Conservative Justices’ Strange Enthusiasm for the Punishment of the Innocent
John Roberts (Wikimedia)
Here’s a beaut of a decision from the increasingly brutal and inhumane conservative-dominated Supreme Court. Not content with gutting anti-discrimination legislation, a 5-4 majority has decided that if people are wrongfully convicted they should be punished anyway because, hey, tough on crime!
In 1993, William Osburne was convicted of kidnapping, assaulting and raping a woman in Anchorage, Alaska. He spent the next 14 years of his life behind bars. Osburne insists that he is innocent, the State of Alaska has in its possession DNA evidence which will once and for all prove his guilt or innocence, and Osburne has offered to pay for DNA testing out of his own pocket. Allowing Osburne to prove—or disprove–his claim of innocence will cost Alaska literally nothing.
Nevertheless, the Supreme Court held today in a 5-4 decision by Chief Justice Roberts that Osburne is out of luck. Although Roberts conceded that “[i]t is now often possible to determine whether a biological tissue matches a suspect with near certainty,” he determined that Osburne has no right to pay for a test that could exonerate him for a crime he did not commit. Allowing Osburne to prove his potential innocence, Roberts said, risks “unnecessarily overthrowing the established system of criminal justice.”
Obviously, the purpose of the established system of criminal justice is to use punishment of the guilty as a means of controlling crime. The general hostility of most people in the law enforcement and prosecutorial universe to exonerating evidence is a little bit hard to understand. The predominant thinking of Alaska in this case seems to be that the punishment of the innocent works as a close substitute for the punishment of the guilty, so that given the heinous nature of the crime the state has a strong interest in convicting someone or other of it irrespective of the facts. This is exactly the sort of madness and injustice we rely on the judicial system to rescue us from. But not the new Roberts Court!
The two cases handed down yesterday are just two new additions to the trend observed by Jeffrey Toobin, “in every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.” That’s conservative jurisprudence in a nutshell.
110 Responses to “Conservative Justices’ Strange Enthusiasm for the Punishment of the Innocent”
Register
RSSLogin
Topic Cloud
ArchivesBlog RollAbout Matt YglesiasContact Me
Donate
June 19th, 2009 at 10:55 am
It always amazes me that an ideology that is so convinced that the government is the problem and can do no right in all other aspects of life can believe so firmly that government can do no wrong in the prosecution and punishment of crime.
June 19th, 2009 at 10:59 am
i wish roberts represented “conservative” jurisprudence, but instead, he represents “thuggish” jurisprudence.
June 19th, 2009 at 10:59 am
I’m sympathetic to this viewpoint, but don’t we have obvious recourse against the Roberts Court’s decisions? The laws can be changed… and clearly should be.
June 19th, 2009 at 11:03 am
What Howard said. These authoritarian assholes can only be described as “conservative” if scare quotes are used around that word.
June 19th, 2009 at 11:03 am
I’m a tough-on-crime, law-and-order person for the most part, and I think this decision is atrocious, and evil.
June 19th, 2009 at 11:04 am
I’m sympathetic to this viewpoint, but don’t we have obvious recourse against the Roberts Court’s decisions?
Yeah, Congress should start clipping the court’s wings by reducing its jurisdictions. Or increase the number of justices. This is bullshit.
June 19th, 2009 at 11:05 am
Re: These authoritarian assholes
I wouldn’t even call them authoritarian. Authority presupposes legitimacy. What Mr. Roberts invokes here isn’t authority, it’s thuggery. Just what makes Mr. Roberts different from the late and unlamented Prosecutor Vyshinsky.
June 19th, 2009 at 11:07 am
“unnecessarily overthrowing the established system of criminal justice.”
What could possibly be more necessary than determining if an innocent man is serving a rapist’s sentence while the rapist walks free?
June 19th, 2009 at 11:09 am
I guess the defendants must be guilty of something, or else they wouldn’t be the kinds of lowlifes that the police & prosecutors put in front of the courts in the first place, right? And for the right, the deterrent (and reassurance for uninformed voters, which is what really counts) effect is because of the the images and spectacle of arrests, mugshots, trials, etc., not necessarily whether the defendants are guilty as charged or not.
Sigh… I don’t know how to deal with the right-wing worldview– it’s so completely brutish and willfully ignorant, so devoid of any principles higher than regularly asserting dominance, that I don’t even want to deal with conservatives casually IRL.
June 19th, 2009 at 11:11 am
It’s disheartening to think that Obama’s first choice for a Supreme Court justice is also rather authoritarian:
http://www.theagitator.com/2009/06/09/sotomayor-authoritarian/
June 19th, 2009 at 11:16 am
I agree not allowing the DNA testing is retarded and unjust, but the solution is to CHANGE THE LAW; the solution is not to have the court find a “constitutional right” to DNA testing. You know, in many ways the constitution is outdated, it was written by people who knew it would be outdated, which is why it is focused on negative rights. The framework is set up so that it is elected government that reacts to changes in society and acts accordingly. So why are you mostly railing against the court, instead of elected officials?
June 19th, 2009 at 11:17 am
I also think it is a bit unfair to paint all “conservatives” with this brush. Roberts and Alito were deliberately chosen not as general purpose “conservatives”, but rather on the expectation that they were specifically authoritarian-minded and deferential to the government on criminal and defense issues. So, it isn’t a surprise the Bush Administration got exactly what it wanted out of them.
By the way, I actually consider myself a process-minded person, meaning I can understand why sometimes it is important for subsequent courts to defer to the results of prior legal proceedings even if it appears to them that the results may be incorrect. I would also note that this is not always a mindset that favors the prosecution in criminal matters, and indeed would cite “double jeopardy” as an example of such a doctrine which often favors defendants.
But in any event, I really think there should be an “exculpatory DNA-evidence exception” to this general approach. DNA evidence is really sui generis with respect to the way it can single-handedly, reliably, quickly, and cheaply exculpate defendants, and so whether through court decisions or legislative action, we really should make it possible for anyone convicted of a crime to get a DNA evidence review if they were convicted before DNA analysis was possible or before the relevant DNA evidence was available.
June 19th, 2009 at 11:17 am
Roberts’ concerns about opening up too many convictions to challenge reminds me once again of Justice Brennan’s trenchant observation that such concerns represent a “fear of too much justice.”
June 19th, 2009 at 11:18 am
The general hostility of most people in the law enforcement and prosecutorial universe to exonerating evidence is a little bit hard to understand.
The enforcement side of our judicial system believes every charge is valid and every conviction deserved. It’s a professional point of view, and it’s understandable, even if it’s untrue.
The real problem comes when the prosecutorial mindset takes a seat on the bench, and removes the umpire. At this point, the defense has no last uninterested party of recourse, and you get the kinds of rulings made by this court.
June 19th, 2009 at 11:18 am
Where I live, in Dallas County, Texas, we just saw our 20th DNA-based exoneration. This time, it was a guy who had spent 23 years in a Texas prison for a rape he did not commit. Our current DA has made this cause a special point of his administration. You probably guessed he’s not a Republican.
June 19th, 2009 at 11:22 am
“The general hostility of most people in the law enforcement and prosecutorial universe to exonerating evidence is a little bit hard to understand.”
As a law enforcement professional, I don’t see this mindset with the people I work with. The people in my office thought this was a very stupid decision, and our office is split about 50/50 between Republicans and Democrats.
June 19th, 2009 at 11:22 am
I wouldn’t even call them authoritarian. Authority presupposes legitimacy.
Authoritarians are precisely people who reliably presume that the relevant authorities are acting legitimately.
June 19th, 2009 at 11:25 am
As a law enforcement professional, I don’t see this mindset with the people I work with.
I also would note that in my experience, far from all law enforcement professionals share this mindset. I would suggest rather that it is endemic to a certain sort of politician and political ideologies, not necessarily to certain classes of civil servants.
June 19th, 2009 at 11:28 am
And this is how it happens here, one small step at a time. The rights of the people are reduced, slowly but surely, and the rights of the police and prosecutors are increased…
I can fully understand the hostility of police and prosecutors to making exculpatory or potentially exculpatory evidence available. Their incentives are completely on the side of getting scalps on their belts, and real guilt or innocence doesn’t enter into it. I can even understand elected judges having the same incentives. I can’t for the life of me understand how federal judges can be so indifferent to whether the right person is found or not.
And if this would amount to “overthrowing the established system of criminal justice”, then it needs to be overthrown, torn into little shreds, and burned to fine ash.
June 19th, 2009 at 11:29 am
I haven’t got the time to read the briefs, but I do have trouble thinking of a constitutional provision that would logically extend to a substantive right to DNA testing.
The real villain here is Alaska. (And any other state that won’t let people have exculpatory DNA testing.)
June 19th, 2009 at 11:31 am
After all this time wrongfully imprisoned, he’s too much of a risk to take out vengeance and rape somebody.
To gitmo with him!
June 19th, 2009 at 11:32 am
Let me add my condemnation of this, it goes against every sense of justice there is. As mentioned above though, the best way to overcome this is pressure at the local level.
June 19th, 2009 at 11:34 am
“The general hostility of most people in the law enforcement and prosecutorial universe to exonerating evidence is a little bit hard to understand.”
Only to people who watch too much CSI. When someone is arrested, it’s because cops and prosecutors are convinced they’re guilty of a crime. They don’t suspect it. They don’t think it. They’re sure of it. But it’s not all that common to have absolute, uncontrovertible evidence that Suspect X and only Suspect X is the person who committed crime Y, even in cases where it’s a virtual certainty that Suspect X is guilty. So, unless exonerating evidence is absolutely and uncontrovertible exonerating, their inclination is to view it as simply something that weakens their case and needs to be squashed.
I briefly glanced at the decision and it appears the argument that prevailed in this case was that convicted criminals do not have a right to DNA testing unless they can produce a reasonable claim to having been wrongly convicted. It doesn’t appear that the guy in this case does have such a claim. The victim identified him, as did another man convicted in the case and he confessed to it when seeking parole.
This decision is certainly a questionable one and I’m not sure I support it, but it’s not exactly the authoritarian thuggishness it’s being characterized as.
Mike
June 19th, 2009 at 11:36 am
N2,
You’ve gotten so wrapped around the axle of “activist judges” that you’re not thinking clearly. There’s no new constitiutional right at stake here–and what’s with the scare quotes on that phrase? You disdain the notion of constitutional rights? Or perhaps you disdain only the 9th Amendment, which asserts that the rights of the people should be interpreted broadly, and the rights of the state narrowly?
In any event, a person accused of a crime by the state has the right to question the witnesses and evidence presented against him. In the time between this man’s conviction and the present, a new technology has become available for examining the evidence that has been used to forever stain his good name. If you genuinely belive in a fallible government that must be carefully watched and closely constrained, in individual rights as the foundation stone of our civilization…in all that stuff conservatives _claim_ to believe…how can you be anything but outraged by this decision? The Supreme Court crosses its arms and says, “Sorry, not my department!” and lets a rape conviction stand on a tecnhical quibble, and that suits you just fine, because, by God, we can’t let a convicted man examine the evidence used to convict him?
And, as Matt pointed out, where’s that vaunted deference to the Legislature and the laws when it comes time to obliterate laws passed by Congress on age discrimination?
Power. That’s all so-called conservative jurisprudence is about. Power: advancing it, protecting it, deferring to it.
June 19th, 2009 at 11:38 am
It seems the simple solution is for the governor of Alaska to direct that the DNA test be performed.
June 19th, 2009 at 11:40 am
I must be missing something because if this is true, then all five justices who refused to allow this man to prove his innocence must be impeached, convicted, and thrown out on their ass.
June 19th, 2009 at 11:42 am
I do have trouble thinking of a constitutional provision that would logically extend to a substantive right to DNA testing.
The 4 dissenting Justices, and the 3 judges of the 9th Circuit, and the district judge in Alaska, apparently do not have your superior clarity of constitutional understanding — or your appalling lack of imagination, depending on your point of view.
It’s called deprivation of liberty without due process of law, idiot. 14th Amendment? Maybe you’ve heard of it.
June 19th, 2009 at 11:45 am
As for the ability of federal courts to address this issue, it actually is a pretty straightforward example of a Due Process case–and not a “subtantive due process” case, but “procedural due process”. Of course people can disagree about what process is due, but you have to argue that position on the merits, not on the basis of a lack of jurisdiction.
June 19th, 2009 at 11:45 am
“I agree not allowing the DNA testing is retarded and unjust, but the solution is to CHANGE THE LAW; the solution is not to have the court find a “constitutional right” to DNA testing… So why are you mostly railing against the court, instead of elected officials?”
For one thing, this is a matter of friction between state laws, and rights in the US Constitution that have been incorporated to state law by the US Supreme Court. So this is EXACTLY the sort of case where the federal courts should intervene. Railing against the elected officials is all well and good, but when a handful of backward states want to keep innocent people locked in jail, it’s more than a little perverse to claim that the states have a right to do this, and the federal courts don’t have the authority to intervene on the behalf of the wrongly imprisoned.
For another thing, it’s the worst of right-wing claptrap to claim that this case hinges on finding a heretofore unsuspected ‘constitutional right’ to DNA testing in the Constitution. This case hinges on the well-established constitutional right to not be deprived of your freedom without the due process of the law, the boneheadedly obvious point that a state which conceals potentially exculpatory evidence is violating that protection, and the straightforward conclusion that the due process of law does not entail “preventing the imprisoned from uncovering exculpatory evidence that the jury did not have access to.”
This is why we have human beings judge individual cases, instead of algorithms that parse the text of the Constitution as literally as possible. This is why ‘empathy’ is not just a friggin’ punch line.
June 19th, 2009 at 11:50 am
I also would note that in my experience, far from all law enforcement professionals share this mindset
Well, the organizations representing them, Fraternal Order of Police or whatever, seem to be very much of this mindset and that’s what really matters.
Just as with the AMA, AARP, NRA, GLAAD, AIPAC, its reasonable to assume that the power-brokers for a group represent the “real” views of the group on issues of major importance.
June 19th, 2009 at 11:54 am
The difficult thing to understand about the attitude of those law enforcement officials or politicians opposed to this type of access is that allowing an innocent person to remain in jail means letting the guilty person go free. Even if these assholes (I’m looking at you, Sarah Palin) don’t care about the former, you’d think they’d at least pay lip service to the latter.
June 19th, 2009 at 11:59 am
It’s called deprivation of liberty without due process of law, idiot. 14th Amendment? Maybe you’ve heard of it.
Ah, yes. This begs the question of whether one is “due” the process of DNA testing.
Look, I think if somebody is going to be killed or locked up for a long time, and the crime is such that it can be proven that the person didn’t do it by DNA, the state should do the DNA test. There are other examples of things I think a state should do that are not necessarily enforceable as constitutional entitlements.
June 19th, 2009 at 12:00 pm
Perhaps outrageous decisions like this and Kelo are the court’s backhanded way of restoring federalism. They can’t easily dial back the broad interpretation of the commerce clause, etc, but by deciding against common sense they may spur state legislatures to action.
June 19th, 2009 at 12:01 pm
Re: I haven’t got the time to read the briefs, but I do have trouble thinking of a constitutional provision that would logically extend to a substantive right to DNA testing.
Diamond Joe,
While I’m not a big fan of the US Constitution, it would seem that he has a right to DNA testing under the Equal Protection clause of the 14th Amendment. A person accused of rape today would have his DNA tested as a matter of course, and this can be seen as a right that pertains to suspects today. Hence the same right should be extended to all people suspected of a crime, no? Otherwise people accused of crimes in the past are not being given the same degree of due process as the ones accused of crimes today.
June 19th, 2009 at 12:08 pm
Ah, yes. This begs the question of whether one is “due” the process of DNA testing.
No. The question is whether the prisoner has a right of access to the evidence or whether the state may bar him from that access. The issue was not whether the state is required to provide the DNA testing itself, or whether the state had to pay for it. Access to relevant evidence that might prove one’s innocence seems to me about as basic an element of due process as one could imagine.
June 19th, 2009 at 12:12 pm
By the way, on the subject of “conservative” judges, I think it is worth noting that the dissent quotes extensively from Michael Luttig’s Harvey v. Horan opinion. To review some background, Luttig was long regarded as one of the top “conservative” judges in the country and an obvious leading contender for the Supreme Court under the Bush Administration. And Luttig was certainly “conservative” overall on criminal and defense issues, but in a few cases (Padilla, Hamdi, and lesser-known cases like Harvey and Robles v. Prince George’s County), Luttig showed some inclination to impose some constitutional limits on national defense and police actions.
So Luttig was passed over in favor of Roberts and Alito, and Luttig resigned as a federal judge to become General Counsel of Boeing. And again, I don’t want to make Luttig out as some progressive hero–he was actually a very conservative judge that still wasn’t authoritatian enough for the Bush Administration.
June 19th, 2009 at 12:12 pm
I read somewhere that Osborne had the right, during his trial, to have a precise DNA test performed by his defense team, and that he waived that right. Can anyone confirm or deny that? Because if he did intentionally a precise test during trial, as a tactical decision to not introduce further evidence of his guilt (the state-performed test matched his DNA, but would also have matched 15% of people with his ethnic background), then I have a hard time believing that he should have a constitutional right to then demand precise testing after he’s been convicted.
June 19th, 2009 at 12:13 pm
Sorry, that should read “did intentionally avoid a precise test…”
June 19th, 2009 at 12:16 pm
Roberts of course is doing more to undermine (faith in) the criminal justice system than reversing any judgement could. It strongly reminds me of the infamous reasoning Lord Denning gave in his dismissal of the Birmingha 6 appeal.
This kind of thing really attacks the foundations of the legal system, more potently than any other single action! It is simply corrupt.
June 19th, 2009 at 12:16 pm
Just as with the AMA, AARP, NRA, GLAAD, AIPAC, its reasonable to assume that the power-brokers for a group represent the “real” views of the group on issues of major importance.
Actually, I think that is rarely if ever a reasonable assumption. It is way too easy for the leadership of such groups to be captured by a small minority of people with a particularly strong interest in a handful of issues.
June 19th, 2009 at 12:16 pm
I agree with Max. Impeach and remove Roberts. If that doesn’t fix things, impeach and remove the other 4.
If we always depended on the state governments to do the right thing, Obama would be picking cotton in a field somewhere with whip marks on his back.
The Supreme Court can suck my cock.
June 19th, 2009 at 12:22 pm
I suggest you read the opinions before commenting. From Scotusblog:
The ruling does not bar an accused individual, not yet convicted, of obtaining such evidence to check it for DNA. In fact, the Court in no way disturbed the basic constitutional requirement, under the 1963 decision in Brady v. Maryland, that prosecutors must turn over to the defense — before trial — any evidence they have that might help the defense contest the criminal charge. Presumably, the Brady right includes some right of access (before conviction) to genetic evidence held by the prosecution, to test it for DNA.
Moreover, the decision apparently did not bar even a convicted individual from seeking access to such evidence, provided that the attempt to obtain it is made in pursuing a habeas challenge in federal court to a conviction. The Court majority conceded that there is some right of “discovery” of favorable evidence in a habeas proceeding, if “good cause” can be shown for success. (A habeas case, of course, can only be pursued in federal court if the individual’s challenge has been attempted first, in state court, and failed there.)
That leaves the opinion focused on a convicted individual’s claim, in a civil rights lawsuit pursued after conviction, to what the Chief Justice called “a freestanding and far-reaching constitutional right of access to this new type of evidence.” Six members of the Court were unwilling to establish such a right (including Justice David H. Souter, who dissented from the ruling on a separate question).
June 19th, 2009 at 12:23 pm
I read somewhere that Osborne had the right, during his trial, to have a precise DNA test performed by his defense team, and that he waived that right. Can anyone confirm or deny that?
This issue is discussed extensively in Justice Stevens’s dissenting Supreme Court opinion, if you are interested. But to summarize, Osborne wants to perform two new forms of DNA testing that were not in use at the time of his trial. Accordingly, it wasn’t possible for him to waive any right he might have to perform such tests.
June 19th, 2009 at 12:26 pm
The question is whether the prisoner has a right of access to the evidence or whether the state may bar him from that access.
This isn’t a case, is it, where the guy wanted access to evidence at trial and was denied it?
June 19th, 2009 at 12:27 pm
Souter only said he believed it unnecessary to reach the question of whether the due process clause, standing alone, required such access, because to him it was sufficient that Alaska had provided for postconviction procedures and (as Justice Stevens held) the due process clause required such procedures to include access to the evidence. It is incorrect to say that Souter is “unwilling to establish such a right” — he didn’t reach the question.
June 19th, 2009 at 12:34 pm
Aren’t you being disingenuous here. The purpose of the system is to punish the guilty and deter crime. But the incentives for DAs and cops are to rack up the numbers of convictions, to get reelected (by racking up the numbers of convictions), and to not be embarrassed by having previous errors exposed.
Unless there is an incentive to exonerate the innocent (or a strong disincentive to convict the innocent), why should an individual prosecutor or cop lift a finger to do so? Unfortunately, “because it is the right thing to do” is usually not a strong enough reason.
June 19th, 2009 at 12:39 pm
[...] Matthew Yglesias Obviously, the purpose of the established system of criminal justice is to use punishment of the [...]
June 19th, 2009 at 12:42 pm
Alaska had provided for postconviction procedures and (as Justice Stevens held) the due process clause required such procedures to include access to the evidence.
Well, that certainly makes me wish I had the time to read the whole thing. That makes the whole decision significantly more controversial.
June 19th, 2009 at 12:44 pm
Re: If we always depended on the state governments to do the right thing, Obama would be picking cotton in a field somewhere with whip marks on his back.
Nonsense, Don Williams. Obama’s family at the time lived in Kenya, and were never slaves.
June 19th, 2009 at 12:49 pm
Sooner or later, Roberts will hear a case in which Barack Obama, black, youngish and liberal, represents “the existing power relationships in society” and Roberts’ head will explode.
June 19th, 2009 at 12:51 pm
Cops and D.A.’s are racking up scalps like never before in the history of world. Their belts are overflowing. They are filling prisons so fast the whole penal system is about to explode.
And 5 hyper-activist judges decide to make thing easier?
What does it take to start impeachment proceedings? Can’t one Congressman get the ball rolling? Make a simple announcement “I have decided to look into the possibility of commencing impeachment proceedings against the noxious and notorious Gang of Five.”
June 19th, 2009 at 12:54 pm
This isn’t a case, is it, where the guy wanted access to evidence at trial and was denied it?
No, his request is post-conviction. But I think Justice Stevens correctly reasons that conviction does not wipe out the right to due process.
By the way, the difference between Justice Stevens and Justice Souter (discussed a bit by some other posters above) is basically whether it is necessary to first conclude there is a due process right to post-conviction relief, or whether it is sufficient that Alaska already grants a right to post-conviction relief. I tend to think Justice Souter is right that the Court did not need to answer that underlying due process question in this case, but I also think Justice Stevens gets the right result on that question (having asked it).
June 19th, 2009 at 1:01 pm
MikeF:
“[O]sborne had the right, during his trial, to have a precise DNA test performed by his defense team, and that he waived that right…[it] would also have matched 15% of people with his ethnic background…I have a hard time believing that he should have a constitutional right to then demand precise testing after he’s been convicted.”
I think you’re a bit off on the specifics, but I have no problem with this at all. Presumably, Osborne knows whether he is actually guilty of the rape or not. You choose to believe that he is (”a tactical decision not to introduce futher evidence of his guilt”), but suppose, just for a moment, that the man is innocent. The DNA test might decisively clear him of the charge, but also has a non-trivial 1 in 7 chance of wrongly implicating him.
Those are just about the odds of Russian Roulette, which no one thinks of as a very smart bet. It would be perfectly rational for Osborne to look at the evidence against him and think he would prevail–especially if he knows himself to be innocent of the crime and is inclined to believe in the justice system. Why take the terrible chance of playing Russian Roulette and having a false positive tilt the case against you? You make it sound like he was some kind of sharp out to fleece the good people of Alaska, when he was doing nothing more or less than you and I would do if accused of a crime–building the best case he could.
Once he was convicted, _of course_ the situation is different. What has he got to lose? Even a false positive is no real menace at this point.
What is baffling and infuriating to me is that the State of Alaska, the United States Supreme Court, and so many people here on this thread today would just prefer not to know if their justice system miscarried in the most horrible way. That’s the thing I have a tough time working out.
June 19th, 2009 at 1:16 pm
MBunge mentioned: he confessed to it when seeking parole
I don’t know about any of the other evidence, but I’m pretty sure that this kind of confession has absolutely zero evidential value. You’re much less likely to get parole if you protest your innocence, so “confessions” to the parole board are very effectively coerced.
June 19th, 2009 at 1:28 pm
Craig, I think you misread my post. The state had already performed the broad, matches-15%-including-Osborne test before he went to trial. At the time of the trial, other tests existed that could have give a much more precise result (i.e. cleared him if he was innocent), but Osborne and his defense team decided not to pursue a more definitive test; that was the tactical decision.
As I understand it, Osborne now wants to re-test the material using methods that weren’t available during the trial, and the dissenting justices agree that’s reasonable. The majority justices either think that post-conviction DNA testing should be left to state legislatures / Congress (because the presumption should be that after a fair trial, due process has been satisfied and so there’s no constitutional problem with Alaskan law), or alternately that since Osborne refused to pursue fairly precise DNA testing during the trial, he has no right to demand slightly-more-precise DNA testing now.
June 19th, 2009 at 1:52 pm
I did misunderstand your post, and your clarification comports better with the case as I understand it. And I still stand with great vigor on the side of the dissenters. It seems to me that substantially new methods for interrogating the evidence must be viewed in much the same manner as substantially new evidence that comes to light after a trial. If another person, after Osborne’s conviction, had confessed to the crime and produced a videotape of him committing it himself, no reasonable person would say, “Due process was satisifed at the criminal trial based on the evidence available. This case is closed.” We don’t have a videotape, but we do have new techniques, and my argument is that new techniques are essentially new evidence.
A criminal defendant has no real obligation under our system except to win his case. But the same can not be said of the State, which represents all people, including the accused. The State has a moral–and, indeed, legal–obligation to pursue and discover the truth: to prosecute the guilty, to avoid prosecuting the innocent, and to make what amends are possible to an innocent person wrongly pursued or punished. The Supreme Court is meant to be the ultimate backstop to our rights when they are abused and disregarded by the State, and I believe they have today utterly failed in their duty.
June 19th, 2009 at 1:55 pm
The predominant thinking of Alaska in this case seems to be that the punishment of the innocent works as a close substitute for the punishment of the guilty
Exactly. If there is a crime, and you lock someone up for it, then you’re tough on crime and everyone can sleep easier knowing you’re keeping them safe. Now when someone you’ve locked up is exonerated, well, that’s just embarrassing.
June 19th, 2009 at 1:56 pm
In most jurisdictions, discovery of new evidence that was not available to the defense is considered grounds for an appeal. If a state’s due process allows such, and the prisoner is denied it, he can appeal to the supreme court because the Constitution protects a defendant’s right to due process.
Unfortunately, I believe that samples with DNA that were available at trial before DNA testing existed are not considered new evidence by some jurisdictions. If the defendant wanted DNA evidence, it was incumbent upon him to invent the testing procedure and hone it to the level that would be acceptable to the court. Defendant’s are assumed to have freely chosen not to engage in the years of difficult and expensive research.
June 19th, 2009 at 1:58 pm
If I’m not mistaken, I believe Scalia has a dissenting opinion a few years back in which he goes a step further. He opined that proof of innocence is not grounds for appeal. So, for Scalia this case was trivial. Even if the DNA test was done, and it exonerated the guy, he should still stay in jail.
June 19th, 2009 at 2:01 pm
Max424
“I must be missing something because if this is true, then all five justices who refused to allow this man to prove his innocence must be impeached, convicted, and thrown out on their ass.”
I’d then throw them in prison. I’m sure a little ‘enhanced interrogation’ would persuade them to confess.
June 19th, 2009 at 2:11 pm
sorry to disappoint the apologists here, but yes, this is a ‘conservative’ court, and a ‘conservative’ decision, as we define the term now. it doesn’t mean ‘to conserve’, it is the term we use to represent the hapless Republican party and their largely discredited “philosophy” which is pretty much just a random collection of beliefs that justice is bad, brutality is good, “freedom” is good if we can force it on others, but bad if we exercise it ourselves. and this is what Roberts believes, it’s what he was installed to do, and he’s going to spend his life doing it unless we find a way to impeach his dangerous ass.
this isn’t just a bad decision though, it is flat-out disgusting. there should be an immediate review of ALL crimes for which there is new DNA evidence which wasn’t used at trial. this should go without saying! now we’ve got a 5-4 ‘Dred Scot’ like decision that Americans will be experiencing fallout from for generations to come. thanks, George Bush and weak, spineless Democrats, and thuggish, authoritarian “conservatives”. thanks a lot.
June 19th, 2009 at 2:13 pm
I don’t think this is true anymore. In another case yesterday, Yeager v. US, Roberts sided with the majority in deciding that a prosecution was barred by double jeopardy. However, the defendant was an Enron exec accused of securities fraud and insider trading, so I guess it was something of a conflict of interests for Roberts.
June 19th, 2009 at 2:19 pm
“La loi, dans un grand souci d’égalité, interdit aux riches comme aux pauvres de coucher sous les ponts, de mendier dans les rues et de voler du pain.” -Anatole France
June 19th, 2009 at 2:20 pm
Matt Y:
The general hostility of most people in the law enforcement and prosecutorial universe to exonerating evidence is a little bit hard to understand.
It’s not hard to understand at all. Would you like people going back to revisit your professional mistakes (if not disasters) that will go straight front page of a newspaper once it’s uncovered? Especially when it concerns an issue of life and death at the worse or ruining someone’s life in the least?
Some prosecutors are interested in justice even to the point of their own detriment like they should be. But unfortunately their are more out there who are more interested in padding their own records with convictions.
June 19th, 2009 at 2:28 pm
That is actually how criminal justice has worked throughout most of history. When I grew up in Philly, we had a police chief (later he became Mayor Frank Rizzo) who frequently boasted that there were no unsolved murders on his watch as police chief. That was BS of course. My brother was once rounded up in one of the police guilt-assigning sessions for a murder in my neighborhood. They grabbed about 100 kids, so the odds were in his favor they’d pin it on someone less savory, but whether they got the kid who really did it was pretty much a crapshoot.
They started slowing down on the guilt-asigning technique when the got caught in the Robert(Reds) Wilkinson case.
June 19th, 2009 at 2:38 pm
sorry to disappoint the apologists here, but yes, this is a ‘conservative’ court, and a ‘conservative’ decision, as we define the term now. it doesn’t mean ‘to conserve’, it is the term we use to represent the hapless Republican party
Who is this “we”?
Trust me, I understand that it serves the interests of some of the partisans on both sides to pretend the Republicans have exclusive rights to the term “conservative”. But in the real world, there are many people who call themselves “conservatives” and who aren’t members of the Republican Party (indeed, some are even Democrats). And I don’t feel much temptation to let members of either party tell those people that they are wrong to describe themselves in that way just because that helps cement the existing two-party system.
June 19th, 2009 at 2:46 pm
“However, the defendant was an Enron exec accused of securities fraud and insider trading, so I guess it was something of a conflict of interests for Roberts.”
Who to side with: the crooked money-man or the overweening prosecutors? Imagine the agonies of John Roberts, tossing and turning in his sweat-soaked bed, wishing he could find a way to rule in favor of both of them.
Or maybe not. The very point of government is to advance the intersts of the money-men, so, when it becomes destructive of those ends, it must be corrected.
June 19th, 2009 at 2:56 pm
the best way to overcome this is pressure at the local level.
Anyone with the least bit of experience following state politics knows that state legislators are even more authoritarian than you see on the federal level.
It’s kind of hard to tell why Alaska bothered to bring this to the supreme court, though. Roberts never would have had a chance to make this ridiculous ruling if it weren’t for the Alaskan government’s insistence that they fight the push for DNA testing.
June 19th, 2009 at 3:51 pm
“It seems to me that substantially new methods for interrogating the evidence must be viewed in much the same manner as substantially new evidence that comes to light after a trial.”
Well put, Craig, and worthy of repeating.
June 19th, 2009 at 3:51 pm
Do wrongly convicted prisoners have another option now that this has been shot down? Who else can they appeal to? This logic makes no sense. Let’s spend more money keeping him in jail instead of finding out if he is innocent. How could it possibly be harmful to prove someone’s innocence? This is making the courts look waaaaay worse than if they had found out Osborne was innocent after 14 years. At least they would have pursued actual justice.
June 19th, 2009 at 4:15 pm
This is exactly what Obama cited when he voted against Roberts’ confirmation.
http://obamaspeeches.com/031-Confirmation-of-Judge-John-Roberts-Obama-Speech.htm
June 19th, 2009 at 4:36 pm
Read the decision, guys. The primary thrust of Roberts’ argument is that there is no need to create a Constitutional argument for access to DNA when Osborne has not exhausted state-level remedies. I don’t like the result in this case, but I agree with the reasoning. How many times have we told an ranting person, “hey, don’t make a Federal case out of it?”
Roberts also points out that a clear majority of states have already enacted laws regarding access to DNA and DNA testing in criminal matters. Alaska has not, but Osborne’s request could have been argued in any number of contexts at the State level. Osborne tried to skip over the potential remedies provided by Alaska law and go straight to a Federal decision. His cause may be just, but he’s going about it the wrong way.
June 19th, 2009 at 4:36 pm
hmm… did any of you read the case? looks like the guy was already convicted based on a bunch of DNA evidence that narrowed down the odds significantly — in other words, the guy looks pretty darned GUILTY already. this is a technical move on the evidence post conviction & was addressed that way in the decision.
read it.
June 19th, 2009 at 4:56 pm
Well, actually it is in the constitution. Innocent until proven guilty went out the window a long time ago. Due Process, what is that?
June 19th, 2009 at 6:48 pm
Sometimes it seems to be forgotten that the object of the criminal justice system once a crime has been committed, no matter how horrible, is not just to see that someone is punished, but to see that the guilty person is punished. The ends of justice are never satisfied by punishing someone who is not guilty. The safeguards in the Bill of Rights were intended to make it hard to put even a guilty person in prison. Those amendments, of course, could not imagine the kinds of evidence that are available now, scientific and electronic wizardry, but the intent has to be the same; only the guilty go to prison and only after the state has proven their case. Shame on the SCOTUS 5 who have forgotten that cornerstone rule of law.
June 19th, 2009 at 6:54 pm
People in prison are bad people, and should stay there. Police and prosecutors are good people who put them there.
Why are all you people taking the side of bad people against good people? Even if this guy were innocent of this crime, I’m sure he did something bad, otherwise the police wouldn’t have even suspected him—guided as they are by the Holy Spirit—and so he deserves to stay in prison, and finding that he were in fact innocent would get him out and make the good people look…bad.
You must be bad people.
June 19th, 2009 at 8:02 pm
I’m genuinely shocked by the injustice of this decision, and am particuarly stunned at the coldly nit-picky inhumanity of Chief Justice Roberts. Let’s all hope that President Obama gets the chance to nominate at least three new Justices.
June 19th, 2009 at 8:16 pm
It’s telling to me that not only has Yglesias not read the decision; he doesn’t even have the decency to pretend he read the decision. He simply reasons backward from the result he would have preferred, to the conclusion that those who do not use the law to reach that result must be evil.
Think for a moment.
It’s emotionally comforting to posit a Manichean worldview, in which the forces of progressivism are lined up against ineluctably evil individuals who simply want innocent individuals to die. For those on the far left, that feeling is an orgasm-substitute, so perhaps it’s not compassionate of me to attempt to deprive you all of it.
But is it not possible – just possible – that the 5 Supreme Court Justices involved honestly thought that this was the most reasonable construction of pertinent constitutional provisions, and therefor thought the holding in this case was required by their oaths to uphold the Constitution?
Just contemplate that possibility, even if such contemplation may deprive you of your auto-erotic imitation of pleasure.
June 19th, 2009 at 8:25 pm
F****ng appalling.
June 19th, 2009 at 8:46 pm
I’m reading the decision now, here. Here’s the 1st paragraph of Kennedy’s concurrence on page 25, which introduces some facts and issues in this case that some of you may not have known about:
______________________________
Respondent was convicted for a brutal sexual assault. At trial, the defense declined to have DNA testing done ona 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.
June 19th, 2009 at 9:36 pm
It’s a testament to how utterly worthless this blog has become when the the comments on Mcardle’s blog figured this out in an hour or so and the people here are still moaning about it.
June 19th, 2009 at 9:38 pm
I don’t know how you people even live with yourselves. It seems that, if I if were many of you, I’d stare at myself every day with horror of knowing I’d never thought an original thought in my life. “My ideological opponents are evil?” – easy. “Racism underlies every racially disparate decision?” – easy. “Conservatives are dumb?” – easy. How sorrowful your lives must be.
First of all, there is the idea of a due process of law for the individual; but there is a necessary balancing act, because the majority and the injured individual also deserves a right of due process of their own, to see the required justice carried out in a timely fashion! To act otherwise would be tantamount to the “crooked cord of discretion”, as articulated so well by Edmund Burke so long ago.
You don’t like the decision? Tough shit, it’s a conservative court. That’s what happens when liberals inappropriately promote the doctrine of “substantive due process”, elevated by the jurisprudence of the Warren Court, which lifts itself from a bare textual reading of the Constitution to creating the absurd position where the Courts expropriate the role of determining the appropriate threshold of exhaustion, not the legislature as you might have preferred in this case. As always, leftists refuse to properly regard the sobering consequences of their actions as they tumble out of their control.
June 19th, 2009 at 9:45 pm
I’m sympathetic to this viewpoint, but don’t we have obvious recourse against the Roberts Court’s decisions? The laws can be changed… and clearly should be.
Or maybe it would just be a lot easier to let the man submit to a DNA test.
June 19th, 2009 at 10:10 pm
Sickening, smugly self-righteous, and stupid.
June 19th, 2009 at 10:25 pm
Wesmorgan and Brian,
I have read the opinions, thank you very much, and you are both off base. You seem to want to say that Roberts et. al. simply reprimanded Osborne for jumping too quickly to the Federal courts, before the State of Alaska had adequate opportunity to redress his grievances. This is simply not so.
If they had wished to send him back to the state courts with an invitation to return to Federal court in the fullness of time, presumably they could have done so. What they did is rule on his Federal claim. The concurring opinion is so much spit in the ocean, as is usually the case with concurrences.
June 20th, 2009 at 12:31 am
After reading the decision, instead of just a couple of choice quotes, the matter doesn’t seem so cut and dried. It seems that Roberts’ concerns have to do with the fact that this is a state matter, and while Alaska has not kept up with the times on legislating rules for handling DNA evidence post-conviction, 46 states have, and it would not be a good idea for the Supreme Court to take what should be a state-by-state matter, make it a federal matter, and start devising and imposing rules for states to follow.
There are a number of conservatives who believe the federal government is too big and has snaked its tendrils too far into the affairs of the states. I can see that kind of sensibility in this decision.
Furthermore, it looks like one of his arguments was that he was being denied due process, and the court’s response was that such a claims could not be substantiated since he had not exercised all his options at the state level first.
Yes, that the state won’t let him test the DNA seems patently unfair. But it seems the court is reluctant to make a sweeping, far-reaching decision that could turn a lot of working systems on their ears just to try to adjust one clunky system.
June 20th, 2009 at 2:18 am
First, I did in fact read the opinions.
Second, there is no general doctrine that someone has to exhaust every possible state law remedy before bringing a 1983 action. See Patsy v. Board of Regents of State of Florida, 457 U.S. 496 (1982). Now there was some dispute about whether Osborne’s action was properly brought under 1983 as opposed to as a habeas petition, but the Court assumed arguendo that his 1983 action was proper, and so it should have been bound to conclude he was not required to exhaust his state remedies. Rather, the question should have been whether Alaska properly protected his rights in the actual proceedings below, and as the dissenters rightly pointed out, the Alaskan courts clearly erred in this respect. The fact that in some other possible proceedings the Alaskan courts may or may not have repeated those errors is really beside the point in a 1983 action.
Third, the fact that many states have addressed this issue legislatively really should not cut against Osborne’s claim. Of course if there is no applicable constitutional right, then there is no applicable constitutional right. But if you assume that there is an applicable constitutional right, then the fact that some, or even many, states have chosen to protect that right legislatively obviously should not be used as an excuse to deny that constitutional right to people not fortunate enough to live in one of those states.
June 20th, 2009 at 8:26 am
[...] Conservative Justices’ Strange Enthusiasm for the Punishment of the Innocent — A blog post about a recent Supreme Court decision forbidding a convicted felon from paying for his own DNA test to exonerate himself. The Roberts court found that alowing Osburne to prove his potential innocence risks “unnecessarily overthrowing the established system of criminal justice.” Compassionate conservativism my ass. Can someone explain to me why this isn’t pure batshit? [...]
June 20th, 2009 at 10:38 am
I hate to be the one to break this to you, Matt, but the position taken by the conservative justices happens to be the exact position argued by the Obama Administration on this case.
June 20th, 2009 at 10:54 am
I’m sympathetic to this viewpoint, but don’t we have obvious recourse against the Roberts Court’s decisions? The laws can be changed… and clearly should be.
Or maybe it would just be a lot easier to let the man submit to a DNA test.
Which is what changing the state laws would accomplish.
June 20th, 2009 at 10:58 am
I fell asleep last night before completing the opinions, but I certainly will do so now in light of the interesting analysis above by Craig and DTM. Maybe the majority got it wrong. What I objected to before was the simplistic and self-righteous post by Yglesias, and not the rational disagreement expressed later on in the comments. In light of that, my own emotional comment earlier seems kind of…misplaced.
June 20th, 2009 at 11:11 am
I believe that Congress is empowered by the US Constitution to setup the rules of the courts. The SCOTUS merely said that the Congress did they job badly but we aren’t supposed to change that .. the Congress is.
This is the same problem as the Lilly Ledbetter case. The Congress wrote the law badly and it’s up to the Congress to fix it, which they did badly with the Lilly Ledbetter Fair Pay Act of 2009.
Bad law begot .. “bad” decision .. begot more bad law.
With the haste that Congress is making new law, expect more of this .. not less.
June 20th, 2009 at 11:32 am
a constitutional provision that would logically extend to a substantive right to DNA testing
The right to due process?
June 20th, 2009 at 12:42 pm
[...] But that Matt, he’s so slick and charming he darn near took me in when he wrote about the Supreme Court’s recent ruling that denied an Alaska man the opportunity to obtain – at his own expense – a DNA test that might [...]
June 20th, 2009 at 1:05 pm
Think of how bad that police, prosecutors, judges and jurors would feel if they find out they jailed the wrong guys.
Who says these guys don’t have empathy.
June 20th, 2009 at 1:07 pm
[...] are, rightfully, infuriated by the decision, but have been notably incomplete in their critiques. Matt Yglesias describes the ruling as “Conservative Justices’ Strange Enthusiasm for the Punishment of the [...]
June 20th, 2009 at 1:41 pm
The problem comes down to technology always changing, so if you establish a constitutional right here, you will be saying that people who are convicted have a right to a retrial pretty much an infinite number of times as any new technology is introduced. The Supremes are just saying that this is something for state legislatures to set rules on, and not a constitutional issue.
June 20th, 2009 at 2:29 pm
Not nearly as intersting once you find out that barry was arguing for it.
So that would make Obama “brutal and inhumane” correct?
June 20th, 2009 at 3:02 pm
The conservative court did us all proud… hang’em high… “Guilty until proven innocent” Oopps, can’t do that…we don’t want’em found innocent after they’ve been duly convicted… hang’em high
This court probably would’ve ruled against finger printing if they had a chance…
June 20th, 2009 at 3:16 pm
First of all, Osborne was released on parole in 2007 for this rape; he was rearrested following an armed-invasion, for which he is now languishing in prison.
Second of all, he is almost surely guilty of this crime. From the Times:
Prosecutors had told the court that Osborne was not a good cause for those worried about the wrongly convicted. He was identified as the woman’s attacker not just by her but by an accomplice.
The accomplice (Jackson) was linked to the crime by his confession, a matching gun, a matching car, and possession of some personal articles of the victim. Jackson claimed Osborne was with him, others had seen Jackson and Osborne drive off together, Osborne had the right kind of axe handle used in the assault, and the victim sorta-kinda ID’ed Osborne.
The defense attorney passed on definitive DNA testing at the time because she figured it would only make a strong case airtight – Osborne was black and the victim was white, so she she was aiming for a “mistaken identity, cross-racial identification case, where the victim was in the dark and had bad eyesight.”
Could have worked. Didn’t. But I don’t think anyone is worried that a great injustice is being perpetrated here. As a public policy question, one wonders why Congress does not clear this up a the Federal level, and why four states have not passed laws.
June 20th, 2009 at 5:16 pm
There is this legal hurdle to pass …
June 20th, 2009 at 8:15 pm
There’s no such hurdle to pass. The court did not see fit to deny his plea because he had since been convicted of another crime, or because he did not exhaust all his options at the state level, or because he used the dinner fork for his salad, or for any other reason.
They denied his plea because they say you and I and everyone else in the United States have no Constitutional right to re-examine evidence the state uses against us when new technologies become available for evaluating that evidence. Whatever else they say or reference in the opinion, that is the part that matters–you have no right to clear your name when new technologies are developed.
But hey, this one guy in Alaska is a scumbag, right? So what does it matter?
June 21st, 2009 at 2:06 am
There is this legal hurdle to pass before he ever regains his fredom …
It really didn’t matter which way the SCOTUS held, this guy was going to be in jail either way. Now that is a legal hurdle.
June 21st, 2009 at 8:28 am
I’m sure you’re aware but in case you’re not:
http://justoneminute.typepad.com/main/2009/06/emotion-trumps-research-every-time.html
So my question is, did you know you were full of it or was this sincere ignorance based on ideology?
P.S. I love that you bolded the fact that this individual proclaims he is innocent. That really puts the cherry on top.
June 21st, 2009 at 9:19 am
There have been a lot of awful decisions in the criminal procedure context, but this isn’t one of them. I’d probably go with the dissenters because the cost to the state in allowing access to the DNA seems pretty minor and the rhetoric about the damage to the criminal justice system seems to be just rhetoric.
But this guy is a deeply evil man who has been repeatedly gaming the system.
When you make choices in a criminal trial, you have to live with them. Defendants don’t have to testify, for example, but they have to make that choice and don’t get a second shot doing it the other way later.
June 21st, 2009 at 5:13 pm
Neo,
There is a slightly larger point here than what happens to a single person who will be a convicted felon whatever the DNA evidence might or might not end up indicating. This is what I’ve tried to explain in my earlier comments. Do you understand that? Or are you so wrapped up in your caricatures of progressive and liberal thought that you think we’re actually crying ourselves to sleep about whether one guy with a home invasion conviction gets an earlier rape conviction overturned?
Well, either you get it or you don’t at this point. And if you don’t, I’m guessing you’re pretty comfortable in your belief that the State will never try to hang anything on you or someone you care about. Maybe you can live a long life and go to your grave trusting in the beneficence and infallibality of the the State. But that seems like a funny philosophy for a guy calling himself “Neo.”
June 21st, 2009 at 5:37 pm
[...] The NYT condemened the decision and the Justice Department’s support of Alaska. Yglesias chalks this one up to conservative sadism, and the best read is probably Greenwald who links to much of the above and then goes into the [...]
June 22nd, 2009 at 12:33 pm
[...] be considerably broader.” Glenn Greenwald points out that the decision has raised the ire of many liberal bloggers, and notes that it’s another example in which Obama’s Justice [...]
June 23rd, 2009 at 3:42 pm
I wonder how much of this decision comes out of the extreme suspicion so many on the religious right have toward science.
DNA is related to evolution, related to stem cells, related to contraceptives, related to abortion…gosh, how can you trust something like that.
DNA evidence is the best available and can be reliably and retroactively applied. It beats out eye witness reliability, polygraphs, jail house/accomplice witnesses saying anything about anyone to get a good deal from a D.A., confessions made regardless of guilt to avoid no hope draconian sentences, and finally an occasional rare case of police brutality. What could go wrong with a system like this?
June 23rd, 2009 at 4:49 pm
If it would ever occur to this peabrained moral cripple why nobody has any respect for the Extreme court any more, this is just one example of why. Roberts was born 60 years too late and in the wrong country; by the quality of his mind and lack of principles, he would have been a perfect fit o nHitlers People’s Court.
what a scumbag. He should be impeached for lying duringhis confirmation hearings.