Supreme Court DNA Ruling: Once Again Roberts Court Allows "Procedural" Issues to Trump Justice

The Innocence Project, a non-profit that represents inmates who they believe to be wrongly convicted, estimates that modern DNA testing has exonerated 240 people nationwide -- at least 17 of these were sentenced to death.

Law enforcement officials of all stripes agree that DNA testing is extraordinarily powerful at establishing both the innocence and guilt of those who perpetrate violent crimes -- especially rape and murder. That's why the FBI has established a nationwide data bank for the DNA samples of offenders.

But the Supreme Court ruled Thursday -- on a 5 to 4 decision -- that convicted inmates do not have the constitutional right to such tests, even though everyone agrees that it could -- as Justice Stevens said in his dissent -- "ascertain the truth once and for all."

As a result, if you happen to be convicted of a crime in a state whose legislature has not provided for post-conviction DNA testing -- or if your lawyer errs in not requesting such a test before you are convicted -- you're just out of luck -- even though you may be entirely innocent and someone else may be guilty of the crime.

In other words, in the view of the majority of the court, justice and due process are irrelevant. Roberts wrote that "the challenges DNA technology poses to our criminal justice systems and our traditional notions of finality are better left to elected officials than federal judges."

In fact, of course, the principal job of Federal Judges -- and certainly the Supreme Court -- is to defend the Constitutional mandate for due process of law.

Roberts' ruling is one of the clearest examples of the type of attitude that President Obama described as "ivory tower" opinions that don't comprehend the effect they have on real people in the real world.

If someone contests his conviction of a serious crime, and a means is available to cheaply and definitively determine his guilt or innocence, common sense says that it is only just to do the test and find out what is true and what is not. Even more so, because if an innocent person stands convicted of a crime, a guilty one is still at large.

The facts of the case decided Thursday are simple and clear. William Osborn was convicted of a brutal rape and assault in Anchorage, Alaska. During his trial in 1993, a test on semen found at the crime scene indicated that it could have come from Osborn -- but also from 15 percent of the population of African-American men. After his conviction, Osborn continued to profess his innocence, and wanted a more exacting test that prosecutors agreed would almost definitively prove his guilt or innocence. But the prosecutors refused to allow it.

In other words, the prosecutors were more interested in winning than in justice or truth.

That should outrage anyone with a sense of simple justice. And it should be an open-and-shut case on appeal. Osborn did appeal, and the 9th Circuit Court of Appeals recognized a right to such testing under the due-process clause of the Fifth Amendment.

But for Justices Roberts, Alito, Thomas, Scalia and Kennedy, the prerogatives of states, and "notions of finality," have more power than the interests of simple justice.

For me this is one more example why I am so glad that during his term Barack Obama will likely have the opportunity to return the Supreme Court to a body that performs the function for which it was intended -- the guarantor of due process under law.

As for William Osborn, I hope that the DNA test would have found that he had committed the crime for which he is serving time. Otherwise another innocent man may be wasting his life in prison, and a guilty one may still be brutalizing women. The Roberts' Court decision makes it likely that -- even though it would be easy to determine which is true -- we probably will never know.

Robert Creamer is a longtime political organizer and strategist, and author of the recent book "Stand Up Straight: How Progressives Can Win," available on Amazon.com.

Comments

[RTIII]

"But for Justices Roberts, Alito, Thomas, Scalia and Kennedy, the prerogatives of states, and "notions of finality," have more power than the interests of simple justice."

"For me this is one more example why I am so glad that during his term Barack Obama will likely have the opportunity to return the Supreme Court to a body that performs the function for which it was intended -- the guarantor of due process under law."

Firstly, and least importantly, in that first sentence the word our author was looking for was "import" and not "power" - prerogatives don't have power, they have import...

More importantly, it seems to be lost on our author - and many others - that the remedy for this is simple and does not involve the Supreme Court; Congress may pass a law, and the President may sign it, directing the courts to ensure such additional testing as may be reasonably known to the court should a conviction for which said test may not have been performed come up for appeal. There. Done. No justices need be changed on the court - though I also _profoundly_ agree that the Supreme Court's composition needs to change.
.

[JoAnnCr]

It's unbelievable. Can Supremes be impeached?

[dancucich]

"In fact, of course, the principal job of Federal Judges -- and certainly the Supreme Court -- is to defend the Constitutional mandate for due process of law. "

what you fail to understand is that John Roberts and company are "originalists"

"originalism" means they believe that the original intent of the drafters of the
14th ammendment due process clause, is what determines
the application of the ammendment.

And the drafters clearly stated the purpose of the 14th ammendment
was narrowly drafted to give blacks the right to contract, own property and
be free from oppression. It was drafted to "constitutionalize" the civil rights bill of 1866
so that future congreeses could not repeal it.

The due process clause of the 14th ammendment was not intended to
give the court the power to dicate
or oversee either criminal or civil administration to the federal courts

FYI: When any president tells you he wnats to nominate a judge who
believes in the "original intention " of the legislature, look out:
That means
someone who believes the social consensus
values of the 19th ( or even 18th) century america legislated from the Court.


In other words, its a state matter-according to "originalist" thinkers like Scalia,
thomas, Alito, and Roberts. and of course Robert Bork.

[darthmaul]

I'm surprised that Robert's didn't use this excuse.

"At the time the founders wrote the constitution there was no knowledge of DNA science, so therefore we cannot a defendant a constitutional right to a DNA test."

[ostrom808]

I would expect by Justice Roberts' mere presence on the court, and the history of his bias, precludes attorneys from even filing for a Supreme Court appeal.

During his tenure, he has NEVER ruled against the establishment or large corporate defendant.

NEVER. Because they were all on the side of right, don't you know.

[TJCole]

It's not Robert's Court, it's the Tory Swine Federalist Society Usurpers Court...and this decision is nothing less than Tyranny...draconian Medieval Tyranny..!

[MsLiz]

The issue before the Court was not "shall we order a DNA test as a post-conviction measure" but does a criminal defendant have a constitutional right to DNA testing. Me, I tend to think so.

[anelder]

Which naturally shows why so many policemen and average citizens see no wrong when justice is delivered outside of the courtroom.

The law may be the framework and strength of our way of life but if justice is ignored this too will go the way of all dissolute societies. This law of ours was never meant to be in place of justice. This supreme court, no capital letters, actually these men are determined to take us back to a time when science did not count. We have come a far way, as our forefathes knew we would, but men such as S, T, A, and R still yearn for the days when it was totally a matter of deciders trump everyone. They have a Supreme Leader complex.

In my advancing years I finally understand what my grandmother use to say. "There's a reason that God made us grow old and die". I also see where isolating ourselves in our convictions does not necessarily come with old age. Sometimes it's in the genetic makeup.

[ljmck]

The Supremes need to be DNA tested--to see if they're human.

[KT2468]

I wonder if George Bush knew Roberts was in favor of letting criminals walk free when he nominated him to the court?

It is shameful that the Republican dominated Roberts court would mandate that guilty killers be allowed to walk the street investigated.

By not ensuring new technology can be used to ensure only the guilty are in jail, by not ensuring that cases are re-opened, the Roberts court lets the guilty walk free, and commits the second crime of incarcerating the innocent.

[quiviran]

Roberts ruling is consistent with Bushes actions as Governor. Hang somebody and all is well. Never investigate the background of a case at all.

[shanedr]

Sounds like you left out something! Like who would pay for the tests. I doubt if the Supreme Court ruling prevents DNA tests. It sounds like the ruling prevents inmates from requesting tests that state and federal government would have to pay for.

Without that ruling almost every inmate would be requesting a government paid test in the hope it came up negative. Not only their tests but also tests from the victims. It is a boondoggle that could have crippled our justice system.

Wisely the court saw through the rhetoric and denied the attempt. Inmates can still have tests, they or their families will just have to pay for them. It also prevents government paid testing in the future. Government paid testing should be done for conviction. Accused testing should be paid for by themselves, if it exonerates them, then they can file a civil suit to recover the cost.

It costs far to much to prosecute crimes now, thankfully with that ruling the costs will not increase for now.

[Rrhain]

You assume that every crime has DNA to test. Most don't.

Do not confuse CSI with reality.

And yes, we should be paying for them. That's the price for being the good guys. You seem to be saying that it is better that the state save some dough and keep an innocent person in jail.

But since you're so hopped up on money issues, consider this: If we take the money we would have used to incarcerate an innocent person and instead spend it on DNA testing, we will have quickly paid for the testing with just a few releases.

Surely you're not saying that our system is so good that innocent people hardly ever get convicted, are you?

[Skepticat]

Most accused know whether or not they committed the particular offense -it would be very easy to discourage "wasteful" use of DNA testing by charging the confirmed guilty for the test or adding additional consequence. The idea that someone who is actually innocent can be bankrupted by legal bills is bad enough - but the idea you should also have to pay for all the forensics to prove the state was wrong in locking you up for 20 or 30 years is pretty scary, as is the suggestion that the state does not have to examine all evidence possibly in favor of the accused because it might cost money - sounds so republican.

[MsLiz]

The appellant, William Osborn, agreed to pay for the test. There is no cost to the government. Your premise collapsed, thus your argument fails.

[dctackett]

At first I thought this was a joke, total sarcasm... then I realized you were serious.

First of all, it would only apply to cases in which DNA testing even applied. Secondly, not all inmates that it applied to would challenge. Thirdly, this is about potential innocent people in prison and guilty parties being free to commit more crimes. We pay for the police, they're equipment, the forensics, the courts, etc... why oppose a simple cheap test that could bypass all the unknown bs and get straight to the point of the reality of the situation? Do you know how many inmates or their family would pay for the test themselves?...

if you were locked in a cage with criminals, and you were innocent, wouldn't you want the opportunity to prove yourself innocent and be released?

you say "Inmates can still have tests, they or their families will just have to pay for them"... yeah, they can have as many tests as they want, but it doesn't mean anything legally, smarty.

[garbagehead]

Well, this is Alaska we're talking about...

Make innocent people pay for DNA testing.

Make rape victims pay for rape kits.

yep, a real bastion of justice.

[vim876]

I gotta say, I'm freaked out by a court that decides whether testimony is true or not based on the idea that " "The court relied heavily on the fact that Osborne had confessed to some of his crimes in a 2004 application for parole--in which it is a crime to lie. "
Smoking pot's a crime too--but people do it. If they assumed they could not be exonerated, an innocent person could easily be pressured to confess in order to cut down on prison time. The above quote is even more disturbing if you note that they know there is an incentive to confessing, regardless of guilt: "Despite this acceptance of responsibility, the board did not grant him discretionary parole."

[Rrhain]

Parole is a catch-22: If you protest your innocence, then you have not "accepted responsibility" and thus are ineligible for parole. If you say you did it, then you're lying.

In a sense, this makes sense: Parole is supposed to be a reward taking responsibility for your actions and thus of course it must assume the person did the crime. It is not the place to retry the case.

But when such a simple action can clarify so many issues, one wonders why prosecutors are so reluctant. Well, I sorta understand: Reputation and all that. But I would rather have a prosecutor who will fight for the innocent over his win/loss ratio than one who never loses.

[Mysticalsister]

conservatives will always side with the conservatives on the high court,
until they find themselves sitting in a jail cell accused of a crime
they didn't commit, and unable to use
available science to prove
their innocence.

[sdskelton03]

This guy chose not to use the DNA evidence at trial.

[MsLiz]

No. The trial happened before the current tests existed.

[marignymitch]

I believe you are correct, Mr Creamer. But there's another important fact to remember: The five Supremes traditionally support rights for the government and corporations not people.

[n4m]

"Osborne's lawyer strategically decided not to send the sample in for a more precise RFLP DNA testing, as she did not believe in Osborne's innocence and determined that the RFLP DNA test would only confirm his guilt. See id. at 1123-24.."

thanks to the poster who provided the link for this quote
http://topics.law.cornell.edu/supct/cert/08-6

It was Osborne's attorney's belief in his guilt behind the decision not to use the more precise, definitive DNA test.
What was the reason behind the prosecution's decision not to use the more precise test?