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Supreme Court Grants Cert in Important DNA Case:
Adam Liptak reports:
  The Supreme Court agreed Monday to decide whether people convicted of crimes have a constitutional right to test DNA evidence that could prove their innocence.
  The case pits the value of finality in criminal cases against the possibility of proving an inmate's innocence long after trials and appeals are concluded.
  In April, the United States Court of Appeals for the Ninth Circuit, in San Francisco, ordered prosecutors in Alaska to turn over DNA evidence that had been used to convict William G. Osborne of kidnapping and raping a prostitute. The appeals court said that biological evidence — hairs and semen — could be subjected to more sophisticated DNA testing than had been used by the prosecution to implicate Mr. Osborne.
  Prosecutors in Alaska, in their brief urging the Supreme Court to hear the case, District Attorney's Office v. Osborne, No. 08-6, said the appeals court had "created from whole cloth" a constitutional right of post-conviction access to DNA evidence. The prosecutors added that the court had made a separate mistake in allowing a right of access to be pursued even if a conviction was not being challenged in a pending case.
  The Ninth Circuit opinion below is here, and it expressed the holding as follows:
  We . . . hold that Osborne's right to due process of law prohibits the State from denying him reasonable access to biological evidence for the purpose of further DNA testing, where that biological evidence was used to secure his conviction, the DNA testing is to be conducted using methods that were unavailable at the time of trial and are far more precise than the methods that were then available, such methods are capable of conclusively determining whether Osborne is the source of the genetic material, the testing can be conducted without cost or prejudice to the State, and the evidence is material to available forms of post- conviction relief.
  In so holding, however, we do not purport to set the standards by which all future cases must be judged. We are presented with a certain set of circumstances presenting a meritorious case for disclosure, and our analysis and holding are addressed to those circumstances only.
  This will be a very interesting case to watch. The successful cert petition is available here.
Viceroy:
It's odd that the brief isn't formatted with internal hyperlinks. This is a random comment (and I know all courts have their own formatting) but this makes pdf docs much easier to read.
11.4.2008 1:05am
Nathan_M (mail):
I have a question about the defence's decision not to submit the DNA sample to a more sophisticated analysis. Would the defence have been obliged to disclose the results of this test over to the prosecution if they were unfavourable? I know US criminal law isn't exactly friendly towards accused people, but that would seem strange, and difficult to implement. But aside from such an obligation, I can't understand what possible logic (aside from a desire to save money) would justify the defence's "reasonable strategic decision" not to conduct a more advanced DNA test before the original trial.
11.4.2008 1:07am
astrangerwithcandy (mail):
to reverse the usual call...

prof kerr, on the eve of "the most momentous election, ever" no one wants to read about the law! hysteria, non-sense and exaggeration on political topics must rule the day.
11.4.2008 1:09am
tsotha:
I'm sort of curious why the prosecutors are fighting this. I mean, if you had convicted an innocent man, wouldn't you want the conviction reversed? Is there some angle I'm not seeing where the guilty would benefit?
11.4.2008 1:20am
Dave N (mail):
I am guessing that the Supreme Court will reverse and state rather strongly that Heck v. Humphrey controls and that prisoners cannot use 1983 suits to find evidence of actual innocence for late use in 2254 litigation.

The 9th Circuit screwed the case up when it initially held Heck did not apply. The Heck issue will be dispositive of everything else.
11.4.2008 1:29am
Kazinski:
Nathan_M

I know US criminal law isn't exactly friendly towards accused people

That in the top ten of the most ridiculous statements I've ever heard. You can make a case that we're downright nasty to the convicted, but the deck is stacked heavily toward the accused in this country. Just a partial list our "not exactly friendly" protections of the accused:

Miranda
Right to an attorney
Choice or bench or jury trial
Exclusionary doctrine
Guilt proved beyond a reasonable doubt
Jury of peers
Discovery
No double jeopardy
Appeals process


While I'm pretty sure that the right to access to the evidence for DNA testing doesn't rises to the level of a constitutional right, I wouldn't have a problem with a legislative grant of that right, at least for felonies.
11.4.2008 1:37am
J. Aldridge:
I don't see a constitutional right to test DNA evidence, but certainly one would have a right under any post criminal procedure law that allows it.
11.4.2008 1:40am
Bill Poser (mail) (www):
Why is there a presumption that the prosecution gets to decide whether the test is done? Why is it the prosecution's evidence, rather than the court's, equally available to both sides?
11.4.2008 1:42am
OrinKerr:
Dave N: Probably right.
Kazinski: I have seen ten more ridiculous things posted in VC comment threads just today.
Stranger: Sorry! ;-)
11.4.2008 1:46am
Oren:

Why is there a presumption that the prosecution gets to decide whether the test is done? Why is it the prosecution's evidence, rather than the court's, equally available to both sides?

Adversarial justice has both perks and drawbacks...
11.4.2008 1:49am
Nathan_M (mail):
Kazinski - Sorry, I wasn't being clear. I only meant the US is "not friendly" for defendants in comparison to Canada, because that's the system I am familiar with.

I did not mean it as any more universally, because I am not familiar enough with the legal systems of any other countries to know how that comparison would go.
11.4.2008 2:00am
Nathan_M (mail):
And I should add, much of the reason Canada is more a more friendly places for defendants is because of rules we imported from you.
11.4.2008 2:02am
Bill Poser (mail) (www):

Adversarial justice has both perks and drawbacks...


Yes, but I don't see any incompatibility between an adversarial system and a rule in which, once evidence has been presented or is clearly relevant to a case, it comes under the authority of the court, not of the adversaries.
11.4.2008 2:06am
Dave N (mail):
I would note out of fairness that though I can be quite harsh of my assessment of the Ninth Circuit, the three judge panel at issue in this case (Alfred Goodwin, Melvin Brunetti, and William Fletcher) are not known as ideologues.

Goodwin and Brunetti are Republican appointees (Nixon and Reagan, respectively). Fletcher is a moderately liberal Clinton appointee, but well to the right of his mother, Betty Fletcher.

I still think the decision is wrong for the reasons set forth above. I just wanted readers to realize that the panel was not made up of 9th Circuit leftists.
11.4.2008 2:13am
Mike& (mail):
I'm sort of curious why the prosecutors are fighting this. I mean, if you had convicted an innocent man, wouldn't you want the conviction reversed? Is there some angle I'm not seeing where the guilty would benefit?

Great question. And something to keep in mind when prosecutors say, "My job is not to seek convictions, but to seek justice." Well then, test the DNA. Don't they want to know the truth?

I wonder if the Supreme Court will want to wipe the Youngblood off of its face?

In Arizona v. Youngblood, the Supreme Court held that the state had no duty to preserve evidence. Well.... As it turns out, Youngblood was actually innocent. And if the state of Arizona had preserved the evidence, Larry Youngblood would not have spent so many years in prison for a crime he most certainly did not commit. Way to go, SCOTUS. Not "creating rights out of whole cloth": 1. Innocent men in prison: 0. Awesomeness.

It's sort of funny (not really) that "law and order" conservatives will not hesitate to tell us that such-and-such right led to a guilty person escaping justice. They don't seem too bothered about non-rights causing innocent people to rot in prison, though. Isn't it a good thing, after all, for DNA to be tested to ensure that the people in prison are actually guilty?

I guess it's illegitimate for Courts to "create" rights that lead to innocent people being exonerated?
11.4.2008 2:18am
Mike& (mail):
Prosecutors refused to test the DNA in the case of Johnnie Earl Lindsey. Prosecutors are clearly out of control. The Supreme Court needs to step in.

Why do they not want to test DNA? Why are prosecutors so afraid of scientific evidence?
11.4.2008 2:22am
OrinKerr:
Dave N,

Do you really think of Willy Fletcher as a moderate? I think of him as extremely bright, but also pretty liberal.
11.4.2008 2:27am
OrinKerr:
Bill Psoer,

Courts don't want it. They don't have a place to put it, they don't have staff to save it, and they don't have any procedures for keeping it.
11.4.2008 2:29am
josh bornstein (mail) (www):
Orin,
Well, Willy Fletcher was described by Dave N. as "moderately liberal." You disagreed, and would instead categorize him as "pretty liberal." Is there really such a large gap between those 2 labels???
11.4.2008 2:45am
J. Aldridge:
Mike&said: "Why do they not want to test DNA? Why are prosecutors so afraid of scientific evidence?"

Ask Mike NiFong.
11.4.2008 2:46am
Dave N (mail):
Orin,

I actually described William Fletcher as "moderately liberal." I think he is to the left of center on legal issues but he is not an ideologue like Judges Reinhardt or Pregerson or even his fellow Clinton appointees Sidney Thomas and Richard Paez--and I do think he is less liberal (perhaps that is a better term than "more conservative") than his mother, Judge Betty Binns Fletcher.
11.4.2008 2:49am
OrinKerr:
Dave N,

That's helpful. It's been a few years since I have followed his work so closely, so perhaps my impression has been off. (I think he scores very highly on maters of judicial craft, I should add -- he's a very skillful judge.)

Josh,

Yes, there is. If I'm your waiter, and you ask me if a soup is spicy, there's a significant difference between me saying that the soup is "moderately spicy" and me saying that that the soup is "pretty spicy."
11.4.2008 3:08am
Bruce_M (mail) (www):
[Deleted by OK on civility grounds. Yikes, BruceM, that must have been one of the least civil comments I have ever read here in 5 years of blogging. (In partciular, the phrase "victim-fucking ass" seems to set a new low.) If you would like to comment, keep it civil: If you post any more uncivil comments, I will ban you from commenting.]
11.4.2008 3:29am
Bruce_M (mail) (www):
On another note, related to this case, I think it is a violation of equal protection and due process to allow ONLY the prosecution free access to the FBI crime lab, which is funded by taxpayer dollars. Defense attorneys are not permitted to submit evidence to the FBI crime lab for forensic testing. But state prosecutorial and law enforcement agencies can submit all the evidence they want, and have it tested for free. Sure, presumably they'll give the defendant Brady evidence, but nonetheless, as a defense attorney I should be able to submit my own evidence to the FBI crime lab - for free - just like the prosecutor can.
11.4.2008 3:32am
Malvolio:
I'm sort of curious why the prosecutors are fighting this. I mean, if you had convicted an innocent man, wouldn't you want the conviction reversed?
IANAL, let alone a prosecutor, but if I were a prosecutor, I wouldn't want a system where convicts (who after all have nothing to lose and all the time in the world) get to keep challenging and re-challenging the evidence against them. Sooner or later, a lab will slip up and that guy is gone.

But I'm not a prosecutor, and as a citizen, I would want any convict who can scrape up the cash for a retest to be allowed to perform it. Hmmm, maybe I'd require him to sign an affidavit to the effect that he is certain that the DNA is not his, with the understanding that the parole board does not look kindly on perjury.
11.4.2008 5:02am
Visitor Again:
In Arizona v. Youngblood, the Supreme Court held that the state had no duty to preserve evidence. Well.... As it turns out, Youngblood was actually innocent. And if the state of Arizona had preserved the evidence, Larry Youngblood would not have spent so many years in prison for a crime he most certainly did not commit. Way to go, SCOTUS. Not "creating rights out of whole cloth": 1. Innocent men in prison: 0. Awesomeness.

As that conservative icon Scalia, who joined the majority in Youngblood, would say, "Get over it."
11.4.2008 5:36am
Visitor Again:
My memory is that in one of the prosecutorial immunity cases, the Supreme Court stated that the Brady duty of disclosure exists as an ethical duty in post-conviction proceedings. I know that's so because I remember writing letters demanding compliance with the postconviction duty of disclosure of exculpatory evidence. But I'm not able to cite the case from memory and couldn't find it in a brief search.
11.4.2008 5:40am
PersonFromPorlock:
tsotha:

I'm sort of curious why the prosecutors are fighting this. I mean, if you had convicted an innocent man, wouldn't you want the conviction reversed?

I suspect that in law-speak, "innocent" and "guilty" mean simply "not convicted" and "convicted." They have nothing to do with whether someone actually did something (although a correlation is hoped for). Therefore you can't, by definition, 'convict an innocent man' and the question you ask doesn't arise.
11.4.2008 6:31am
Henri Le Compte (mail):
It seems to me that there is an obvious problem with the "right" to test and re-test evidence ad infinitum (depending on an endless series of improvements in testing methods)-- validity!

Well, storage and validity. DNA samples and biological specimens are not like rocks. DNA is an organic substrate and it decays/changes over time. Specimens have to be properly handled and stored for them to be valid in the future. With a "right" to future testing, this expensive and difficult set of procedures would have to be carried out on basically all physical evidence forever.

And what happens when, as will inevitably happen, samples get lost, corrupted, destroyed, etc.? Will convicted people then get to argue that they have been deprived of the exculpatory evidence that would have set them free? (Because the next round of super-improved DNA testing, or mitochondrial DNA testing, or god-knows-what testing would surely have reversed the abortion of justice that sent them to Sing-Sing.) And what sort of abominable system of justice would deprive "innocent" people of the evidence necessary to defend themselves?
11.4.2008 7:34am
BChurch (mail):
Long term storage would, for the most part, be a moot issue. The bulk of DNA requests are from people who were incarcerated 15-30 years ago, before the modern forms of STR testing were available. In those cases, either the State kept the evidence or destroyed it, sometimes a little of both.

Newer cases are relatively rare because police and prosecutors INSIST on running DNA tests when available and probative. In fact, using these tests ONE THIRD of primary rape suspects are cleared before charges are ever brought. (http://www.springerlink.com/content/g1406j166n268512/). For other violent felonies, the number is something like one out of four primary suspects cleared using DNA in investigations. If that alone doesn't scream for mandatory access to DNA results in older cases, I don't know what does.

It's absolutely unconscionable for prosecutors to refuse access to privately funded DNA testing in any case where the results could potentially be exculpatory. And their reasoning isn't always as practical as "setting an time wasting precedent." I've personally seen cases where the prosecutors' motives were nothing more than an aversion to admitting they personally made a mistake. There are cases where exclusion results come back conclusively proving the inmate was not a source of semen in a rape murder, and still prosecutors will fight the new trial motion. You've basically got to hope they agree to track the results through CODIS, or actually track down an alternate suspect yourself.
11.4.2008 7:58am
Rodger Lodger (mail):
This is a good teaching case on the difference between good or bad legislative policy and constitutional law.
11.4.2008 8:22am
titus32:
Dave N.: re Fletcher, I agree he's not extreme like Pregerson, Reinhardt, and B. Fletcher, but I'm not sure how helpful that comparison is, given that these three are arguably the three most liberal appellate judges in the U.S. Using those three, I suppose no other judge would be further left than "moderately liberal." I'm also not convinced the difference between him and Thomas and Paez is appreciable.

Re Goodwin, isn't he the author of the opinion holding that the pledge of allegiance is unconstitutional? I don't think that makes him an ideologue, but him signing on to a wayward opinion is not a surprise.
11.4.2008 9:45am
Adam J:
Henri Le Compte- After conviction, validity problems would probably cut against the convict, not the state. Also, evidence doesn't have to be stored forever, just the length of a person's prison term. And the state only pays to preserve evidence, the costs of the test are paid by the convict. Besides, your point is entirely moot here, this is about denial of access to evidence by the state, not the duty of the state to preserve evidence.
11.4.2008 9:55am
byomtov (mail):
This is insane. Of course the convict should have the right to test the DNA.

Bill Poser says:

I don't see any incompatibility between an adversarial system and a rule in which, once evidence has been presented or is clearly relevant to a case, it comes under the authority of the court, not of the adversaries.

To which OK responds:

Courts don't want it. They don't have a place to put it, they don't have staff to save it, and they don't have any procedures for keeping it.

This is no reponse at all. Let them get those things. It's important. Let's also note that there exist private companies in the business of storing, handling and analyzing DNA, including for forensic work. They have all the stuff that OK describes.

I know I'm going to have it patiently explained to me that not every desirable thing is in the Constitution. But due process is. Why shouldn't that include the right to examine DNA evidence? Because the framers never heard of DNA?

tsotha asks,

I'm sort of curious why the prosecutors are fighting this. I mean, if you had convicted an innocent man, wouldn't you want the conviction reversed?

Because they are human, and ambitious, and don't like looking bad, and want to run for higher office. Some of them, not all. But enough to be dangerous.
11.4.2008 10:17am
Anon02:
Prof. Kerr -

Could you elaborate on why you think the Heck issue is a slam-dunk for the State? Wilkinson v. Dotson seems to say pretty clearly that if the relief you are asking for does not imply that your conviction is invalid, then 1983 applies rather than habeas. Here, the plaintiff is merely asking for access to evidence for testing. To be sure, the plaintiff wants to test the evidence with the hope that it will be exculpatory, and that he can then use it to challenge his conviction. But the relief he seeks -- merely the opportunity to test the evidence -- says nothing about whether his conviction is invalid or not.
11.4.2008 10:25am
Dave N (mail):
Titus32,

You are right. Judge Goodwin wrote the Newdow opinion, joined by Judge Reinhardt (Judge Fernandez dissented). I had forgotten about his participation.

In answer to Anon02's question regarding why Heck is "slam dunk," I can't speak for OK, but I believe the Supreme Court wants to keep 1983 and 2254 actions distinct--and cases like this one muddle the distinction.

For example, the habeas rules makes discovery by the petitioner very difficult (since factual development of claims is supposed to take place in state court). I believe the Supreme Court will be very leary about effectively gutting that rule by allowing prisoners to gather evidence through a separate federal proceeding.
11.4.2008 11:01am
Anon02:
Thanks for the response Dave N, but I still don't understand why, as a doctrinal matter, this type of claim doesn't fall under 1983 rather than habeas.

As for your larger point, I agree that the Court is not going to endorse an approach that permits an end-run around normal postconviction discovery rules. But that can be addressed as a substantive matter (i.e., there is not a constitutional right to unlimited postconviction discovery) without muddying what seems to be a pretty clear rule on what the procedural vehicle should be (1983 vs. habeas).
11.4.2008 11:14am
FWB (mail):
All such testing, DNA or otherwise, should be removed totally from the control of the state and placed into unbiased, private sector hands. I have not yet met a prosecutor who does not take every crime as a personal attack. The state holds all the cards, has the power and the money to destroy.

Once the evidence is evaluated the results should be provided simultaneously to both the prosecution and the defense.

But then, I advocate no case unless there are two eye witnesses. It is all too easy to fabricate evidence or to interpret evidence in whatever manner/fashion the "tester/analyst" wishes.
11.4.2008 12:17pm
cjwynes (mail):
So long as they only order the testing when the DNA results would logically PROVE innocence, it may not be so bad. The problem would be if it were granted in situations where it couldn't PROVE anything, but could at best raise reasonable doubt. For instance, the fact that a person's DNA is not found doesn't prove anything, unless it is 100% scientifically certain that his DNA would have to be there if he'd done what he was convicted of doing. Or, for another example, the presence of some other person's DNA on a murder weapon may show that this other person had contact with it at some point, but that doesn't prove the convicted guy did NOT have contact with it.

Those are the sorts of situations that are likely to come up most often, and those are the sort where convicts are just looking to re-litigate the case years after the fact. Ordering such a test when all it could do is show that there may have been reasonable doubt is a bad idea. You can't void a conviction because you later discover something that might have raised reasonable doubt, so ordering the testing in those situations would only undermine confidence in the jury system with no benefit for the convict.

But in the very rare situation where DNA testing actually would prove that somebody absolutely could not have committed the crime for which he was convicted, and the evidence is available to be tested, and the convict can pay for the test, it seems reasonable to allow it.
11.4.2008 12:23pm
hattio1:
FWB says;

All such testing, DNA or otherwise, should be removed totally from the control of the state and placed into unbiased, private sector hands. I have not yet met a prosecutor who does not take every crime as a personal attack. The state holds all the cards, has the power and the money to destroy.


Unfortunately, that wouldn't do anything. What would happen is the state would make an exclusive contract to do all their DNA testing with one lab, and that lab would know what the tests needed to show. There have been cases of state crime labs falsifying reports. Changing the name on the lab won't effect that.
11.4.2008 12:45pm
byomtov (mail):
The problem would be if it were granted in situations where it couldn't PROVE anything, but could at best raise reasonable doubt. For instance, the fact that a person's DNA is not found doesn't prove anything, unless it is 100% scientifically certain that his DNA would have to be there if he'd done what he was convicted of doing. Or, for another example, the presence of some other person's DNA on a murder weapon may show that this other person had contact with it at some point, but that doesn't prove the convicted guy did NOT have contact with it.

I see your point, but I'm not sure it holds in the case of DNA testing. The critical thing, to me, is cases where testing was not done originally, either because the prosecution controlled the evidence or because the case was so long ago that DNA testing was not available.

Take the latter. Suppose we had a time machine and could test the DNA and present the results at trial. Suppose those results were enough to, "at best, raise reasonable doubt." Wouldn't that be legitimate? Wouldn't it justify an acquittal? The fact that the rest of the evidence wasn't sufficient to do that doesn't seem relevant to that question.

And what if the prosecutor simply doesn't do a DNA test when the results might be relevant? (Of course, that should be an absolute requirement, but I gather it isn't). Why is the defendant not allowed to insist on it being done later? Is it legitimate for the prosecution to simply withhold evidence arbitrarily?
11.4.2008 12:49pm
hattio1:
cjwynes says;

So long as they only order the testing when the DNA results would logically PROVE innocence, it may not be so bad. The problem would be if it were granted in situations where it couldn't PROVE anything, but could at best raise reasonable doubt. For instance, the fact that a person's DNA is not found doesn't prove anything, unless it is 100% scientifically certain that his DNA would have to be there if he'd done what he was convicted of doing. Or, for another example, the presence of some other person's DNA on a murder weapon may show that this other person had contact with it at some point, but that doesn't prove the convicted guy did NOT have contact with it.


The problem with this is that the DA can always come up with an argument where the "DNA doesn't prove anything." They even do it in rape cases. Logically if the semen there isn't the defendants, the defendant didn't rape the victim. But DA's will frequently change their whole theory of the case, and now it is clear that the defendant must have been helping someone else rape the victim. It's ludicrous.
Do you really think the DA should be able to deny DNA testing by coming up with a brand new theory of the case alleging co-defendant when, in decades of litigation, they never have proposed a co-defendant before. And that strikes you as a fair result????
11.4.2008 12:50pm
Fub:
J. Aldridge wrote at 11.4.2008 2:46am:
Mike&said: "Why do they not want to test DNA? Why are prosecutors so afraid of scientific evidence?"

Ask Mike NiFong.
Exactly.

Any legal rules that permit prosecutors to hide the ball indefinitely will inevitably produce Nifongs and testilying cops in droves. As if there aren't enough already.

But moral hazard arguments, no matter how obvious and accurately reflective of the real world, are not usually acceptable as legal or constitutional arguments, at least where they support reduction in government's power.
11.4.2008 12:54pm
cjwynes (mail):

Take the latter. Suppose we had a time machine and could test the DNA and present the results at trial. Suppose those results were enough to, "at best, raise reasonable doubt." Wouldn't that be legitimate? Wouldn't it justify an acquittal? The fact that the rest of the evidence wasn't sufficient to do that doesn't seem relevant to that question.


To do that kind of analysis you'd have to do one of two things. Give EVERYONE in that situation a new trial, which would result in lots of guilty people going free because witnesses couldn't be found 10-20 years later or couldn't remember important details, not to mention the time and expense. Or you could have some appellate court judge deciding when he thinks it would or would not have raised reasonable doubt based on the facts adduced at trial (was there a confession? an eyewitness? a strong motive?) plus his own guess about how logically relevant the DNA result is. That would put appellate courts in the position to selectively usurp the jury's function. That's exactly the kind of second-guessing of verdicts that would cause alot of trouble for the whole justice system.


And what if the prosecutor simply doesn't do a DNA test when the results might be relevant? (Of course, that should be an absolute requirement, but I gather it isn't). Why is the defendant not allowed to insist on it being done later? Is it legitimate for the prosecution to simply withhold evidence arbitrarily?


What is the guideline for when I'm supposed to have a DNA test run and when I'm not? If, as you propose, a test would be legitimate whenever it might raise reasonable doubt, there's almost no limit to the cases in which I would have to collect DNA samples and send them off to the lab. The police almost never collect DNA samples in run-of-the-mill burglaries, robberies, car thefts, etc. -- heck, it's rare that anything even gets fingerprinted -- but usually there's SOME piece of evidence that I suppose a convict with nothing but time on his hands could insist that we send to the lab to find traces of DNA that would prove -- what? Prosecutors in small rural offices would have a nightmare on their hands if they suddenly had to operate as if they had the budget of the Manhattan DA's office and access to the superscience technology of the people on CSI.

There needs to be a gatekeeping rule to prevent this sort of thing from turning into some ACLU crusade to overturn every 20 year old conviction in the country, and it needs to be a very narrow gate to keep out the sort of frivolous and time-wasting requests prisoners already like to clog the courts with. That's why I put the bar very high. Defense attorneys can and do try to turn any sort of irrelevant nonsense into an argument for reasonable doubt, so the bar certainly has to be higher than that.
11.4.2008 2:26pm
hattio1:
cjwynnes says;

Defense attorneys can and do try to turn any sort of irrelevant nonsense into an argument for reasonable doubt, so the bar certainly has to be higher than that.


And DA's can and do try to turn evidence of actual innocence into "irrelevent nonsense," including, as I mentioned before, co-defendants when in decades of litigation the DA has consistently proposed that the defendant acted alone. So again, how are you going to account for the DA's over-reaching if your proposed rule is adopted? I assume you are aware that DA's over-reach as often as defense attorneys?
11.4.2008 2:38pm
Bruce_M (mail) (www):
Are all rights stemming from due process "created from whole cloth" or just this one?
11.4.2008 3:12pm
Adam J:
cjwynes - "There needs to be a gatekeeping rule to prevent this sort of thing from turning into some ACLU crusade to overturn every 20 year old conviction in the country"

I love how some people like to assume bad faith on the part of anyone questioning a guilty verdict, yet believe that all prosecutors always have virtuous motives. Noone wants to overturn every 20 year old conviction, nobody wants guilty people to go free (as if that was possible, the deck is completely stacked against someone who has been convicted.)

"Prosecutors in small rural offices would have a nightmare on their hands if they suddenly had to operate as if they had the budget of the Manhattan DA's office and access to the superscience technology of the people on CSI."

Huh? All we're talking about here is giving defendents the right to access said evidence- there's virtually no burden on the DA here... except the possible political embarrassment of the DNA proving innocence. This isn't about setting the bar high, this is about not even giving him a chance to attempt the bar. The prosecutor is the one wasting time and resources on this litigation, all he has to do is let the convict test the semen. The prosecutor, if he knows he is truly right should have no concerns whatsoever, and the convict, if he truly did it doesn't really want the DNA tested. How much more proof then DNA do you need anyways? If its someone elses semen it's pretty much cut and dry he didn't do it.

"Defense attorneys can and do try to turn any sort of irrelevant nonsense into an argument for reasonable doubt, so the bar certainly has to be higher than that."

I don't believe reasonable doubt is the standard necessary to overturn a conviction. And please explain how the determining whether the semen found in the victim is "irrelevant nonsense". If you're truly concerned about irrelevant nonsense clogging the courts... maybe you should wait until you have a real example... because the owner of the semen is obviously the important evidence in the case.
11.4.2008 3:34pm
byomtov (mail):
Give EVERYONE in that situation a new trial, which would result in lots of guilty people going free because witnesses couldn't be found 10-20 years later or couldn't remember important details, not to mention the time and expense.

I'm not talking about eyewitnesses or confessions, where there can be legitimate reasons for refusing to consider them after 10-20 years. I'm talking about DNA, in cases where it's relevant. Not finding someone's DNA on a car door handle might not mean much. Not finding it in what is alleged to be the offender's blood, or semen, would be pretty important.
11.4.2008 4:19pm