My friends will tell you that I love a good legal debate (even though I am not a law school grad). I love the intricacies of the arguments, the evaluation of evidence, and the importance of precedence. I also love the sound and rhythm of words like "jurisprudence," "preponderance of evidence," "substantive vs procedural," "pejorative meanings," and “penumbras of interpretation.”
Yesterday evening, while stuck in the usual, bad traffic along Alameda, I was delighted to hear a reading of the transcripts from a recent Supreme Court case on NPR. The case involves William Osborne of Alaska who, in 1993, was convicted of raping and beating a prostitute. Prosecutors did use DNA evidence, but the methods of DNA testing 16 years ago were only about as good as a blood test. DNA testing now is so accurate, that the odds of two unrelated people sharing the same DNA are one in several trillion, explained NPR judicial correspondent Nina Totenberg. As such, Osborne sought a federal appeal to have evidence from his trial tested under new methods and compared with his DNA. The federal appeals court ruled in Osborne's favor but the State of Alaska has now appealed this ruling to the Supreme Court. Does the State of Alaska not think that DNA evidence is reliable? Do they not trust it? No, they trust it. But the state of Alaska contends that Osborne was given a fair trial and given access to DNA testing available at the time. Not only that, but his victim identified him, and he also admitted guilt before a Parole Board in 2007. All of his deadlines for appeals have expired and essentially Osborne has exhausted all of his options under due process of the law. And that granting this post-conviction examination of evidence would place an undue financial burden on the state if other convicts were allowed to apply for the same process and essentially “game” the system.
To hear what I heard on NPR: http://www.npr.org/templates/player/mediaPlayer.html?action=1&t=1&islist=false&id=101277033&m=101329681
So, by the time this report has ended, my car was still creeping along between 4th Street and Rio Grande. With time to kill, I began to wonder: what’s really at stake? Alaska is among 6 states in the U.S. that does not allow convicts to access DNA testing AFTER a conviction has been made. But why not? Doesn't the Constitution guarantee all citizens the right to confront and cross examine evidence and witnesses brought against them? Yes, it does under a little clause called due process in both the 5th and 14th Amendments. No person shall be…deprived of life, liberty, or property without due process of the law. But Alaska feels they gave Osborne due process. Essentially, they are worried about the finality of criminal proceedings. And that makes sense because if convictions are not final, then defendants can file an unlimited number of appeals, thereby backlogging the courts. I agree we definitely do not want that to happen, because then all citizens might lose access to the judicial process to which they are entitled. On the other hand, the due process clause does not invoke a time-frame. And in the end, due process ultimately obligates the courts to establish guilt or INNOCENCE based on evidence. DNA testing serves simultaneous roles: to release the innocent (wrongly convicted) AND to capture the guilty. There are some 232 recent cases which have been overturned thanks to re-examination of DNA evidence, as well as the case of Ronald Cotton, who was exonerated of rape 11 years after his conviction. The victim in that case identified Cotton and was more than 100% sure she had accused the right man. DNA evidence showed her real attacker was actually a man named Bobby Poole, who looked somewhat similar to Cotton. If modern DNA testing had been around when Ronald Cotton was arrested, then Poole would not have been able to roam free for 11 years committing six more rapes. If Osborne is innocent, then who has been roaming free the last 16 years?
In the end, the question I am left to grapple with (until the Supreme Court rules on this case) is the same question Justice Kennedy posed: Do you think there is a right to establish innocence based on new evidence after conviction? Lawyers for the State of Alaska ultimately responded that they did not believe there was any such Constitutional right, but I’m not sure I agree. I do open this question up to debate here.