03/09/2011 03:59 pm ET | Updated May 25, 2011

Is the Supreme Court Going "Soft on Crime"?

If you accept the conservative definition that judges who uphold and enforce the constitutional or statutory rights of those accused or convicted of crimes are "soft on crime", then the answer is yes. As in so many other instances, the conservatives have repeated this ludicrous mantra so often that the public has come to believe it. They have created this fantasy of liberal judges sitting around their breakfast tables eating their Wheaties and wondering how they can spend the day setting some criminal free. Judges who uphold the Constitution do not enable, encourage or enhance crime, and doing so does not make them "soft on crime." They are merely following their sworn oaths.

The Supreme Court has ruled in the case of Hank Skinner that he has the right to pursue DNA testing under federal civil rights laws and is not limited to the traditional remedy of habeas corpus. The ruling does not grant him the tests, but rather merely provides an avenue to pursue them. But what is truly baffling about this case is the need for Supreme Court review.

Mr. Skinner, convicted of a triple murder, sought DNA testing -- the results of which may have confirmed his guilt and led to his execution or established his innocence and led to his exoneration. No harm could possibly come from the results. The expenses were underwritten by others, but nonetheless, his requests were blocked and thwarted by every prosecutor and court along the way to the Supreme Court. What would have seemed a "no-brainer" to everyone, literally became a Supreme Court case.

There also is a very interesting back story. The Medill Innocence Project of Northwestern University (along with other dedicated individuals and organizations) was extremely active in this case including obtaining a stay of Mr. Skinner's execution 30 minutes before it was to take place. The Medill Project is involved in a similar case involving Anthony McKinney convicted of murder 30 years ago. In an astonishing and unprecedented move, the prosecutor, the New York Times reports, "subpoenaed the grades, grading criteria, class syllabus, and email messages of the journalism students." Rather than focusing on the claims of someone possibly innocent and wrongfully incarcerated for 30 years, the dispute over these extraordinary subpoenas has gone on for years, costing hundreds of thousands of dollars and causing friction between the University and Prof.

David Protess and the Medill Project. Why the media is not up-in-arms over this is a mystery to me.

In my view, as I said in an earlier post: "It is a direct attack upon those who engage in this worthy activity, invades their privacy and serves to intimidate and discourage this important and courageous service to our system of justice." Resisting efforts to allow evidence which may free a convicted person facing execution is difficult enough to understand, but to personally attack and investigate those who seek to free that person is reprehensible. Both efforts promote injustice rather than seek justice.