. To wit:
DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. The availability of new DNA testing technologies, however, cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt. The task of establishing rules to harness DNA's power to prove innocence without unnecessarily overthrowing the established criminal justice system belongs primarily to the legislature.
In the very first sentence of his holding he admits that DNA testing can conclusively prove guilt or innocence in many cases. That will be important to remember a little later. But how about the blatantly dishonest statement of the legal issues at stake? No one is suggesting that "every criminal conviction is suddenly in doubt" or that providing due process in cases where DNA evidence is available requires "overthrowing the established criminal justice system." He is plainly erecting a straw man to knock down, something routine in chatroom debates but far beneath a Supreme Court justice. And it only gets worse:
While Osborne does have a liberty interest in pursuing the postconviction relief granted by the State, the Ninth Circuit erred in extending the Brady right of pretrial disclosure to the postconviction context. Osborne has already been found guilty and therefore has only a limited liberty interest in postconviction relief.
So they admit that he has a liberty interest in accessing the evidence - obviously, for crying out loud, since his very liberty is at stake. But somehow that stake is diminished in Roberts' mind once the trial takes place, even after admitting earlier that the DNA evidence could prove him innocent. This is an absolutely bizarre bit of thinking.
The majority of the court seems to think that due process is somehow entirely separate from questions of guilt or innocence. But that is not only nonsense, it's dangerous nonsense. We guarantee due process not only as a matter of principle but also for the purely pragmatic reason that it helps lead to the truth. If the point of the criminal justice system is not to distinguish guilt or innocence as accurately as humanly possible, then it's time to scrap the entire system.
There is nothing inadequate about Alaska's postconviction relief procedures in general or its methods for applying those procedures to persons seeking access to evidence for DNA testing. The State provides a substantive right to be released on a sufficiently compelling showing of new evidence that establishes innocence. It also provides for discovery in postconviction proceedings, and has--through judicial decision--specified that such discovery is available to those seeking access to evidence for DNA testing. These procedures are similar to those provided by federal law and the laws of other States, and they satisfy due process. The same is true for Osborne's reliance on a claimed federal right to be released upon proof of "actual innocence." Even assuming such a right exists, which the Court has not decided and does not decide, there is no due process problem, given the procedures available to access evidence for DNA testing.
A rather ironic statement in a case where the plaintiff is being denied access to evidence for DNA testing, don't you think? "The system works perfectly, it allows access to DNA evidence. And the fact that it denied access to this man has no bearing on the validity of that previous statement." This is absolutely ludicrous reasoning.
But perhaps worst of all:
There is no long history of a right of access to state evidence for DNA testing that might prove innocence. "The mere novelty of such a claim is reason enough to doubt that 'substantive due process' sustains it."
Of course there's no long history of a right to access DNA evidence for testing. You know why? Because we've only had DNA testing for a couple of decades.
Most Supreme Court rulings have at least minimally plausible arguments on both sides. The cases that reach the court have vexed the lower courts and are typically close calls. This one is not. This one is nothing short of vile and disgusting. Innocent people will die as a result of it. And none of the five justices who signed on to the majority opinion could possibly care any less. Shame on them.
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My ongoing problem with conservatives is their continual perspective that infers government creates and grants rights rather than properly acknowledging our rights and the govt's obligation to defend, restrict, or prohibit such rights. We see this same wrongheadness in this case when all conservatives vote for a majority opinion where Roberts writes:
Federal judiciaries never create a new right in our form of government; they may reveal them, but they do not create them. We individually own our rights, which are either allowed free exercise, defended or not by government, restricted, or even prohibited given some grant of powers to government. But rights created by government? Only in an authoritarian form of government.
Besides conservatives' intellectual dishonesty, their looking to find our rights by government fiat or government documents rather than obligating the government to prove a delegated power is my primary objection to them having political power. Scary stuff.
Posted by: Michael Heath | June 19, 2009 9:40 AM
Well, at least we now know how Roberts would rule on the Sabbath-breaking motion sensor. This is indefensible.
Posted by: kehrsam | June 19, 2009 9:44 AM
I was under the impression that under US law defendants were entitled to all state evidence.
However, since the Supreme Court appears to have failed here, perhaps it's a job for Congress.
Posted by: alias Ernest Major | June 19, 2009 10:12 AM
This is the worst precident that the Supreme Court of the United States could have set. While we all understand the imporantance of convictions, it is equally important to have a DNA test when evidence presented contradicts the conviction. As shown by the innocence projects across the country, DNA is the best tool - hands down. They abandoned logic for tradition.
Posted by: Navin | June 19, 2009 10:15 AM
One of Justice Stevens' characteristics I just love about him is his ability to take Scalia's textualist approach to arrive at a conclusion that is the opposite of Scalia's and better argued. We find a similar approach by Souter in his dissent in this case.
Souter's dissent is narrow and most importantly - modest*, exactly what Roberts and Alito promised us in their confirmation hearings but fail to deliver in this case in spite of Souter providing them a clear path for their marketed approach.
Another example of conservative hypocrisy.
*A portion of Souter's dissent:
Posted by: Michael Heath | June 19, 2009 10:17 AM
Innocent people will die as a result of it.
If it's possible, I think you are understating the effect of this ruling. Innocent people will be put to death by the government as a result. This isn't about being unwilling to prevent the death of an innocent person, it's about purposefully putting to death someone who may be innocent.
Posted by: Odie | June 19, 2009 10:22 AM
I'm not sure it's quite that bizarre, at least in the context of a 14th Amendment Due Process claim. The dissent makes a comparison to the 14th Amendment's provision for state-provided counsel for indigent defendants, but even that only applies to the initial trial stage (or to automatic appeals). Once the trial is complete and guilt has been established, one's 14th Amendment Due Process rights are lessened. The state isn't obligated to provide a convicted defendant with a free attorney to appeal, and under Roberts' rationale, the state isn't obligated to provide any convicted defendant with access to DNA evidence.
I'm not necessarily saying I agree with the decision yet, but it's not that bizarre to say that one has fewer 14th Amendment Due Process rights after being tried and convicted than they had before.
Posted by: Loren | June 19, 2009 10:27 AM
The point is not, as Loren comments above, whether "one has fewer 14th Amendment Due Process rights after being tried and convicted than they had before." As a substantive matter, that is no doubt correct. The point is whether, from a substantive perspective, the state has a sufficient justification for depriving someone of liberty under these circumstances. This outcome seems to me the very definition of arbitrary and capricious, and thus is irrational. There isn't even a need for heightened scrutiny. If you prefer a procedural approach, then the question is whether the individual has been deprived of a liberty interest, and we compare interests and balance per Matthews. Here again, it is a hands-down outcome in favor of the individual.
I disagree with much of Chief Justice Roberts's jurisprudence but as Ed notes, he's usually much more thoughtful and careful. This is sloppy work; I'd expect better from one of my students.
Posted by: Dan | June 19, 2009 11:05 AM
As far as I can tell, Roberts doesn't decide anything based on law. He decides based on what benefits the establishment versus the little guy; and then twists the law to fit. This is just one more example.
Posted by: David | June 19, 2009 11:13 AM
We expect the Republicans to confirm assholes like this, and they fulfill our expectations brilliantly. But I thank the Democrats for rolling over and letting Bush create a biased court by confirming one devoted right-wing ideologue after another.
And I might as well thank President Obama for nominating anyone but a devoted left-wing ideologue. Get used to about thirty years of crap decisions like this.
Posted by: Gingerbaker | June 19, 2009 11:20 AM
If it is the (reasonable) case that one's 14th amendment rights 'lessen' after conviction, the right to exculpatory evidence should be a 'lessened' right. The weight of evidence is key in our system's outcomes, and as such, should be key in any post-conviction consideration. Willfully setting aside relevant evidence is to make our justice system less 'reality-based'. The problem here is that the exclusion of the consideration of the rights to the evidence are not based on their relevance but on mere procedural grounds designed to 'protect' the system rather than examine and discover the truth. Once the system abandons the pursuit of the truth, one has to ask 'What's the point?'.
Posted by: Mr Lynne | June 19, 2009 11:41 AM
The same is true for Osborne's reliance on a claimed federal right to be released upon proof of "actual innocence." Even assuming such a right exists, which the Court has not decided and does not decide
I am in no way legally adept (I took one poly sci class as an undergrad, whoo double science major) but does that mean what that sounds like it means? Is it true? Because if it's true, I'm fleeing the country.
Posted by: Stephanie W. | June 19, 2009 11:42 AM
I'm neither a lawyer nor a close watcher of the law, but when I read the wire service report about this decision in this morning's paper (I still read the news the old fashioned way) I was appalled. Roberts and the court majority are erecting a legal Potemkin village where the prosecution can deny the defense access to potentially exonerating evidence contrary to long standing precedent. Stalin, Mao and the Ayatollah's of Iran would be proud.
Given their approach to this issue, I suspect this court would rationalize away any objections to torture, when it comes before the court, as permissible because the accused wouldn't be incarcerated unless they'd done something wrong and therefore have "...only a limited liberty interest in post[arrest] relief."
Posted by: Keanus | June 19, 2009 11:43 AM
And because I thought of this after I posted: why would you even need to interpret it as a right to be freed if "[actually] innocent?" Why not address the fact that the state would self-evidently no longer have the *authority* to detain you?
Posted by: Stephanie W. | June 19, 2009 11:44 AM
Typo correction:
"...the right to exculpatory evidence shouldn't be a 'lessened' right"
Posted by: Mr Lynne | June 19, 2009 11:46 AM
I wholeheartedly disagree with the opinion, and thing Roberts and the conservative bloc have their heads up their asses with rulings like this that are designed to destroy what ought to be a clear right.
That being said, I saw an interesting line in the paper that suggested that many thought this case was a bad one for the SCOTUS exactly because of one technicality that had the possibility of setting precisely this bad precedent: The defendant was provided access to the DNA evidence, and rejected the opportinuty to do a more discerning test than that which the prosecutors did for tactical reasons.
Thus, denying them something later that they had rejected previously is inherently different from denying them something all the way through. The paper said also that Kennedy had used this reasoning in reaching a conclusion, which accounts for the swing vote.
Posted by: Mystyk | June 19, 2009 11:48 AM
It's hard to tell if it was decisive, but Roberts does make a fairly big deal out of this in his decision. Alaska has a statutory post-conviction procedure to request DNA evidence *and* a likely Court-approved state Constitutional right. Osborne apparently didn't pursue either of those remedies, instead going straight for the federal lawsuit.
Roberts also observes that the defense *declined* additional DNA testing prior to trial, and that this supposedly played a role in Alaska's current attitude toward providing Osborne with post-conviction access to the DNA for further testing.
Posted by: Loren | June 19, 2009 12:22 PM
In Japan recently they executed Michitoshi Kuma, even though the prosecutors knew that one of the two DNA tests taken to determine his guilt came back negative:
http://search.japantimes.co.jp/cgi-bin/fd20090614pb.html
Shocking stuff.
Posted by: Eamon | June 19, 2009 12:28 PM
I disagree with the ruling, but the concurring statement lends an interesting insight into why part of the majority ruled the way they did.
Respondent was convicted for a brutal sexual assault. At trial, the defense declined to have DNA testing done on a semen sample found at the scene of the crime. Defense counsel explained that this decision was made based on fear that the testing would provide further evidence of respondent's guilt. After conviction, in an unsuccessful attempt to obtain parole, respondent confessed in detail to the crime. Now, respondent claims that he has a federal constitutional right to test the sample and that he can go directly to federal court to obtain this relief without giving the Alaska courts a full opportunity to consider his claim.
I don't agree with the reasoning, but there is some logic there to their argument because it is true that Osborn refused the DNA testing during the trial and now demands the testing as a right after the conviction. You could argue that this isn't new evidence, and argue that this is a fishing expedition by the defense in an attempt to find something that might lend doubt to their conviction.
I don't agree with this aspect of the ruling, but it suggests to me that at least some of the justices were only ruling on the merit of this individual case and that there is a logical foundation for their argument.
I still firmly support the "finding the truth" argument of jurisprudence. If Osborne is innocent, then the guilty party is still out there, free to harm other individuals. The duty of the state is to find the person who is actually responsible for the illegal activities, not to find someone they can convict. Sometimes those individuals are the same people, but in a rather disappointingly high number of cases, they aren't.
Posted by: dogmeatIB | June 19, 2009 12:47 PM
What makes this ruling even more appalling, is that the Court didn't have to hear this case at all. they could simply have denied the appeal on the grounds that Osborne had previously declined to have a DNA test, and therefore could not claim violation of due process. Instead, the Court used this case as a transparent excuse to make up their own case law without regard to anything but their own prejudices.
Did someone say "judicial activism?" This really IS "judicial activism," and it's done with malice aforethought, for the sole purpose of subverting due process and taking away a universally recognized right, and setting a precedent for taking away more such rights in the future.
Posted by: Raging Bee | June 19, 2009 1:11 PM
It only takes 4 votes to grant cert, and we don't know which 4 those were. For all we know, the four dissenters all voted to grant cert, and the five in the majority all did exactly what you suggest they should have done.
Posted by: Loren | June 19, 2009 2:28 PM
Actually not much of the claims are true. Not when you understand that guilt and innocence are not absolutes in the US system of criminal law, especially when the public defender is used. That the determination of what the public will spend for defense of an accused person, outside what they are willing or able to spend on their own case by hiring their own lawyer and defense team, is a local, county or district matter determined by taxation and allocation of tax money.
The right to representation provided and paid for by public funding is limited by the right of the local district to determine how much the public defender gets in resources. The standard is that competent representation provided by the PD is, by definition, determined by whatever the people of a district are willing to tax themselves and allocate for said defense. If a district allocates few dollars the public defender office will be minimally funded. If the citizens tax themselves more and allocate the funds to the PD the defense will be much more lavishly funded. It is the voters who determine what is fair by directly or indirectly allocating tax dollars.
In this light the trial has been held and the accused found guilty. That they did or did not commit the crime has nothing to do with it. Coming back after the fact and determining that the state must expend additional time and effort to perform DNA testing would be changing the rules after the game. Appeals are are made on the basis of failed procedure or violated constitutional right, not guilt or innocence. Because the jury has made its determination of guilt.
If the state is forced to provide, by right, DNA testing which may cost hundreds or thousands of dollars for comparisons they might next logically demand that the PD must be staffed by Harvard lawyers who were in the upper ten percent of their class. Which violates the right of the citizens to determine the allocation of funds to the public defender's office and, indirectly, what is meant by fair representation.
It is all about the Benjamins. if you use the public defender your defending yourself with whatever crumbs the average citizen sees fit to sweep off the table in your direction. This is America, where money talks and you get justice in whatever amount you can afford to buy it in. the law says that if you cannot afford a lawyer one will be appointed. It doesn't say your defense will be well funded.
Redress comes in the form of changing the law, redefining a competent defense in terms of balance and forcing the state to spend more or less on prosecution or defense, or simply having taxpayers allocate more to the PD office.
The hyperbole about 'innocent men being sentenced to death' is nonsense. The jury of their peers has determined they are guilty in a struggle between opposing counsels with reasonable doubt going to the defendant. So, according to the law, they are guilty. Not having done the crime doesn't change a thing. It may offend the sensibilities of those who think justice is supposed to be a Platonic search for the 'truth' but that is the way the system is put together. Rough and inconsistent justice is about as good as it gets.
Posted by: Art | June 19, 2009 4:06 PM
Art,
What if a defendent is willing to pay for their own test, and the State still rejects it? AFAIK the Alaskan law in question does not make an exception for (post-trial) privately funded DNA requests.
Somehow, I don't think this is all about the benjamins. Well, its not only about the benjamins.
Posted by: eric | June 19, 2009 4:54 PM
"“There is no reason to constitutionalize” access through the courts when elected officials are making “a prompt and considered” response to the DNA phenomenon, the opinion concluded. "
Is quite astounding, given how difficult many prosecutors/DAs make it to get such access - if it was routine, the case wouldn't have been brought in the first place
Posted by: G. Shelley | June 19, 2009 6:27 PM
Witnesses take an oath to tell the whole truth, not just the truths they want to share. DNA testing, in a court proceeding or after it, discloses the whole truth. That our Supreme Court cannot recognize this simple fact and cut through the Gordian Knot of "legalese" shows how the court has been politicized, especially by the selections of the Bush administration.
Basically, if you're proven guilty in court, it doesn't matter if mistakes have been made. You're guilty. Suck it up.
Posted by: Rus Wornom | June 19, 2009 7:19 PM
The SCOTUS got this one right.
The "right" to post-conviction DNA evidence that the left advocates is not a right, as it is not in the Constitution. The SCOTUS's job is not to create rights out of the personal opinions of the judges, but to base them on the Constitutional text. Therefore, it is good policy to leave this one up to the states. That is the federal policy our nation was built on.
I'm not saying that it is bad for states to decide to grant a further level of review to convicts, should they so desire. But it is not a Constitutional right.
On a more practical matter, this man had every right to more precise DNA test evidence before the trial. Trial counsel felt this was a bad idea, figuring that this would have implicated Osbourne further, and was probably right, considering that the rest of the trial evidence pointed to Osbourne's guilt. Counsel examined the legal calculus, gambled, and lost. One doesn't get a chance to review freely available evidence that he or she chose not to use the first time around. This is the way our justice system works. As someone said before me, this man is just on a "fishing expedition" to find anything that will cast some doubt on the previous trial and hopefully get a new one. Having worked in a lawyer's office, prisoners filing frivolous habeas motions or civil claims against prisons and their guards is nothing new.
Keep in mind also that Osbourne later admitted his guilt under penalty of perjury at a probate hearing. Why give him a second chance if he admitted his guilt? Justice was served the first time. If the Innocence Project is looking for a "poster boy" for their movement, a rapist who can't get his story straight who is now back in jail for committing an armed burglary on probation is probably not the guy.
Posted by: Cal | June 19, 2009 7:27 PM
Cal stated:
You are truly the most ignorant poster on this thread. The Constitution does not grant us our rights nor does it list all our rights, see the 9th Amendment for starters which explicitly states all our rights are not all numerated in the Constitution. For example, you can take a dump in your toilet, you have that right, in spite of the fact one can't find text in the Constitution allowing you that right. Our framers also used absurd examples to make this point, just like mine. Crack a book.
Posted by: Michael Heath | June 19, 2009 7:52 PM
eric #23 -
While the private payment for DNA testing would eliminate the financial burden of the test itself on the state it would not relieve the cost of review, the reassembly of the states case and the view that the person has been determined by legitimate means to be guilty and that revisiting the case is a form of reverse double-jeopardy. A situation where the jailhouse lawyers can endlessly roll the dice using the excuse that if only some special test had been done the outcome would be different. Knowing they have nothing to lose and everything to gain.
There is also the precedent of allowing after-the-fact testing in this case will mean virtually everyone declared guilty to demand a laundry list of testing to be applied after-the-fact. While the tendency is to look at individual cases and use compassion and sympathy related to flawed outcomes, largely related to the PD system and inadequate funding, for the individuals the law is less about individuals and more about general rules that work in most of the cases. To seek reasonable outcomes in most cases even if it doesn't always work perfectly.
The US system, in a nod to the inevitable failures of very fallible humans and any justice system dependent on them to seek the ideal of justice, gives the accused significant advantages. But in the end the best anyone can get is a best effort toward a fair approximation of justice.
Personally I don't have any problem with further review of a narrow field of particularly weak and egregious cases where DNA evidence would be probative but there can't be any right to receive further investment of time and resources. Particularly when the court systems and PD offices are vastly overloaded, have been for several generations, and resources used in review are taken from current cases. At some time a case has to be considered settled.
Posted by: Art | June 19, 2009 8:09 PM
First of all, no one can definitively say what, exactly, the 9th Amendment protects. That is beyond the scope of this paragraph. However, the 9th Amendment has never been used as you suggest, to justify a right not already enumerated in the Constitution, such as this "right" to post-conviction review of evidence. The Supreme Court specifically rejected this use of the 9th Amendment, neglecting to cite the 9th to protect abortion.
A better way to have stated my position would have been:
The "right" to post-conviction DNA evidence that the left advocates is not an enumerated right, as it is not in the Constitution.
Therefore, because the Constitution does not specifically protect one's right to a post-conviction review of evidence, it should be up to the states to decide. Perhaps you would care to peruse the 10th Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Posted by: Cal | June 19, 2009 8:26 PM
Cal: You may have no explicit right to DNA evidence, but you do have a right to be secure in your person and effects against unreasonable seizure. If DNA testing shows that you did not commit a crime, then seizing you for that crime would be unreasonable, as would continuing to hold you if such testing proved your evidence after the fact, considering that holding is part of seizing.
You also have a right to compulsory processes for obtaining witnesses in your favor, which has consistently been read by the court to included evidence as well as witnesses. Thus, Alaska's statue, which allows the DNA test to be denied by the plaintiff, could be read as unconstitutional because it is not a compulsory process. One could also say that access to any new technology which allows for more precise collection of evidence (or at least, to the results of such technology), according to this section, would be required to be provided at trial, by the state, to the defendant; after all, obtaining witnesses and evidence for the defendant is supposed to be compulsory.
Art: While you are right that no system is perfect, you are wrong to think that the logic you present here is the only logic that matters in our system. If it did, then localities could refuse to provide an adequate defense for the accused on the grounds that to do so would be too expensive. For instance, if a locality refused to pay public defenders any more than 10 dollars to defend each client because they refused to pay the taxes to fund beyond that limit, that would be a clear violation of due process, even though they would still be providing public counsel of a kind. Beyond this, the Constitution is not a descriptive document but a imperative one; governments must fulfill its tenets. Whether or not doing so is profitable or efficient for them is immaterial to the federal government. Similar arguments were made in resistance to desegregation and in reference to the American's With Disabilities Act; these arguments didn't fly then, and they don't, past a certain point, in regards to public defense now.
Posted by: Julian | June 19, 2009 8:44 PM
clearly, that should read 'Americans'
Posted by: Julian | June 19, 2009 8:47 PM
I don't have the details specific to this case, but it seems to me that it's entirely reasonable that a new, previously unavailable, test can create a situation where something not worth looking at for the defense can turn into something that is worth looking at.
No lawyer here, but it seems to me that one of the underlying misconceptions in the system is that the quality and character of evidence is established at trial and is immutable after that. But we know from just living in the 21st century that the quality and character of evidence can change post-conviction simply because we keep getting better at looking at it. Since quality and character of evidence plays such an important role in conviction, I think it should play an equally important role in evaluating post-conviction motions.
Posted by: Mr Lynne | June 19, 2009 9:30 PM
As for the due process argument, the defendant was accorded due process, his fair trial. Osbourne's lawyer's decision not to further test the evidence, which was freely available at the time of the trial, was not inherently unfair and did not constitute a violation of due process. Effectively waiving one's right to further test the evidence does not mean that the defendant should get another go if the trial happens to go sour.
Furthermore, Osbourne confessed under pain of perjury to the rape during his probate hearing. Because Osbourne admitted guilt under oath, I do not believe that Osbourne is entitled review under due process grounds.
As for compulsory process, this does not apply in this case, as the state completely followed the rules of discovery. Defense was in possession of the evidence provided by the prosecution at trial, and could have run further, more specific tests, but chose not to. The Defendant of course had the right to confront and examine evidence weighed against him at trial; what evidence did the defense compel that the state did not provide? Because defendant had full access to the DNA at trial, a state violation of compulsory process fails to exonerate the defendant.
Posted by: Cal | June 20, 2009 1:40 AM
This, along with my earlier example of the right to counsel, is a prime example of how post-conviction rights differ from pre-conviction rights. Before the trial, the defendant does indeed have a constitutional right to compel production of DNA evidence. That's not at issue in this case.
But once there's a conviction, defendants no longer have the Sixth Amendment constitutional right to subpoena witnesses willy-nilly, or to compel the production of certain evidence at any time. You don't get to subpoena witnesses while you sit in prison, hoping to appeal. It's a fairly obvious rule; if you gave convicted individuals the right to constantly compel the production of individuals and items, up until the time of their release, then it would be a neverending stream of requests to compel.
Posted by: Loren | June 20, 2009 7:50 AM
I think that the big problem here was the broadness of the court decision. Mr. Cal is correct that, given the facts in this particular case, the court could have correctly ruled narrowly that this particular miscreant did not have the right to further DNA testing as he had the opportunity for such testing before his trial and his attorney chose not to avail him of such testing. However, the broad court decision that no individual has a right to post conviction DNA testing, regardless of the circumstances, is obscene. Thus, attorney Peter Neufeld is quite correct in stating that this broad decision will lead to persons being incarcerated and even executed for crimes they did no commit. I suspect that Mr. Cals' rather callous dismissal of this fact would not hold up if a member of his family or even himself were in the dock.
Posted by: SLC | June 20, 2009 7:56 AM
Reading those comments arguing for the majority opinion it appears that the commenters either distorted the finding of facts in the case or failed to read the dissents, which elaborated on those findings to the point they discredit the commenters' basis for their arguments. These commenters also appear to believe the SCOTUS is some super trial court rather than an appellate court given they focus on the guilt/innocence of the prisoner rather than the courts insuring a fair and proper administration of powers and proper protection of rights. Here's a relevant portion of Souter's dissent showing one example of this (italics below are mine):
Cal - you misrepresented my fisking of your comment so badly I won't be taking the time to respond in detail beyond the fact that my raising the 9th Amendment was a mere example that we don't find our rights only in the text of the Constitution, which I clearly stated as such, not my entire argument against your false claim that SCOTUS should find our rights "only in the Constitutional text", which again, the 9th amendment, and even the 10th amendment example you raise, clearly contradicts this claim you make.
Your raising the 10th amendment as an argument that states have been delegated powers that deprive us our rights fails to recognize that those powers and rights delegated in the 10th are not merely to the states, but also "to the people"; where our inalienable rights continue to be protected by federal powers against state encroachment of our rights - the primary reason "the people" was included. I realize you included 'the people' clause in your rebuttal to me, I can only assume you believe it means some majority entity rather than each of us individually - where "the people" is and continues to be interpreted as each of us individually, not collectively.
This is especially obvious when considering the provision in the Articles of Confederation that was supplanted by the 10th Amendment. The Articles extended far more power, and far less federal protection of our rights to the states than the 10th. Here is the Articles provision:Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.
Posted by: Michael Heath | June 20, 2009 8:46 AM
TO the author: I'm a lawyer. Not sure if you just want to bash conservatives, or if you are just ignorant. Roberts is saying that this does not rise to a violation of his Constitutional Rights. He is NOT saying that this guy or similarly situated people should not have rights, he is saying that such right is not a Constitutional right. He is saying the LEGISLATURE should fix this problem if the LEGISLATURE believes it should be fixed. Not every problem that arises has a Constitutional solution.
Besides, the testing that he proposes now, after the trial, was available at the time of trial. He chose not to have it done, but instead had it tested using the same method that the state employed. He has NOBODY to blame but himself. DID YOU BOTHER TO READ THE OPINION????
Posted by: John Doe | June 20, 2009 9:14 AM
John Doe - did you read the opinion, including the dissent? I doubt it given your false claim, "the testing that he proposes now, after the trial, was available at the time of trial. He chose not to have it done".
Here are some findings of fact in Stevens'dissent:
Posted by: Michael Heath | June 20, 2009 9:27 AM
Robert's opinion said this: ("[T]he DNA testing that Osborne proposes to perform on this evidence existed at the time of Osborne's trial"); Osborne II, 163 P. 3d, at 984 (Mannheimer, J., concurring) ("[T]he DNA testing [Osborne] proposes would not yield 'new evidence' for purposes of ... [Alaska Stat. §12.72.010]" because it was "available at the time of Osborne's trial").
I could be a creep like you and ask whether you read the Majority opinion. Not unusual for a liberal Justice to lie about facts, I might add.
Posted by: John Doe | June 20, 2009 9:47 AM
John Doe - do you really believe that liberal justices "lie" and if so, they lie at a rate significantly more than conservative justices to a point it's worthy of being mentioned as a distinguishing feature? Where is your empirical evidence for that? I would love to see that. Currently I assume you pulled this assertion right out of your ass.
And yes, I did read the majority opinion, otherwise I'd be unable to make my first comment on this thread since it directly addresses Roberts' clearly unconstitutional argument that federal judiciaries are granted powers to "create rights", where the majority chose to not create and grant such a right in this case. The government is clearly not delegated powers to create rights.
If you had used some reading comprehension regarding the Roberts/Stevens conflict on testing availability, you'd notice that Roberts merely took his assertion from a record that Stevens showed was in error. The fact that the Roberts' opinion ignored that finding by the minority provides evidence regarding the character, or lack of it, about conservatives that is found lacking in your unsubstantiated rhetorical attack on liberal justices. So thanks for bringing up each sides' character.
Posted by: Michael Heath | June 20, 2009 11:28 AM
Listen, dumbass. Roberts' opinion cited to the appellate record as proof that the test EXISTED at the time of the trial, and Stevens' opinion did likewise as proof that it DID NOT exist. They can't both be correct. I don't know which is correct. You are assuming Stevens' version, I'm assuming Roberts is correct. You call Roberts' version an "assertion" but swallow Stevens' version as The Gospel. I don't KNOW which version is correct, but at least I am honest enough to admit that I don't know.
The opinion does not even say up front when the trial took place. The crime occurred in 1993. O.J. Simpson's trial occurred in 1995. Virginia used PCR amplified DNA testing back before 1990 (Spencer v Commonwealth, the first reported I believe case using DNA testing to convict for the death penalty). That tells me the test was very likely available sometime in 1993 or 1994.
I may be right, I may be wrong, but you are a stupid prick.
Posted by: John Doe | June 20, 2009 12:12 PM
Bwaahaahaa. For all you frothing at the mouth liberals out there, Beau Biden signed on to the brief opposing this would be rapist and killer's case. Yeah, THAT Beau Biden:
Joseph R. “Beau” Biden, III
Attorney General
State of Delaware
820 N. French Street
Wilmington, DE 19801
(302) 577-8500
So did Edmund G. Brown, Jr. another arch-conservative. Not. Freaky Jerry Brown, about as leftist as you can get. So all you flaming liberals trying to portray this as a terrible conservative decision are just barking up the wrong tree.
http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/08-6_PetitionerAmCu31States.pdf
Scroll down to page two and three...
Posted by: John Doe | June 20, 2009 1:06 PM
John Doe - Your last post is a straw man and an argument from popularity. You seem to be advocating for a trial court decision against opponents which exist only in your mind.
The criticisms against the majority ruling in this case in this forum have little to do with the guilt or innocence of Mr. Osbourne, it is instead directed towards whether due process was properly executed in this case and far more importantly than this case, the damage to optimal due process in future cases given this ruling.
As several observant commenters have wisely noted, this was a bad case to grant cert given the findings of fact in the trial. And yet those findings have helped provide ammunition to the justices in the majority to establish a precedent that has the federal gov't failing to properly defend our rights in state court and failing to insure proper due process is employed in the state courts.
Rhetorical and logical fallacies in this forum will not get you very far.
Posted by: Michael Heath | June 20, 2009 1:30 PM
Between "Listen, dumbass..." and "... you are a stupid prick." John Doe also wrote, "I may be right, I may be wrong..."
So, Michael makes progress.
But is it worth the effort?
No.
I hope that giving a little extra education to the rest of us is worth the effort.
Posted by: Janus Daniels | June 20, 2009 1:32 PM
Michael Heath, I'll admit it, I have NO idea what you are talking about in 43. I know what you are trying to say, but I fail to see how my arguments are a straw man and an appeal to popularity. I kind of get the appeal to popularity, but that is not what I am arguing. I am not addressing the rightness or the wrongness of the decision now, but the viceral hatred that is spewing from the mouths of liberals based upon the notion that this was a terrible decision brought down by conservatives. I was pointing out that it was not just conservatives who pushed for this decision, but also liberals. That does not address the correctness of the decision, but rather that this is not a conservative vs. liberal decision.
p.s. Janus, if you have nothing to add substantively, why not stfu?
Posted by: John Doe | June 20, 2009 2:06 PM
Michael Heath -
Discussing the theory behind rights could be a useless exercise, but I believe you are wrong, so here goes:
You believe that post-conviction review of evidence is an unalienable Constitutional right. "We individually own our rights, which are either allowed free exercise, defended or not by government, restricted, or even prohibited given some grant of powers to government." You obviously believe that the Court has no power to take away this "right of post-conviction review," otherwise you wouldn't be so up in arms about this decision.
We know some things are rights because they are expressly enumerated in the Constitution. This is not one of them. Furthermore, it is not protected by inferences from other Constitutional amendments.
BUT
You argue that the right to post-conviction review is a Constitutional right, though not enumerated. Let's examine this argument.
The problem with your assertion that everyone has certain rights regardless of what the Constitution says is insane, as no one person could then definitively say what those rights were. I could claim anything I wanted was a right. That's why we have a Constitution to protect certain rights at the federal level, and then we leave it up to state and federal legislatures to determine what the other ones are, as long as they do not conflict with the overarching Constitution.
Without specific references or inferences that can be drawn from the Constitution, your argument begs the question. "Why is it a right?" I might ask. "Because everyone has it and the government can't take it away." "But why can't the government do that?" I then ask. You would have to other response other than, "Because it is a right." This sounds like your argument in its distilled form, a logical fallacy.
Furthermore, you hint that this may be a natural right, or a human right, or a God-given right, likening this case to your right to "take a dump." This is not an apt analogy, as expulsion of feces is a fundamental human activity. Without excreting feces, the body will die. Post-conviction review of evidence could not be likened to a fundamental human right because it only refers to a specific practice rooted in a specific governmental system.
Because you cannot prove that you have this inalienable right by the Constitution (having only your assertion as evidence) or by some form of natural law, it is left to someone else to decide.
THEREFORE
Absent rights being protected by the Constitution, the Court should leave it up to "the people," to decide what freedoms someone should have. If SCOTUS decided arbitrarily that this was in fact a Constitutional right, why would their opinion be any better than yours, or mine, if it was not grounded in any specific text?
So when the legislature decides what freedoms it will accord to its citizens, at least the elected legislature defends the will of the people rather than basing its views on their own unfounded assertions, as the Supreme Court does absent any textual basis for certain decisions. Therefore, I believe that I am in the right to argue that the SCOTUS did, in fact, rule correctly, leaving it up to the states to decide whether or not they would condone this practice in their jurisdictions rather than justifying it using the US Constitution.
Posted by: Cal | June 20, 2009 3:55 PM
As a question of natural justice, if it's claimed by the state that the semen is Mr Osborne's why does he not have a right to a sample of it?
Posted by: BemusedUK | June 20, 2009 9:13 PM
For what it's worth, the state isn't really claiming that the semen is Mr. Osbourne's. They claim it could be Osbourne's. Only whether or not he has the right to further examine this evidence is in dispute.
Furthermore, people who are convicted of crimes necessarily give up some of their rights post-conviction. For example, convicted felons lose the right to own firearms and vote. People who are incarcerated lose the right to freedom. The court ruled that Mr. Osbourne did not have the right to further examine the evidence by means of a civil rights suit after his conviction in a fair trial.
Posted by: Cal | June 20, 2009 9:30 PM
Cal,
I hope you take this in the spirit it is stated...
I really and truly hope that you get a chance to find out up close and personal, what it means to be convicted "fairly" and not get to appeal it, because procedure was followed - even if you are totally innocent and evidence comes to light that would prove you so.
Fuck you and jondoe very much...
Posted by: DuWayne | June 20, 2009 9:40 PM
Cal, thanks for your input. But I'm still 'bemused'. If it could be someone else's then why, again as a matter of natural justice, doesn't he have the right to use it as evidence, potentially, of his innocence (or otherwise)? I'm thinking of cases I've seen in the UK where it's stated that there's one in a million chances the DNA doesn't belong to the accused. Doesn't that mean (in the UK population) there's only a 1 in 60 chance they've got the right man (all other evidence excluded).
It's late for me. Time for bed. Goodnight.
Posted by: BemusedUK | June 20, 2009 10:28 PM
Rats, I told you it was late for me! I made the wrong argument. If the semen is deemed to be evidence of his guilt then it must assumed to be his. His, as in he owns it in some natural way. So why can't he have some of it back as evidence?
A final goodnight to all my friends across the Pond.
Posted by: BemusedUK | June 20, 2009 10:33 PM
BemusedUK -
DNA tests ruled out the other suspects in the case and indicated that Osbourne could have been the perpetrator. Defense chose not to further test the DNA to determine whether it was his or not (taking into account the other facts of the case, defense counsel feared that it would indicate his guilt. Furthermore, his conviction didn't rest on DNA evidence alone, by the way.) He had every right to further test this DNA during the trial stage, but not post-conviction, as people who are convicted lose rights normally accorded to ordinary citizens.
DuWayne -
"what it means to be convicted 'fairly.'" - Defense had the right to perform more specific DNA testing during trial but waived that right, choosing not to go forward with the testing for reasons mentioned above. So Osbourne got convicted. They took the legal strategy of going with the “mistaken identity” defense and lost. Sounds fair to me.
"and not get to appeal it," - Osbourne had a criminal appeal (which is different from this civil suit in the SCOTUS). He lost that, too.
"even if you are totally innocent and evidence comes to light that would prove you so." - When evidence exists at the trial stage (which it did in this case) and the defendant chose not to use it (Osbourne waived his right to more specific testing), one does not have the right to bring it up later as an "ace in the hole" to demand a new trial, and rightly so. This would undermine the justice system as we know it.
DuWayne, I am not arguing that denial of post-conviction DNA testing is bad policy. I believe that states should make laws making provisions for borderline cases (probably not Osbourne's, as evidence besides DNA indicates guilt) to obtain DNA testing post-conviction, especially in those cases where DNA evidence did not exist at the time (old cases in the 70s and 80s, for example). However, I agree with the court that it is not a federally protected right.
Posted by: Cal | June 21, 2009 2:04 AM
Cal said:
"...people who are convicted of crimes necessarily give up some of their rights post-conviction."
Yes, of course, but they should not be deprived of the right to continue to prove their innocence. Court convictions are "beyond reasonable doubt", not beyond ALL doubt. Given the possibility of error in due process, surely convicted felons have a natural right to bring forward evidence that would prove their innocence?
To deprive someone of their rights due to error must be one of the worst things a democratic society can do. It is sad that Roberts and his cohorts egregiously set their face against the many notorious cases of wrong convictions from the last few years.
Posted by: Bemused of Ireland | June 21, 2009 4:26 AM
http://www.gemworld.com/USA-Unalienable.htm
The logic that Roberts employs in his dismissal of human life as having importance insufficient to warrant treatment with greater priority than the priorities of the Government IS EXACTLY THE LOGIC THAT CAUSED OUR FOREFATHERS TO FIGHT A REVOLUTIONARY WAR AND ESTABLISH THE UNITED STATES OF AMERICA.
I can find nothing in his descriptions that even remotely legitimizes his opinion. The only conclusion that I can logically find to draw is that he is attempting to continue on with the Bush Administration's Agenda of systematically invalidating KEY rights of The People, possibly with the intent of rendering us incapable of defending ourselves against a totalitarian Federal Government controlled by a collective of which the Bush Administration was, and still is, a part.
This Federal Government has destroyed our reputation as peace loving people by starting illegitimate wars, has assisted a criminal alien invasion from Mexico resulting in the loss to The People of incalculable value, has sabotaged the economic foundation of our country via bad faith and dishonesty resulting in an impending Economic Depression, has caused the deaths of tens of thousands of Citizens and Military Personnel through reckless negligence in the administration of securing our borders from attack and by responding with despotic disregard to our emergencies while simultaneously displaying a zealous lust for securing greater control of our liberties in the form of sabotage to key protections such as the Posse Comitatus Act.
The violations in the Executive and Legislative Branches of the Federal Government against The People have been so numerous over the last decade that it would be impossible to itemize them here, but now our LAST BASTION OF HOPE that the Separation of Powers would provide The People PROTECTION against A CORRUPT GOVERNMENT has PROVEN ITSELF EQUALLY CONTEMPTUOUS OF THOSE IT WAS CREATED TO PROTECT by PURPOSEFULLY INTERPRETING THE INTENT OF OUR CONSTITUTION IN A MANNER THAT, ONCE AGAIN, REALISTICALLY THREATENS TO KILL EVEN MORE OF THE INNOCENT AMONG US.
It was for reasons terrifyingly similar that Jefferson first drafted what would become the Declaration of Independence. In that, Jefferson stated-
That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
It was the collective intention of The People of the thirteen States to cast aside an abusive Government and create a Federal Government that would facilitate the well being of The People. I think it is time that The People of the 50 States actualize their Right to Disband that which no longer serves their purpose and put up, in it's place, a Federal Government that will vigorously protect the VALUES that we unwisely entrusted to the Federal Government we now suffer. I truly believe a CONSTITUTIONAL CONVENTION should be convened as soon as possible. As we speak, the State of California is in dire risk of collapse from the economic assaults perpetrated by gross national maladministration combined with a foreign assault from the south, uninhibited by Federal Government resistance, which, is yet, still another failed obligation of the Federal Government to provide the States Protection against invasion. I think I'm going to write a letter to my Governor asking how the Governors of the 50 States could assemble The People effectively to repair this tragedy that was once our home.
Posted by: ANYCITIZEN | June 21, 2009 5:47 AM
ANYCITIZEN -
I challenge you to show me anywhere where this is one of the "KEY rights of The People."
The majority opinion doesn't say anywhere that post-conviction review of evidence is necessarily a bad thing, it's just not a Constitutional right. It's up to the states to address.
Bemused of Ireland - "...surely convicted felons have a natural right to bring forward evidence that would prove their innocence?"
1) You have the right to bring forward evidence until you are proven guilty beyond a reasonable doubt (convicted). I don't think I would want juries setting alleged criminals free on unreasonable doubt, by the way. That's just silly.
2) Alaska does understand that new evidence may come to light later, and has rules which allow defendants to petition for rehearing based on new evidence, including DNA (Alaska just doesn't have a statute that deals specifically with DNA). Petitions for rehearing are covered under Alaska Stat. §12.72 (2008). However, the appeals court ruled that because the evidence was not new Osborne was not entitled to rehearing. It was not new because 1) the DNA evidence was present at trail, and 2) Osborne's counsel chose not to perform more specific testing at trial for tactical reasons.
In other words, because Osborne had the opportunity for specific testing the first time, but counsel chose not to go forward with it, he shouldn't get a second chance to do something that was freely available to him the first time that he did not choose to take advantage of, just because he received an unfavorable decision.
I'll cite the specific portions of the statute if you so desire.
Because the SCOTUS ruled that post-conviction review of DNA is not a right, I think it would be good for states to follow the Federal government’s lead in adopting the Federal testing policy. Convicts should be required to swear under oath, under pain of perjury, that they are innocent. That way, if DNA indicates that they are not, in fact, innocent, the state could charge them for perjury and add to their sentence. This would cut back on the mountains of frivolous litigation that would result from unfettered access to post-conviction DNA.
Posted by: Cal | June 21, 2009 1:32 PM