Okay, can some legal genius explain to me, using small words and maybe some charts, why denying convicted felons the right to DNA tests that might prove their innocence is not a gross miscarriage of justice? It's not that I think that every good thing is therefore a constitutional right. But the basic outline of the rules for determining guilt and innocence is right there in the constitution.
What's even more depressing is that libertarians like me can't even count on getting a better result on things like this from our new liberal judge. Reputedly, she's very pro-prosecutor.
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I've heard the following reasoning, but I do not agree with it.
1. A guy on death row is going to try damn near anything to get out.
2. If a DNA test comes up negative, one can still blame the lab for messing it up (this is actually a very valid point, obtaining a positive is much easier than obtaining a negative)
3. Our system does not have the capacity to deal with all the extra appeals.
I think no. 3 is the real reason. And I also think its a damn lousy one.
I'm more cynical than you. I think that the real reason is that our system has become biased towards the prosecution and that this undercuts our faith in convictions.
Now, it's entirely possible that I'm wearing a tinfoil hat and that maybe there is some higher motivation but when the stake is a persons life and the possibility that we've wrongly convicted an innocent man, I just don't see how we can justify this.
If people think long-convicted prisoners should have the right to DNA tests (and I tend to), they can pressure elected officials to pass laws. There's no reason for the Supreme Court to legislate this issue.
As for this being at the heart of the constitution, a quick read turns up plenty of text about fair trials but nothing about further investigations after said trials have concluded.
What text would you be thinking of when you assert this should be a no brainer for the court?
Agreed, the presumption of innocence pretty much ends once the judge or jury says “guilty” and while a convicted person has the right to appeal the way his trial was conducted, they generally don’t have the right to make new arguments and/or try to introduce new evidence. That’s what the case came down to, a convicted felon who could have introduced DNA evidence during the trial choose not to do so and now that he lost, wants to go back and get a “do over.”
The majority opinion authored by Roberts that the Constitution doesn’t require giving someone who found guilty a chance to redo their trial by introducing new evidence that they chose not to introduce during their original trail (again this is different from appealing because of governmental misconduct or because the judge misapplied the law and it materially prejudiced the defendant) is correct IMO. If States wish to go beyond what is required by our Constitution by granting convicts additional statutory rights to introduce DNA evidence, that’s up to them to do through their legislature.
"choose not to do so" may actually be "was unable to do so because the technology was not widely available at the time of the trial"
DNA technology is relatively new, and people sit on death row for a long long time.
That doesn't negate your argument, but it does weaken it.
There is an element of both in this case, because the defendant's lawyer apparently didn't request even earlier DNA testing because she thought it would reaffirm the guy's guilt. 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.
Ken,
DNA technology goes back to the 80s, and this case arose in 1993. There was actually better testing available at the time of trial (RFLP testing for those keeping score at home) and the defense lawyer, probably for good reason, chose not to request better testing.
Tim in Portland
What text would you be thinking of when you assert this should be a no brainer for the court?
The same one they found Roe in -- the "I really really REALLY want this" part.
And I think all legislatures should pass this ASAP -- not that they will.
Andrew,
a quick read turns up plenty of text about fair trials but nothing about further investigations after said trials have concluded.
How about those? Right to appeal and right to obtain witnesses.
Nobody's questioning the Supreme Court's jurisdiction to hear this case.
Not going to review the opinions before you give your own? The reasoning is pretty straight-forward.
"To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response.… "By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore exercise the utmost care whenever we are asked to break new ground in this field."
"Establishing a freestanding right to access DNA evidence for testing would force us to act as policymakers, and our substantive-due-process rulemaking authority would not only have to cover the right of access but a myriad of other issues. We would soon have to decide if there is a constitutional obligation to preserve forensic evidence that might later be tested. If so, for how long? Would it be different for different types of evidence? Would the State also have some obligation to gather such evidence in the first place? How much, and when? No doubt there would be a miscellany of other minor directives."
Sounds like a first step to overturning Roe v. Wade.
No, its just classic Roberts court: break with precedent without explicitly overturning it.
Which is pretty sound reasoning. This is a matter for legislatures, not courts.
indeed. It may be that this is a good decision (legally) without being a good end. It's really for the legislatures to decide.
I would like to see more restraint like this.
In this case, it's a good end. Even his lawyer thinks he did it, and Osborne refused to swear that he didn't do it when making the habeas corpus demand.
Shouldn't everyone also have free, unlimited access to the best possible defense team, with all expenses paid?
I agree with Andrew Smith that there are two separate questions here. I would tend to support legislative efforts to give convicted prisoners access to DNA tests, even though many of them will ask for it just to mess with the system and cost taxpayers money. It may still be a good use of funds. But that doesn't mean that the Supreme Court should rule that prisoners have an absolute right to any and all efforts, over and over and over, to recertify past outcomes every time technology changes.
"But the basic outline of the rules for determining guilt and innocence is right there in the constitution."
Hmmmm, it's been a while since I took Con Law. Can Megan please point me to the clause in the Constitution that refers to DNA? I forget where it is.
Seriously, if this is so important, surely it shouldn't be difficult to just convince Congress to pass a law?
Huh? - that doesn't even make any sense.
"The Supreme Court has ruled (a 5-4 decision) that a person who has been convicted of a crime, and when there is DNA evidence present that could conclusively prove innocence or guilt, there is no Constitutional right to have the DNA tested or requirement for the prosecutors to hand the evidence over to the convict’s attorney."
Are they saying the convict can't have the DNA tested at his own, or his family's expense?
Yes, they are saying that. The reason they're saying that is because there's no reason to believe that DNA tests can conclusively prove innocence (you can get false negatives). See my post below for numbers.
No they said it's about federalism. That is, it's up to STATES to decide if a convict can have the DNA test on his own, at his expense.
Alaska has said no. They've said it's Alaska's call. Other states may decide differently.
Allison,
Alaska hasn't said "no" to everyone". It's said "no" to a guy who chose not to do the test when it might affect his trial.
That's a rather different situation.
Here's my try:
1) In the specific case the Sup Ct looked at, the lawyer made a tactical decision not to ask for a more accurate DNA test before trial because she thought that Osborne was guilty and thought his best defense was to challenge the witness ID. Generally, unless a decision is grossly incompetent, litigants are held to the tactical decisions their lawyers make.
2) The guy in question, Osborne, confessed to the crime as part of his parole application. (Yes, there are strong incentives to lie in that case, but it's one more thing on the other side).
3) There's a federalism issue. There's an unpublished Alaska case that indicates that Alaska might recognize a state right to DNA testing where either (a) there is other clear evidence of innocence or (b) even without evidence of innocence, the conviction was obtained through a witness ID and DNA would be conclusive.
4) The majority and the dissent argue about the risk of false negatives. The new DNA tests are so accurate that cross-contamination is very possible. (I.e., they could easily pick up DNA from anyone else nearby during either the crime or the evidence processing). I'm not clear on whether cross-contaminated DNA would be likely to result in an acquittal or just a "sorry, the DNA is contaminated," but I'm not sure the Supreme Court knows either.
I'm still inclined to give convicts access to DNA, but you asked for an explanation, so there it is.
re: Cross contamination:
A group came up with a test for the sex of a child using PCR. The test was great, with one small problem: It tested for the presence of a Y chromosome. Due to contamination issues, the tests had to be run by female techs, since you'd get one or more cells from the lab tech in the mixture, and so all results run by male techs came back positive.
In short, cross contamination can be a real problem.
I don't believe that the Court is saying that a criminal defendant, after a conviction becomes final, has no right to a post-conviction DNA test. I believe that Court is saying that he has no constitutional due process right to a post-conviction DNA test. I haven't finished reading the opinion, but it seems to me that the Court is trying to control what they some very bright legal scholars believe is a growing fetish regarding scientific evidence but ay out what they feel is an orderly post-conviction process with an eye on the role of the Federal Courts: first seek relief in state court, then seek Habeas relief under Section 2254 (2255 in Federal Cases).
But the basic outline of the rules for determining guilt and innocence is right there in the constitution.
Yep, and at the center of it is the jury system. The Court, and all Courts, liberal and conservative, are very concerned about the integrity of the jury process and the finality of jury verdicts. That's a huge concern. Do you really want an environment where juries essentially shirk their duties until they see scientific evidence that, 1.) may not be necessary in order to obtain a conviction, 2.) may not be available and 3.) can be used, abused, misused, distorted by both the State and a wealthy defendant with access the clever lawyers. That's a very real fear.
Some people who think about these things point to the Robert Blake case as an example where jury expectations were raised too high: the CSI effect. Despite a pretty tight case involving classic evidence of motive, intent, ability, burdens and standards of proof, the jury refused to convict because the State could not beyond any and all doubt prove that Robert Blake fired the gun that shot the bullets that killed the victim, i.e., because they never found the murder weapon.
Lest you think that this cuts in favor of a defendant, 9 times out of 10 such a attitude will cut against a defendant. If a jury is going to ignore . . . wait . . . confuse "reasonable doubt" with "beyond any and all doubt" what to stop them from confusing other standards of evidence and burdens, or worse, picking and choosing what evidence to consider, and what to ignore?
Wow, some bad typos there, folks. Sorry.
A friend of mine works within a city district court system, and gets a first-hand view of the volume of mail that comes in from priosoners who have nothing better to do than sit around all day and look for legal loopholes, sometimes purely for the sake of wasting the court's time. A large number of these get rubber-stamp denied because the petitioner fails to follow the required paperwork or procedural rules, but a good many others require a second or third level of review with a response discussion on the relevant point of law.
One cringes to think of the crippling paperwork burden if every person ever convicted in a crime involving DNA evidence had carte blanche to file review requests, regardless of relevance. Potentially all it takes is one blood splatter from any source.
But don't you agree that a sample from the perpetrator of a crime -- rape evidence, for instance -- should be tested? I think it depends upon the degree to which the sample can be attributed to the person who committed the crime. For some, that will be very clear; and the right for testing should exist; particularly for people sentenced to life imprisonment or death row.
IANAL and I am not quite following all of the court's reasoning here, but aren't they basically saying that once the trial has been processed and the verdict returned, there's no further constitutional right to go back and demand evidence ad infinitum that would have been available during the discovery procedures of the trial?
It sounds like a problem they are trying to get around is the case where the defense tactically does not request DNA evidence testing for use at the trial on the grounds that a positive ID is likely and would torpedo the defense, and then after being handed a guilty verdict, says "Wait a second, let's go reopen the case and look at that after all." Which would be an enormous waste of court resources and taxpayer money, exercised for purposes of gaming the system.
Perhaps for new trails; I'd agree -- if you ask for it, it should also be able to be used against you, as in what you say can from Miranda.
But there are lots of old cases where a different standard needs to be set.
To answer your question Megan: It's because there's no reason to believe it would actually do any good. Here's why: (for the straight numbers reason, skip to **HERE**)
Every test has both a false positive rate, and a false negative rate. At any given level of technology, driving one down tends to drive the other up. this matters, especially when you're looking for "conclusive" proof of innocence.
The first problem: what is "conclusive" proof of innocence? Consider a rape case. If you find the guy's sperm there, you have proof of guilt (or, at least, proff they had sex). Finding someone else's sperm there, however, doesn't necessarily prove anything, unless she went straight from the rape to the hostipal, and hadn't had sex with anyone else in the last (what's the life time of spern outside the body?).
Consider a robbery: The fact that you didn't find his DNA there, and did find someone else's, doesn't provide proof of innocence, unless it gives you enough to prove that the other person actually did it.
**HERE**
Assume you've dealt with the above problems, you're still left with the false negative rate. Assume that 1 person in 1000 is wrongly convicted. Assume that the lab test has a failure rate of 1 in 100. Assume there are 100,000 people who are eligible to be tested. Apply the above numbers:
100 innocent people will be tested. 99 will be freed.
99,900 guilty people will be tested. 999 will be freed.
1,098 people will be freed, of which 99 (9%) will actually be innocent. You're going to have a hard time convincing me that a program with a 9% success rate is a "constitutional right".
Let's change the numbers, and give the test a failure rate of 1 in 1000 (i.e. same as the assumed conviction failure rate):
100 innocent people tested, all of them freed.
99,900 guilty people tested, 100 of them freed.
So, congratulations. We correctly convicted and sent to jail a hundred robbers, rapists, and murderers, and you've just freed them in order to also free 100 wrongly convicted people. That may be good public policy to you, but I don't see how you can claim it's a constitutional right.
In short, before doing this sort of random testing, you need to make sure that the proportion of the population you are looking for is significantly greater than the failure rate of your test. Because if it isn't, then your test can't possibly be "conclusive".
Now, if the rule was: "you can ask for a test, but if it comes back against you we increase your punishment", then the testing wouldn't be "random", and so you've have a better case. But we don't put people at jeopardy for taking their constitutional rights. So making it a Constitutional right would keep states from setting up something like that.
Without your assumption that "1 person in 1000 is wrongly convicted," the rest of your numbers are meaningless. Furthermore, DNA tests conducted so far seem to indicate a much higher innocence ratio than 1 in 1000. This holds true even if you only consider cases where someone else was subsequently convicted of the crime, and not ones like you say that may be the result of lab error.
All the numbers are meaningless hand-waving. But one of the reasons why we never did random AIDS testing was that the low incidence of AIDS in the general population, and the relatively high false-positive rate for the test meant that the majority of "positive" results from the testing would have been false. So until you can pin down numbers, any commentary on this is emotional bloviating, rather than rational argument.
Would you like to provide a reference for the claim that the false prosecution rate is > 1 in 1,000?
Note that the false positive / false negative rate is not about "lab error", it's about the limits of what can be done with the technology. If you look for DNA markers, then a result of "1 in 10,000 chance it's not him" means that 1 time in 10,000 you're wrong, and it's not him. And that assumes the hand-wavers are right, and it really is a 1 in 10,000 chance, not 1 in 100 (or 1 in 1,000,000). You have to add lab error on top of that.
From the NYTimes article quotes in the above link from McArdle:
So maybe that's not a study of the prison population as a whole, but it is a study of the portion of the prison population that's asking for DNA testing.
Reply is to Peter:
No, that's not a study of "the portion of the prison population that's asking for DNA testing." It's a study of 225 who were actually exonerated by DNA testing. 40%+ of the time, they were exonerated by "finding the real culprit." That's good, IMHO.
The rest? I'd be really curious to see how they proved the innocence of the person.
Your "Assume that 1 person in 1000 is wrongly convicted" is almost certainly much too low. I remember a published claim in the late 90s (I think the book was quoting Amnesty International, but am not sure and can't remember the book's title), that as many as 20% of American prisoners were wrongly convicted. I have no good idea what the real rate is, nor does anyone else (which is part of the problem).
Bill,
Um, consider the source. AI dopes so good work. They also do some batshit crazy things. I'm going to need some strong evidence before I take this claim out of the "batshit crazy" partion..
This was a fine time for the court to suddenly rediscover federalism.
The due process clause of the Fourteenth Amendment guarantees fundamental fairness, justice, and liberty.
With the incredible technological forensic advances of DNA--denying someone charged or convicted of a crime the right to obtain DNA testing is profoundly unfair, as has been demonstrated by the Innocence project and the scores of individuals cleared by DNA, after languishing for years in prison.
Alioto's concerns about the technical details ,costs and problems attendant to this right to assist in the determination of guilt or innocence are probably justified--but we are supposedly a society that values liberty, freedom, justice and due process regardless of the cost.
Oh, and as for the orginalist commenter who lectured us that the constitution did not say anything about DNA--even a a rather rigid orginalist, like Scalia, would consider you a spectacularly ignorant jackass--it's kind of like how there were no autos or telephones back in the day--but the Fourth Amendment still apples. I have never heard anyone make the argument that something has no constitutional implications simply because it did not exist at the time of the drafting of the document--however the contra argument is valid.
You are advocating that SCOTUS should do it's constitutional interpretating Obama style: with a healthy dose of empathy. If you were really making a constitutionally based argument, you would come up with something more specific than "gross miscarriage of justice".
While I, too, generally favor extending the right to convicted criminals to have at least one opportunity to challenge their conviction through DNA testing that was not available at the time of trial, I don't believe the denial of these right can be seen as a violation of "the basic outline of the rules for determining guilt and innocence [that] is right there in the constitution."
First, in many cases, the rules for determining guilt and innocence, generally speaking, address only the original trial and any appeal from that conviction. The fact that DNA technologies that become available after the initial conviction (and thus could not have been used at the initial trial) were not in fact employed at the time of the trial says nothing about the fairness of the initial conviction. Similarly, the failure of the defense attorney to pursue DNA testing during the initial trial probably should not be treated any differently from the defense attorney's failure to pursue any other potentially helpful line of inquiry that Monday-morning quarterbacking might persuasively establish would have been effective in securing the defendant's acquittal. Indeed, the contrary position arguably undermines a bedrock principle of our civil and criminal system: finality. Tossing this principle out - and if, e.g., new DNA technologies justify doing so, why shouldn't any significant advance in forensic technologies justify the reconsideration of prior convictions - would impose significant costs on the system that our favorite econoblogger should be able to appreciate. (And her failure to do so suggests that she never made it across the Midway during her years at Chicago to drink from the font of law and economics over at the Law School.)
Second, the constitutional right to an appeal, to the extent that one even exists (note that the constitutional language noted by jmo3 above does not speak to an individual's right to an appeal), is generally understood to permit one appeal of any given case. That right, whether granted by statute or by the constitution, terminates when (1) the party fails to file a notice of appeal within the specified time, (2) when the appeals court rules on the appeal and the Supreme Court declines review or the time for seeking Supreme Court review lapses, and (3) when the Supreme Court decides the case. The right of appeal is not a general right to challenge, based on new evidence or new technology that makes previously unavailable evidence available, a prior final judgment.
Third, to the extent that we have created statutory rights to challenge prior convictions (i.e., through statutory habeas corpus provisions, as happened here), these rights are, perforce, extremely limited. If they weren't, the principle in point 2 would be completely undermined. The most common challenge is based on some defect in the proceeding leading up to the conviction, but as I discussed above, the mere failure to use technology not available at the time or the mere fact that the attorney made a strategic decision that in hindsight looks like it would have been effective cannot, in any system that values finality, be conclusive on this issue.
To their credit, the folks at Outside the Beltway appear to recognize that finality is an issue, but their conclusion is rather glib: "But there has to be a way to craft a standard that simultaneously allows legitimate exculpatory evidence and doesn’t turn every conviction into an infinite circus." Indeed. And there also has to be a way to provide cutting edge medical care for everybody in this country at a lower cost than we as a nation currently pay for such care. Why? There just has to be...
"But the basic outline of the rules for determining guilt and innocence is right there in the constitution."
In this case, guilt / innocence was determined 18 years ago according to the Constitutionally prescribed manner. Once the appeals ended, the system makes it hard to re-litigate (and has to). The facts look pretty bad for the defendant and you get the sense he wasn't genuinely expecting the test would exonerate him but more hoping it would simply create confusion so he could argue for a retrial. The other point is that 40+ states have afforded this right on a statutory basis and the Court saw no need to impose that practice on the rest. Which is generally good judgment, I think.
I have never heard anyone make the argument that something has no constitutional implications simply because it did not exist at the time of the drafting of the document
I've heard that about 1000 times from gun control advocates who would be willing to buy a 2nd Amendment right to muskets only.
Re: DNA Read the opinion for yourself. You will see that states have created a variety of mechanisms for winnowing out frivolous requests while allowing meritorious ones, such as requiring a sworn statement of innocence, requiring that the requested test be technologically unavailable at trial, banning tests which were forgone for tactical reasons, or requiring that the test have the potential to establish innocence. It is far from obvious to me that these mechanisms are unconstitutional or a bad idea.
That is to say, nobody thinks denying innocent people a chance to prove their innocence is a good idea. But on the other hand, there are reasonable grounds to think that such denial is not actually happening, and that genuinely innocent people do have the chance to prove their innocence, and therefore SCOTUS interference and one-size-fits-alling of the problem is unnecessary.
Rob,
Seriously, you have already read the whole opinion? It was just announced this morning. And it took me two minutes to print the damn thing off.
No, just skimmed the parts of the majority holding that were relevant to my comment. I'm not writing an in-depth analysis here (or anywhere).
Also, I didn't print it, which saved time.
Of all the arguments against, the one that says that we'd end up freeing more guilty people is the weakest, IMO. Our system is designed to err on the side of letting guilty people go free rather than convicting the innocent. I consider that a feature. If DNA testing would release the 100 wrongly convicted innocents and 100 who are truly guilty, I would approve of it.
I do find it hilarious that the court is worried about making up new rights in THIS case but not in all the other cases where it has made up new rights and removed a controversial issue from the realm of public debate.
f all the arguments against, the one that says that we'd end up freeing more guilty people is the weakest, IMO. Our system is designed to err on the side of letting guilty people go free rather than convicting the innocent.
Yep. But the person has already been convicted under that standard. At which point, the rules change.
And if you're OK with the government releasing 11 guilty rapists in order to free one wrongly convicted rapist, then I think you should be force to move someplace where you're likely to run into one of those guilty rapists you so blithely released.
From page 6 of the Opinion:
In 2007, he was released on mandatory parole, but he has since been rearrested for another offense, and the State has petitioned to revoke this parole.
I wonder what that other offense was? Was someone else raped, beaten with an axe handle, and shot?
Releaseing hte guilty often harms the innocent.
Greg,
Sir, are you insane?
I wasn't under the impression the burden of proof was on the defendant. Are you saying defendants should have to conclusively prove his innocence.
I obviously must have misunderstood you.
The burden of proof is on the defendant after he's been declared guilty and exhausted appeals.
Sir, are you insane?
I don't think so. But isn't that supposed to be true of the insane? :-)
The burden of proof was on the prosecution. They won. The defendant now wants to re-open the case.
Exactly who, in that situation, should carry the burden of proof? The already convicted criminal? Or the prosecution?
If you want the criminal justice system to spend it's time hunting down the guy who committed rape last week / month / year, rather than repeatedly reviewing the prosecutions of rapists and murderers from decades ago, you put the burden of proof on the convicted criminal.
richao,
I get what you're saying about "the fairness of the initial conviction". But the point of a trial is both fairness and justice, if a fair verdict was reached that convicted an innocent man justice wasn't served.
As to your other point: Are you insane? I can't even argue with you as I can't conceive of anything taking your position.
Are you saying that if the rape kit from 15 years ago is sitting in some evidence locker, and it's possible to test it, you can't use it to prove your innocence?
Are you saying that if the rape kit from 15 years ago is sitting in some evidence locker, and it's possible to test it, you can't use it to prove your innocence?
I don't believe it's possible to prove your innocence with a 15 year old rape kit, other than by proving that someone else did it. And by "proving" I mean "getting the other person convicted because the rape kit caused the prosecution to look at other evidence which then allowed them to prove that the other guy was guilty."
Which would be difficult, since the Constitution imposes a Statute of Limitations of 7 years.
DNA breaks down. There are stronger standards for handling DNA evidence, standards that are needed when dealing with more sensitive tests. But I'd be really surprised if the DNA in that 15 year old rape kit was in good enough shape to prove that the convicted person wasn't, in fact, the rapist.
I wasn't under the impression the burden of proof was on the defendant. Are you saying defendants should have to conclusively prove his innocence.
AFTER conviction (which is what we're talking about), the burden of proof most assuredly is on the defendant. In every state of the Union and in the federal system too.
Hopefully this will correct your previous misimpression.
I should correct the above to say: the burden of proof is on the convicted felon, not the defendant. There being no defendant anymore.
jmo3,
When calling me insane, could you at least have the courtesy of (1) identifying which point of mine you're addressing (I make at least three in my comment above; "your other point" is decidedly non-specific) and (2) explain to me why that position raises doubts about my sanity? Really, it's the least one could do. One might otherwise think you were merely tossing about ad hominem arguments because you have nothing better.
In any event, you'll see that I opened my post saying that I would probably favor extending a limited right to challenge convictions at least once through the use of DNA evidence. But I noted that there is no basis in our current legal framework for requiring (in any but the most limited circumstances) the judicial system to reopen a final judgment for consideration of new evidence. I don't see how there can be any dispute about that statement as a descriptive matter. I also noted that there are costs to allowing prior cases to be reopened. Coupled with the fact that law strives for treating like cases alike, it might be challenging to create a fair rule that allows access to 15-year-old rape kits (but surely this has to be fact-dependent - are we really willing to allow a defendant to ignore the rape kit during his trial, keeping it in reserve as a trump card if he's convicted?) while denying, say, the right of a convicted felon to reopen his case every time an apparently reliable eyewitness who can attest to the convicted felon's innocence shows up.
I've already provided far more of a response than your ad hominem hackery warrants. If you'd like further, you can do me the courtesy I requested above.
Rob,
Glad to see you were paying attention in law school.
I was objecting to "conclusively prove his innocence" I would have thought that if new evidence comes to light causing the "proof" presented at trial to move from beyond a resonable doubt, to resonable doubt, you would have your conviction overturned.
Good lord, what system of justice could withstand that sort of post hoc review? Seriously? With every phony confession, bogus evidence plant, etc. now requiring us to ignore the prior jury decision, and essentially restart the process to determine if (1) reasonable doubt *now* exists, in light of some new evidence, and (2) overturn the prior conviction and restart the process again if reasonable doubt's low threshold is leaped?
Do you want to encourage every criminal to send in to federal courts yet more attempts to get out on BS filings? If so, your view of teh court process is a great way to achieve it.
Nobody is asking to restart the process. They're not even asking to burden the government with conducting DNA testing. All the convicts are asking for is the opportunity to test DNA evidence AT THEIR OWN EXPENSE.
Megan,
Unlike Rob, I do not have the time or the energy to read the opinion.
But I am not going to let that stop me. The short answer is that Thorley Winston and J Mann have it right. A criminal defendant who is convicted by a jury and who had access to evidence at the trial stage and chose not to offer it in evidence at trial cannot offer it on appeal. Another commenter used the term "finality" and that touches on the concept that appellate courts try to insulate or protect jury verdicts.
Becky's comment above touches on the idea that most state procedures for post conviction relief have an exception for "newly discovery evidence." As best I can glean, it appears that this defendant wants to argue that the application of a new DNA test that was not available at the time of his trial constitutes newly discovered evidence.
After that I really got bogged down in the complicated procedural posture of this case.
Tim in Portland
while denying, say, the right of a convicted felon to reopen his case every time an apparently reliable eyewitness who can attest to the convicted felon's innocence shows up.
So, you're saying if a new witness comes forward I can't reopen my conviction? If that is the case, may I be the first to admit, my ignorance of the law is astounding.
I would have thought that if new evidence comes to light causing the "proof" presented at trial to move from beyond a resonable doubt, to resonable doubt, you would have your conviction overturned.
That's not how it works. Once you're convicted (and that conviction becomes final on appeal), you get to carry a presumption of guilt around and have to overcome it to even get a new trial. SCOTUS has consistently denied habeas petitions which were based on the "reasonable doubt" model you suggest. It's not enough to show that your trial was unfair in some technical respect; you have to show that there's some chance you're actually innocent.
Note that on appeal from the original conviction, a technicality might still be enough to get a new trial (provided it's not "harmless" in light of all the other evidence against you), but once that lapses, you're sunk.
richao and Rob,
So, let me see if I understand this. If a five nines reliable PET scanning "lie detector" was developed, someone wrongfully convicted of a crime would be unable to use this evidence to obtain his release? The court, in this opinion, found that if new technology is invented, it is incumbent on the legislature to change the laws to accommodate this new technology?
I certainly hope so. It's the legislature's bailiwick.
We are supposed to be governed by our elected legislatures and executives, not the courts. Our elected officials make policy.
The functions are separate for a reason. A judge has enormous power. We wisely limit its scope.
Furthermore, if your 99.999% reliable lie detector ever becomes available that opens a whole can of worms regarding self incrimination that must be handled politically.
jmo3,
As to your non-ad-hominem argument: You write "if a fair verdict was reached that convicted an innocent man justice wasn't served." Well, sure. True enough. And every time a defendant in civil litigation is forced to pay millions of dollars for a tort he didn't commit, justice is not served.
But your argument proves too much. If we're to believe prisoners, our prisons are full of innocent people, just as I've seldom seen a civil defendant that cops to its own tort liability. Do all of these folks deserve to have their cases remain perpetually open? How do we determine which cases to reopen and which to leave undisturbed? Certainly limiting the inquiry to cases where a DNA sample exists can hardly be called just: What about the poor innocent schmuck wrongfully convicted of murder in a case where there was no DNA sample taken? Certainly it's neither just (as a matter of simple justice) nor fair (vis-a-vis the convict lucky enough to have a DNA kit waiting for him on the outside) to exclude reconsideration of his case simply because the exculpatory evidence appears in the form of an eyewitness who's only now - two decades after the crime - willing to tell the police who's really guilty.
If your only standard for reopening prior cases is that it's unfair to convict the innocent, you need to explain why we shouldn't toss the final judgment rule entirely. Any other option strikes me as fundamentally unjust by your standards: Any limitation in the convict's ability to prove his innocence - i.e., limiting reopening to cases where there's DNA evidence - strikes me as arbitrary and fundamentally inconsistent with your standard.
So, you're saying if a new witness comes forward I can't reopen my conviction?
Not if that witness was available to you, certainly not. Every dumbass criminal has friends, girlfriends, relatives, etc. You can't just keep reopening the case over and over with a parade of people saying they saw you somewhere else.
A credible witness whose existence you were unaware of, whose testimony is genuinely exculpatory and not merely vague reasonable-doubt-y-ness? Well, then you have a decent chance.
Rob,
It's not enough to show that your trial was unfair in some technical respect; you have to show that there's some chance you're actually innocent.
I get that once convicted you move from presumed innocent to presumed guilty - got that. But you said, "...you have to show that there's some chance you're actually innocent." Wouldn't new DNA testing techniques quality as that "some chance?"
The court, in this opinion, found that if new technology is invented, it is incumbent on the legislature to change the laws to accommodate this new technology?
Well, not really. The defendant opted to NOT obtain DNA testing which was more reliable than the prosecution had used. This decision was made by his lawyer at the time of trial on the grounds that she expected it to confirm his guilt and preferred the 16% false-positive rate for reasonable doubt to the lower one available with the more sensitive test. That there is now an even MORE precise test is really irrelevant, because he didn't even bother with the older test. He had his chance at trial, elected against it, and lost.
It would be unfair indeed to refuse a defendant convicted in 1979 on blood-type evidence the chance to exonerate himself with DNA. But that wasn't this case, and there's no indication that any state is actually refusing that. That is, the unfairness you're worried about is merely theoretical at this point. And against that must be balanced the fact that felons have nothing to do but bombard courts with poorly-written motions for this or that, as anyone who has worked in the courts can tell you. (They also occasionally send me letters asking about getting patents)
jmo3,
You ask, "so, let me see if I understand this. If a five nines reliable PET scanning "lie detector" was developed, someone wrongfully convicted of a crime would be unable to use this evidence to obtain his release?" Exactly right (though I'm not sure what "five nines reliable PET scanning" means): Except in the most limited circumstances, you do not - as a descriptive matter - have the right to reopen your case to challenge it, even if some miraculous new technology was invented.
And this is as it has to be in a functioning judicial system. If your only standard is whether a person has been wrongly convicted, given that the only way to determine this for certain would be through this hypothetical new technology, every single prisoner in this great country must have the right to access this technology and challenge his conviction based on its results, right? And not only every single prisoner, but every convict roaming in the population at large, given the fact that the penalties of conviction are not limited to imprisonment.
Rob,
A credible witness whose existence you were unaware of, whose testimony is genuinely exculpatory and not merely vague reasonable-doubt-y-ness?
What if you were aware of the witness but they lied under oath due to credible threats from the real killer? I assume that would be enough?
Probably.
richao,
So, you agree that if a person was wrongfully convicted of rape in 1994, they should not be allowed to pay the $600 to have the victims panties tested to confirm that they were not the perpetrator?
jmo3,
Can you provide a link to a scientific article showing that the DNA in sperm on a pair of panties will survive for 15 years? Not just some of it, but enough that you can conclusively say "this person's DNA was never on those panties"? Can you provide a link to an article showing that if those panties existed, the chain of custody on them is strong enough that the panties would still be admissible? No?
Then no, he can't pay the $600 to get his conviction overturned. Because there's no possible test result that could exonerate him.
jmo3,
Rob has shamed me into trying to read the case, and I am trying. I promise.
This is what I have so far - a problem for Mr. Osborne (defendant/convicted felon) is that there was DNA testing by the prosecution and that testing provided statistical evidence pointing towards Mr. Osborne's guilt. (Here's a quote from the court - "The semen found on the condom had a genotype that matched a blood sample taken from Osborne, but not the other [defendants]. Osborne is black and 16% of black individuals have such a genotype.")
So the prosecution's DNA test was not conclusive, but it did implicate Mr. Osborne. There was more elaborate testing available but the defense attorney chose not to request any further DNA testing.
I got stuck there.
Tim
So, you agree that if a person was wrongfully convicted of rape in 1994, they should not be allowed to pay the $600 to have the victims panties tested to confirm that they were not the perpetrator?
Well, if he admitted to the sex at trial but claimed it was consensual, why should he be allowed to?
You should not read this opinion as saying that nobody, anywhere, will ever have a post-conviction right to DNA testing. It is possible that someday, some fact scenario will arise where SCOTUS thinks the state has violated due process by unreasonably denying a convict access to evidence. You should read it as saying that Alaska's procedures for deciding these questions have reached an acceptable result in this case.
Greg,
The victum testified that she was rapes the night of January 15, 1994. She ID's the defendant in a lineup and he is convicted. The DNA can prove that the semen on her panties is, to a 99.999% certainty, not the defendants.
The DNA Fingerprint Act of 2006 provides for the collection of DNA from individuals "arrested, facing charges, or convicted" of federal offenses. It is possible that the DNA collected from the panties will match the DNA of another person.
Should the innocent man be held in jail while the known guilty party is on the streets?
jmo3,
DNA collected last week can prove, to a 99.999% certainty, that it's not the defendant's. (Which means that there's a 1 in 100,000 chance that he is guilty.)
DNA collected 16 years ago? Maybe not.
Now, when you throw in that 14 years ago he had the chance to use a highly discriminative test on the DNA, and passed on that chance (because his attorney was rightfully afraid that the test would come back positive), his case gets weaker. Then throw in that the jury didn't find him guilty of attempted murder, despite the fact that he shot the woman in the head and piled snow over her body.
Why didn't they find him guilty of attempted murder? My guess would be because the prosecution's DNA evidence was only 84% likely. Now, if they'd done the test, and it came back that there was a 99% chance he was the person? Well, then , he could have ended up with a lot more than 24 years in jail.
Are we going to let the prosecution re-try him for attempted murder if the test comes back positive? No?
Then it's proper to deny him a chance to "prove" he's "innocent" now.
The FBI's CODIS system contains the DNA profiles of nearly 5 million people. Retesting the DNA from a rape kit can not only result in the freeing of the guilty, but if a match is found the real perpetrator can be identified and hopefully apprehended.
http://en.wikipedia.org/wiki/Combined_DNA_Index_System
From Alito's Concurrence:
“[F]orensic DNA testing rarely occurs [under] idyllic conditions. Crime scene DNA samples do not come from a single source obtained in immaculate conditions; they are messy assortments of multiple unknown persons, often collected in the most difficult conditions. The samples can be of poor quality due to exposure to heat, light, moisture, or other degrading elements. They can be of minimal or insufficient quantity, especially as investigators push DNA testing to its limits and seek profiles from a few cells retrieved from cigarette butts, envelopes, or soda cans. And most importantly, forensic samples often constitute a mixture of multiple persons, such that it is not clear whose profile is whose, or even how many profiles are in the sample at all. All of these factors make DNA testing in the forensic context far more subjective than simply reporting test results . . . .” Murphy, The Art in the Science of DNA: A Layperson’s Guide to the Subjectivity Inherent in Forensic DNA Typing, 58 Emory L. J. 489, 497 (2008) (footnotes omitted).
That is all true. And it's something, Megan, that you and many of your commenters have ignored in overwrought posts about how we're not letting people "prove" their innocence.
Greg,
If that's the case then DNA shouldn't be admissable as evidence. I mean if it's so unrealiable...
I'd agree, except it's still better than the default level of evidence, eyewitness testimony.
jmo3,
All human things are imperfect.
All of them.
There are no perfect tests, there are no perfect judges, there are no perfect laws, there are no perfect juries.
The demand for perfection is the demand to do nothing. Which leads to the highly imperfect world where women get raped, beaten, shot, left for dead, and nothing happens to the perpetrators.
The question is not "is this always correct?" because the answer to that is always going to be "no". The question is "is this an improvement over what we're doing now?"
DNA testing is an improvement over other techniques. It is not the "God Weapon" against crime, or against failure in the justice system.
I am sure there are innocent people behind bars. I am sure that is wrong.
I am sure that, because of the protections of our criminal justice system, there are guilty people who've escaped punishment for their crimes. I am also sure that there are innocent people who have been robbed, raped, and murdered by guilty people who were set free by our justice system.
I think that is wrong, too. Do you? Or do you live in a safe enough neighborhood that you don't have to worry about those criminals?
Do yourself a favor. End the tunnel vison, and try to see the whole situation.
Somehow I doubt Alito would rule DNA inadmissible.
Greg,
Can I get your help obtaining the release of all those wrongly convicted by the notoriously unreliable DNA evidence?
Or think of all those fathers forced to pay child support based on those dubious paternity tests.
jmo3,
Sure. Show me the better test we can use, and I'll strongly advocate using it.
But until you come up with that test, I'm still going to think that a jury verdict is at least as good, in general, as the results of DNA testign on 20 year old crime samples.
Neither are perfect.
Megan,
You asked: Okay, can some legal genius explain to me, using small words and maybe some charts, why denying convicted felons the right to DNA tests that might prove their innocence is not a gross miscarriage of justice?
Instead of trusting the OTB guys to accurately report the case, you should have taken a look at the actual opinion. Because Alito answered your question:
When a criminal defendant, for tactical purposes, passes up the opportunity for DNA testing at trial, that defendant, in my judgment, has no constitutional right to demand to perform DNA testing after conviction.
He's guilty. He knows he's guilty. When an honest test result would have harmed him, he declined to be tested. Now that he can't be hurt by it, he wants to be tested, in the hopes that the test will be screwed up, and he'll go free.
This was the right result.
DNA testing is just a sort of factual evidence. As other's have noted, it's not perfect because the lab may screw up the testing of genetic material that may have been misgathered and the relevance of whose presence at the scene may be argued.
Factual matters are not subject to appeal. You can appeal the trial judge's interpretation of the law, but not the "trier of fact's" (trial judge or the jury, as the case may be) determination of facts. You get one chance on that.
If DNA results were like God stepping down and saying, "Hey guys, you got it wrong," it may be different. But in fact but you need to take the DNA results and evaluate them with a lot of other facts to come to a result. Was the chain of evidence tight? Did the sample degrade? Could his twin brother have done it? Did she have sex with someone else that night who could have done it? You're back to retrying the facts, which you only get to do once.
I think that when people are let off on DNA test results in some cases it's the prosecutor being nice and asking for an early release, and in some cases the defense attorneys can frame what is a factual matter as a legal mistake by the original judge. It can get a little fuzzy at the boundaries.
You're back to retrying the facts, which you only get to do once.
From what Rob said, that's only the case if no new evidence is available. I can only assume that if a witness admitted to lying under oath, because of credible threats from the real killer - the defendant would be allowed a new trial?
Think of it this way. Sunny von Buelow is dead and Dershowitz losses the case and Claus goes to jail for 25 to life. 20 years later a new technology is invented that allows Sunny to emerge from her coma, she says "No,no Claus didn't do it I was a fool and tried to commit suicide."
The DNA is like a witness in a coma who is unable to testify. If new technology allows it to speak, it should be heard.
Think of it this way instead. After a murder conviction, someone may come in to confess to the crime, claiming that they did it, and their conscience won't let them go on until they clear the wrongly convicted person. Or someone claims that the murder weapon is now found---on the property of someone else who had motive and opportunity!
In your world, this apparently would cause us to revisit the prior prosecution. But in that world, you would find a large spike in confessions and sudden evidence discovery, since convicted people, and those who care about them, would now have an incentive to get a second bite at getting the incarcerated people off by producing new "evidence" that, at trial, would surely have been very relevant.
But the prior conviction would make it impossible to try the new "confessing" party or the motive & opportunity party whose property harbored the murder weapon, so that person is insulated from conviction for the crime. While the convicted party now has a reasonable shot at walking since we must review his case again, employing reasonable doubt standards.
At least 44 States allow post-conviction DNA testing - I've read some reports that 47 do. One of the ones that doesn't is MA, so you can only imagine that will be corrected if people complain loudly enough.
By not making it a civil right, you allow states to decide how and when the testing is done. This prevents a flood of frivolous demands from drowning out the ones that have more likelihood of proving innocence.
It's interesting that I haven't seen (though I admit I did skim) any mention of the actual case that was being decided on, which gives some insight into why the court ruled he had no entitlement. The guy didn't even claim to be innocent. He said that a DNA test would establish his "guilt or innocence." As Scalia points out, you'd think he'd say it would "establish his innocence." If the prisoner is not even willing to swear to his own innocence, I see an excellent reason not to provide him with a DNA test. It's just asking for a deluge of guilty people trying to game the system and raise costs.
If the circumstances were different, then there might be a stronger argument that justice really does demand this man be given a DNA test. There is a good argument that constitutional principles demand all prisoners meeting certain conditions be given a DNA test on demand. But saying that all prisoners, regardless of whether they claim innocence, have an inalienable right in all cases across the nation, beyond the reach of the legislature, seems a tad excessive.
"But the prior conviction would make it impossible to try the new "confessing" party or the motive & opportunity party"
Pardon my ignorance - but why would It be impossibe to try them?
It wouldn't. The defense would have a solid argument for innocence, but it's still possible.
Glad you brought this up because this decision is a travesty, and I write this while sitting in the prosecutor's office where I work, so I know a little bit what I'm talking about.
The right to post-conviction exculpatory evidence - e.g., not just evidence that might have helped you make your case, but which can actually prove your innocence - is cut and dry by Brady and Giglio (those are two seminal Supreme Court precedents). This should have fallen clearly within that line of cases.
For Roberts to say "the legislature's got it, no need for us here" is disingenuous. The legislature may be doing a fine job, but that's not excuse for the Court to pass on the question - they could have easily recognized the right and then concluded that the process currently being pursued by the majority of states is an appropriate method for safeguarding that right considering the backlog of cases and the obvious restraint on resources. The reason Roberts did not do that is because very many states are not pursuing this process at all. To recognize the right would compel them to beging to institute some sort of process by which prisoners who did not have access to DNA evidence at their trial could get their evidence reviewed.
You can compare it to every single other civil right in existence - when Gideon was decided all but about 7 states already had a right to counsel in felony trials, so just like in this decision, it wasn't about compelling states to do something they weren't doing. Still, Gideon was important precisely because some states were not providing it and never were going to provide it. It is the same today with DNA evidence. Many states, including where I am practicing, have instituted a system to process old DNA evidence. Some have not. Today, Roberts validated those states' failures.
Roberts' subterfuge can also be seen in the facts of the case which they chose to hear on this issue. Per the Kennedy and Alito concurrence, a DNA test had been offered to the defendant at the trial, but his attorney turned it down because he thought it would prove his guilt. The man was convicted in the face of overwhelming evidence, including a very detailed confession he later retracted. It's a crock that the Court would even hear such a case and the only reason is that it makes it easier for the Chief Justice to get the swing vote justices to agree that there is no need for a post-conviction DNA test.
Per the Innocence Project, this constitutional issue is not about men like the one in this case, but about the people who were convicted on flimsy evidence - often only one quick eyewitness identification - and for whom DNA evidence was not available at trial for technological reasons. To choose a case that is not representative of the issue at stake is dishonest, but given the Chief Justice's track record, sadly to be expected.
This is all sad, especially considering the arguments we are about to have over the Supreme Court and "activist" judges. Roberts just broke with a firm line of precedents, but as pointed out above, he is the king of overturning precedent without saying so. Scalia even gave him a lashing for it once in a concurrence he got so fed up with it.
Finally, for those (obviously non lawyers) asking about which text contains this right, it is called the due process clause. What does due process of law mean if not that the state cannot prevent you from proving your innocence by running some now simple tests on evidence they have in their possession?
It's really a sad day for the Court.
Vermando,
You sir, are a fraud.
And not even a very good one.
The right to post-conviction exculpatory evidence - e.g., not just evidence that might have helped you make your case, but which can actually prove your innocence - is cut and dry by Brady and Giglio (those are two seminal Supreme Court precedents).
Brady was about pre-trial discovery, not post. any "prosecutor" capable of counting past 12 with his shoes on would know that. In fact, anyone who bothered to read the opinion knows that.
Go back under your rock, troll.
Greg Q,
From my quick review, it looks like Giglio is also a pre trial discovery case. Hmmm.
Tim in Portland
:-)
For Roberts to say "the legislature's got it, no need for us here" is disingenuous. The legislature may be doing a fine job, but that's not excuse for the Court to pass on the question
This really gets to the heart of the matter. In previous decisions the SCOTUS has looked to what the clear majority of states is doing as an indicator of the proper contemporary interpretation of "due process." Roberts' majority opinion turns this on its head by saying, "The majority of states has legislated X, therefore if we decided X we would be legislating from the bench." Can you imagine Brown v. Board decided on this basis?
But this is not nearly the most head-spinning SCOTUS decision I can think of. The prize there for me clearly remains Rehnquist's GE v. Gilbert majority opinion, which found that discrimination on the basis of pregnancy is not gender discrimination. (The fact that only women get pregnant becomes somewhat incidental in Rehnquist's analysis.)
Wow, Jud, you've managed to get it exactly and entirely backwards.
Those "justices" who've said "hey, a couple of States agree with us. So we're now going to force everyone else to do it our way, too" acted in an utterly illegitimate and evil manner, in complete violation of their Oath of Office. Roberts was right: The States are dealing with this, we see no reason why we could do better, therefore we're not going to interfere.
That's the statement of someone who understands he's a judge, not a super-legislator.
If there's no right to review of convictions outside the usual appellate process--and there's not, is there?--then I don't see how DNA testing would be some kind of magical exception.
I'll defer to your superior legal knowledge :-)
Now that's interesting. Do they ever tell the nature of the device or process being patented?
I'll take that as a nice way to segue to what seems to me to be an obvious question: It's been apparent to me for a long time now that lawyers and scientists, er, think differently. Not to be a booster for my side of the culture, but why are trials not conducted in a way that reflects the logic of science? Is there some reason for believing that a legal approach produces superior outcomes as compared to a scientific one? The original question - about permitting DNA testing - seems to be at heart a question as to why the scientific method is not employed. If I understand her correctly, that is.
I find this more than a bit troubling:
Really? You know this for a fact? If so, explain how you know?
Really? Are you really saying that the defendant didn't want the test? Or are you saying that the defendant's attorney didn't want the test? That, to me, seems to be a significant problem. Having known people who have been through the system, I submit that defendants don't always get the best advice from their attorneys; people who I know were innocent nevertheless accepting plea bargains because they've had the fear of God and hard time put into them. Bargains that later came back to haunt them in various debilitating ways.
SOV, you are right that it sucks when your lawyer does something you don't want her to do (or have doubts about) and it doesn't work out.
Unfortunately, the system doesn't work if you let everyone in prison have a do-over based on tactical decisions their lawyers make, so defendants (and civil litigants) are usually held to the decisions their lawyers make. Unfortunately, while there are certainly some wrongfully convicted innocents in jail, there are also a large number of people who (1) guilty and (2) willing to say pretty much anything to get out. If you let all of them have a new trial based on reasonable decisions of their lawyers, the system breaks.
Osborne's remedy for bad lawyering after the verdict is (1) an appeal based on ineffective assistance of counsel, (2) suing his lawyer for damages, and/or (3) a bar complaint. (Before or during the trial, he could have asked to fire his lawyer or complained to the judge). Unfortunately, those require that the lawyer's decision be wrong, not just that reasonable people could have gone either way.
Really? You know this for a fact? If so, explain how you know?
Because that's what his lawyer said when she testified about that decision during his appeal.
Which you would know if you bothered to read the case.
The attorney also testified that she had no recollection of the prisoner telling her he wanted to do the test.
Go read the case. See the evidence against him (which includes his partner in crime being the first person to finger him to the cops). His attorney did the best she could, and in the end saved him from an attempted murder conviction that he also should have received.
You don't get to have multiple trials, and pick the result most favorable to the defendant. You get one chance to make your case, then it's done.
Doing otherwise would be unfair to the victim of the crime. Who has a justice interest here, too.
Do they ever tell the nature of the device or process being patented?
Some do, some don't. Their mail is read (or can be read) by prison officials, so they can be pretty cagey. None of them have yet put up a retainer.
Not to be a booster for my side of the culture, but why are trials not conducted in a way that reflects the logic of science? Is there some reason for believing that a legal approach produces superior outcomes as compared to a scientific one?
This is a very important question that cuts across many areas of the law. The answer is that the goals of the law and the goals of science are different. Science is concerned (to simplify) with the truth. Science is inherently contingent, comfortable with ambiguity, and as patient as it needs to be. The trial process (again to simplify) is concerned with resolving disputes. It therefore does not have the luxury of deciding "I don't know." The truth is a part of justice; we want to get to the right answers. But we also have to reach them in a reasonably prompt manner, and we have to do so in a reasonably final manner so that everybody can move forward. That means that while science can wait decades to see if neutrino oscillation actually occurs, the courts need to wrap this thing up by the end of next year. We therefore have to make a decision based on the limited evidence we have, and we need to avoid constantly revisiting it, given that by the end of next year, there will be a couple hundred new cases that need resolution.
Legal rules are intended to balance the need for truth against the other concerns which go into "justice." The balance may not be set correctly, but the need to balance is inevitable. Science is, of course, welcome in the courtroom, but it's not the only player.
The essential distinction here is that convicts should have the right to raise the question of having a DNA test done in court and have a judge rule on it, but as the court ruled (and I think correctly) *not* have the right to *force* a DNA test whenever and however often they like.
Actually, given that you can't even interpret my words correctly, I think I might do just that. You said:
She was 'rightfully' afraid eh? I'll repeat, since you appear to be hard of understanding: how do you know this? Do go on . . . I'm absolutely fascinated with how you'll manage to duck next.
What a putz.
Because, you brainless twit, he's guilty as sin. His accomplice, who was caught with the gun that shot her, identified him as the rapist. Other witnesses testified that they got together, and went out on the right timeline to be the rapists.
She (correctly) thought he was guilty, and therefore figured that a more discriminating test would just make it more obvious to the jury that he was, indeed, guilty.
Does that make it clear enough for you, ScentOfDung? Is there something else I need to explain for you, probably using finger paints?
I hate to break this to you all, but a DNA test cannot "prove" innocence.
With the exception of rape.
All a negative DNA match proves is that the forensics unit could not find any DNA which matched the accused. That failure may or may not be explainable, may or may not mean a darn thing. But in the hands of today's American legal system, and our lawyers, it could establish so-called "reasonable" doubt. Then some tried and convicted guilty monster walks, and then sues and gets money to boot. Ant then you or someone you love might become his next victim.
We are all beset by loons, damnable loons.
In other words, you don't know, but were engaging in an obvious and insulting rhetorical flourish. We also now know that when you're caught out, you get abusive . . . and that it doesn't take much. Greg, before you pop off like that, it's usually a good idea to see if your audience is dumb enough to fall for it; odds are that if they aren't, they'll be insulted at your estimation of their mental capacity. As it is, all you've done is squander any sort of legitimacy with me. Since it's obvious that you don't care what I think, but only if I can be manipulated, I'd say you lost, badly.
We also now know that when you're caught out, you get abusive
Um, the person who ends its post with "what a putz" has permanently forfeited the right to complain about other people being abusive. So stop whining.
In other words, you don't know, but were engaging in an obvious and insulting rhetorical flourish.
Wrong again. I "know" that she thought he was guilty, because she testified so under oath. I "know" that he is guilty, because the evidence against him is such that no other conclusion is reasonable (including the fact that he testified, under oath, twice, that he was guilty).
This is my last post on this subject. Feel free to have the last word, and engage in whatever more dishonesty you wish to engage in. If you've posted a single thing here in good faith, you've done a remarkably good job of hiding that fact.
I've got a life, so I have better things to do that to waste my time on you.
Um, the person who says this first:
Is the person who is being abusive. You don't get to complain about someone hitting you if you rabbit punch them from behind; that's the mark of someone(did we need to any more confirmation?) who is just spoiling for a fight. A 'putz', btw, is Yiddish for 'fool', someone who, when asked how they know for a fact that someone is guilty on a thread discussing the exculpatory nature of DNA evidence goes off on a tangent about what other people think rather than actually address the question.
Since you say I have the last word here, don't bother to reply. The facts speak for themselves anyway. And they don't speak well of how you regard other people or how you treat them. I hope you learn from this that other people are at least as smart - or smarter - than you are, and that this is a bad tactic to try to pull on them.
Then again, you probably won't.