A lot of people are upset about yesterday’s Supreme Court decision in District Attorney’s Office v. Osborne holding that there is no post-conviction constitutional right to potentially exculpatory DNA evidence.
Not the Massachusetts Attorney General, however. Along with 30 other states, A.G. Martha Coakley signed on to an amicus (friend of the Court) brief urging the very ruling that the Court ultimately delivered. You can read the whole thing here (PDF) — that’s her name there on the third page. Here’s the summary of the states’ position:
INTEREST OF AMICI CURIAE
Forty-four states, in addition to the Federal Government, have enacted postconviction DNA testing statutes. Other states provide alternative rules and procedures for pursuing such testing. The Ninth Circuit’s broad right to postconviction DNA testing enforceable in 42 U.S.C. § 1983 actions undermines these effective and carefully-crafted state procedures, improperly overrides legislative judgments, and unnecessarily encourages federal bypass of state-law remedies. It also interferes with the finality of state criminal judgments and misallocates judicial resources by transforming federal district courts into routine arbiters of fact-specific DNA discovery disputes better entrusted to state trial courts.
SUMMARY OF ARGUMENT
Recognizing the importance of postconviction DNA testing, most state legislatures and the United States Congress have enacted comprehensive statutes that provide convicted offenders a meaningful opportunity to seek such testing in appropriate cases. Many of these state laws are modeled on the federal procedure set forth in 18 U.S.C. § 3600. Alaska and several other states provide reasonable non-statutory opportunities for testing. These state procedures allow convicted felons a fair opportunity for postconviction DNA testing while prudently enforcing limiting criteria that minimize wasteful and irrelevant testing. There is no legal foundation for the Ninth Circuit’s reading of the Due Process Clause to require a less discriminate procedure, enforceable in § 1983 actions, that would supersede this national body of legislation.
The availability of DNA technology does not justify federal override of state postconviction discovery procedures. DNA testing is not a crystal ball of guilt or innocence. It is, instead, a form of discovery the probative value of which depends upon the facts of any given case. In many cases, DNA testing after conviction would be a meaningless exercise. Even in seemingly meritorious cases, as the Ninth Circuit acknowledged, “there is a significant chance that the results [of DNA testing] will either confirm or have no effect on the validity of [a defendant’s] confinement.” Osborne v. District Attorney’s Office, 423 F.3d 1050, 1054 (9th Cir. 2005) (Osborne I).
The Ninth Circuit’s decision also misinterprets the Constitution’s limited application to state postconviction procedures and violates principles of federalism and judicial restraint. Legislatures, not the federal judiciary, should take the lead in evaluating the proper role for identification technology in facilitating collateral attack on otherwise final state judgments. Accordingly, a claim for postconviction DNA testing under § 1983 should not be cognizable where a state itself already provides a meaningful opportunity for such testing.
Shorter version: trust us. We can handle this.
christopher says
…usually confirm prevailing consensus. It seems that is what we have if 44 states have already provided for such methods. By this logic there’s no constitutional right to be Mirandized or have counsel provided to you, but they have been declared to be rights in order to effectively enforse the more explicitly listed rights. I must say I’m disappointed in Coakley; I thought she was fairly progressive. Besides what harm does it do to constitutionally mandate something the state is already doing anyway?
david says
Uh … really? Brown v. Board of Education? Even Marbury v. Madison was assuredly not conventional wisdom at the time.
christopher says
However, my understanding is that there were parts of the country moving toward integration (not busing – that’s not what the original case was about). The objectors, as is often the case, had the loudest voices. As for Marbury, SCOTUS was too new for anyone to really know where it fit in the constitutional structure, so there’s really nothing to check it against.
david says
But that’s a very long conversation. Short version: a lot of people had strong ideas about where it fit in the constitutional structure. John Marshall (Marbury’s author) was one of them, but a lot of people disagreed with him. There was no “consensus” as to what he thought — you can be sure of that.
<
p>Can you give some examples of cases that you think are both (a) among the “most respected” in SCOTUS history, and (b) confirmed prevailing consensus at the time they were issued?
christopher says
I do not claim that the concept originated from me. Where others have claimed this, I recall seeing Brown, Griswold, and Miranda cited as examples, as well as death penalty applicability cases the names of which escape me at the moment.
<
p>I agree that Marbury was not a product of consensus; the point I was making was at that early stage consensus of any type regarding the Court’s role had yet to gel.
hoyapaul says
<
p>West Coast Hotel Co. v. Parrish and NLRB v. Jones & Laughlin Steel come to mind. I’d say something like US v. Lopez was in the spirit of the times, though since I’m not a conservative I’m not sure I “respect” that decision. Bowers v. Hardwick was certainly in alignment with the prevailing consensus at the time, and it’s little surprise Lawrence v. Texas overturned Bowers only when the societal acceptance of gay rights had moved quite far.
<
p>You point about Brown is well taken, though I think it was an unusual decision in a number of ways.
farnkoff says
that doesn’t allow you to get DNA tests done.
Call it “the right of states to occassionally screw up and ruin innocent people’s lives without federal meddling”. Hands off our wrongfully convicted inmates- they’re ours!
markb says
<
p>Reuters.
tedf says
I think this was an easy case. Osborn admitted his guilt at his parole hearing, and he did not even ask the state courts to provide the evidence (namely, the STR testing) before turning to the federal courts. This hardly seems like the case that would justify a striking new extension of substantive due process, even if I were a big believer in substantive due process, which I’m not.
<
p>Echoes of Ben LaGuer, anyone?
<
p>TedF
david says
It’s not just a substantive DP case. There was a big procedural DP component. Souter dissented on that ground alone; the other 3 dissented on both. The four of them apparently thought it was a relatively easy case — just in a different way than you did.
<
p>You seem concerned that Osborne might be guilty. But so what? Osborne’s guilt or innocence doesn’t really matter that much, does it? The point is that the door is now pretty much slammed shut for folks who might actually be innocent.
tedf says
You’re right–I failed to note the procedural due process aspect of the case. That’s how worked up I was about the sexier substantive due process stuff.
<
p>Justice Souter’s dissent is interesting. He agrees that the state’s two strongest arguments are the arguments I noted in my comment: the admission of guilt, and Osborn’s failure to request the evidence. It’s hard to know what to make of the second issue, since the majority and Justice Souter disagree about whether Osborn in fact did request the evidence, and I haven’t seen the record. But the first point seems pretty strong to me. I don’t see the force of Justice Souter’s point that a sworn admission of guilt doesn’t count if you make it in order to improve your chances of parole.
<
p>On your point about the effect of this decision on the innocent, I think you overstate things, since as I understand it, in the vast majority of states provide either a statutory or constitutional right to obtain DNA evidence post-conviction. Also, it’s just got to be the case that a person who admits he’s guilty has much less right to challenge his imprisonment post-conviction. (This would be clearer in the Osborn case if he had pleaded guilty instead of just admitting his guilt in a later hearing).
<
p>TedF
mr-lynne says
… that a figuring that all guilty pleas are based on actual guilt would be to ignore reality. Making such a plea for other reasons, since it really dos happen in reality, should count for something in the considerations post-conviction.
tedf says
Judicial proceedings are not a game. You don’t get to swear that you committed the crime when it suits your purpose and then claim that you didn’t commit the crime when it suits your purpose. Perhaps a better outcome in this case would have been for the Court to focus more strongly on the admission of guilt at the parole hearing, which, the more I think about it, seems like a persuasive and correct ground for dismissing the DNA claim out of hand.
<
p>TedF
mr-lynne says
… but plea bargaining can be strategic. The very fact that they can be negotiated indicates a mark against using them as 100% reliable indicator of actual guilt.
mr-lynne says
Commenters on other blogs have pointed out that this may not have been the best case to test this kind of an issue because of the explicit refusal of the original evidence by the defense previously as well as the original guilty plea.
<
p>The question, I think, is one of ‘when is revisiting ok’… or more specifically, ‘when is it ok for one side to revisit.’ The previous plea and disposition to DNA evidence can lead one to lean toward the notion that ‘he had his shot’ and that an ‘extra shot’ presents a ‘lopsided’ fairness in what is essentially an adversarial contest.
<
p>I think this is wrong on two points.
<
p>1) ‘Fairness’ in getting to the truth should outweigh any sense of ‘adversarial fairness’.
<
p>2) The nature and quality of evidence can change with time such that new (potential) new insights into the truth can become available that were not before.
<
p>It seems to me that it is reasonable to assume that guilty pleas happen for a variety of reasons, not the least of which is the quality of the evidence before the prosecutor. Not having looked in depth at the details specific to this case, it nevertheless seems to me that it’s entirely reasonable that a new, previously unavailable, test can create a situation where something not worth looking at for the defense can turn into something that is worth looking at.
<
p>No lawyer here, but it seems to me that one of the underlying misconceptions in the system is that the quality and character of evidence is established at trial and is immutable after that. But we know from just living in the 21st century that the quality and character of evidence can change post-conviction simply because we keep getting better at looking at it. Since quality and character of evidence plays such an important role in conviction, I think it should play an equally important role in evaluating post-conviction motions.
<
p>If you’re satisfied from a process point of view that rules are set up to give everyone ‘their chances’ at the adversarial game and that this is the main point of due process, I guess the original guilty plea along with the refusal of the DNA in the original case should suffice for ‘fair’. If, like me, the fairness that due process is meant to address isn’t merely a chance at ‘fair rules’ but rather a ‘fair chance’ to present an alternative ‘hunt’ for ‘the truth’, then this was a miscarriage. For my part, the point of revisiting evidence should be about ‘rule fairness’ so much as about the pursuit of the truth.
<
p>Mind you, this pursuit of truth in no way invalidates the ‘fairness’ of an adversarial system where each side ‘get’s their chance’. That is, this doesn’t represent an unfair ‘extra chance’ for one side. This is because it is in everyone’s interest that the results of the contest conform to the truth of what happened as can be fairly discerned and judged.
<
p>I submit that this best represents our instincts for fairness. As an analogous example, I’d point out that people erupt in anger at a football game won on a blown call that can’t be ‘technically’ challenged, because whatever the rules are, the fact that the outcome of the game didn’t match ‘the truth’ violates our most fundamental sense of fairness, regardless of each team’s having had ‘their shot’. Even the beneficiary of such a call often evaluate it as ‘lucky’… not based on the game but on the error.
<
p>Thus, I’m not as concerned with regard to the ‘weight’ of the previous plea or earlier refusal of evidence because both of these acts could have been reasonable acts based on the previous quality of evidence. If the quality of evidence can change enough to cast enough doubt on the circumstances of ‘truth’ established in the previous case such that it would be reasonable to allow a convict to reassess such evidence, it would also be reasonable to conclude that, had such an assessment been available before, the previous actions of refusal and the plea might have played out substantially differently. As such, it is reasonable to weigh the opportunity for qualitatively better evaluation of the evidence (and possibly a qualitatively better assessment of the truth) higher than the ‘weight’ of the original plea and refusal of evidnce,… based on my assertion that the bias should be on truth before ‘procedural fairness’ (and relying on the executive – prone to political pressures – to be the escape valve for these situations is a cop out).
mr-lynne says
I should really get editors when I get wordy (sigh).
<
p>Typo correction and slight clarification:
<
p>”For my part, the point of revisiting evidence shouldn’t only be about ‘rule fairness’ so much as also be about the pursuit of the truth, which should carry more weight.”
markb says
<
p>How many bites of the apple do you give an accused person? How many appeals, new trials? If the pursuit of the truth trumps fairness and the form of the law, does everyone get an endless supply of chances? Under our system of laws, we have rules for when a second chance is appropriate, and where the limit falls. What are you going to do – best of three? Of five?
<
p>No doubt there are innocent people in prison right now. Would you give every prisoner another trial in hopes of finding the few innocent? There is a difference between a sense of justice and a justice system. We say “the perfect is the enemy of the good” for just these reasons. If you keep changing the system in search of perfection, you will only do harm in the end. Sometimes, more virtue is not a good thing.
farnkoff says
I say if there’s DNA, test the dang DNA. Put some of our biology majors to work. If it doesn’t match, throw out the conviction.
mr-lynne says
… that everyone should get a new trial. What I said was that the evaluation of the post-conviction motion should err toward ‘finding the truth’ fairness vs. ‘procedural-he-already-got-a-fair-shot’ fairness. This ruling seemed to come down the other way, mistakenly believing that the system’s pursuit of fairness should be more procedural than factual.
<
p>That being said, you evaluate the motion based on a fair reading of the facts and evidence, just like you’d think. This isn’t a call for an expansion of ‘second chances’, it’s a call for potential truth finding (the potential for which would have to be evaluated during the motion) over mere procedure. I’m not suggesting that the evaluation should always go the defendants way.
ryepower12 says
<
p>Or, perhaps, the shorter Mr. Lynne:
<
p>If the guy in prison is not guilty… the guilty person’s still out there. If that’s the case, however unlikely it may seem in the average case that could come up, it’s absolutely in the public’s best interest that DNA evidence be checked and rechecked, lest we leave extra murderers and other criminals on the loose.
john-beresford-tipton says
The slant of what passes for law enforcement and justice is to close cases. “Arrest the usual suspects!” goes back a long way. We’ve all seen the stories of police perjury and evidence tampering, prosecutory and judicial misconduct in the media. What we see is only the tip of the iceberg.
<
p>Why is it rampant through the justice system? It isn’t done to be “mean”. Personnel reviews want arrests and convictions. There is no positive review for finding evidence that proves the suspect innocent as there is for making an arrest, successful prosecution and well orchestrated trial.
<
p>So, what would happen if convictions were overturned for a large group of innocent people? Many minorities and poor people that get the lowest of public defender talent may need to be released. I doubt if states want the bad publicity, costs and associated problems with the false convictions being thrown out.
<
p>”Law enforcement” and “justice” are misnomers.
<
p>