Supreme Court's DNA Deliberations, by Mary Neal

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The United States Supreme Court heard arguments this week and is now deliberating on whether prisoners, including death row inmates, should be allowed to do DNA testing on evidence that was used to convict them for capital crimes. Numerous people who presently await their turns in America's death chambers were convicted prior to the availability of accurate DNA testing. Many prisoners have requested the opportunity to prove their innocence rather than serve lengthy prison terms for crimes they claim to be innocent of committing or before their executions, as the case may be. One prisoner who was denied DNA testing is William Osborne, whose case has now reached the Supreme Court. He was convicted in Alaska, which is one of only six states that does not provide for post-conviction DNA testing. The Supreme Court is thinking about it.

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Supreme Court closely divided on felon's right to DNA test http://www.miamiherald.com/news/politics/AP/story/929178.html

by Michael Doyle
McClatchy Newspapers
March 2, 2009

WASHINGTON - Supreme Court justices appeared closely divided Monday over claims by an Alaska inmate that the Constitution guarantees a right to post-conviction DNA testing. The court's most conservative members are clearly aligned against inmate William Osborne, who was convicted of assaulting a prostitute known only as K.G.

The court's most liberal members sounded sympathetic to expanded testing. At most, the odds appear to favor a narrow decision. Forty-four states already permit convicts to demand DNA testing, though the states apply different requirements.

Since 1989, 232 convicted felons have been exonerated because of DNA testing. "All they're getting is a darn test," attorney Peter Neufeld, co-founder of the Innocence Project, told the court Monday morning. "And they're staying in prison while they get that darn test."

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Excerpts from AP - ANCHORAGE, Alaska
February 28, 2009

The state of Alaska argues that Osborne got a fair, error-free trial, and that he is trying to use nothing more than a claim of innocence to reopen a case in which there is ample evidence of his guilt. (Not nearly a good enough reason to test.)

Last year, the 9th U.S. Circuit Court of Appeals ruled in Osborne's favor, finding it was unconstitutional to deny him access to the test.

Alaska seeks to reverse that federal ruling. The state says if that if the ruling is allowed to stand, "then any state or federal prisoner would gain a federal constitutional right to reopen his case merely by asserting that new forensic-science technologies might establish his innocence." That, they say, threatens the ability of the states "to process post-conviction challenges in an orderly fashion."

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To paraphrase Alaska's stance: "Think of the paperwork - chaotic! Just kill 'em or let 'em rot in jail as the verdicts read. They had their trials. What's innocence got to do with it?"  This writer is painfully aware that some of our courts are less interested in justice than they might be about a wrinkle in their robes, but never expected any to come right out and say so. It would appear that Alaska’s position is that post-conviction DNA testing is simply not expedient. This writer is reminded of a famous quote:

Cowardice asks the question, 'Is it safe?'

Expediency asks the question, 'Is it politic?'

But conscience asks the question, 'Is it right?'

And there comes a time when one must take a position that is neither safe, nor politic, nor popular but because conscience tells one it is right.

~ Martin Luther King, Jr.

Thomas Arthur is probably one of the condemned persons who would use the opportunity to test his DNA evidence, if it is still available. He has been asking to prove his innocence with DNA evidence in his files for some time, but the answer is always "no." Arthur was scheduled to die by lethal injection last July 31, but he was granted a stay of execution by Alabama's Supreme Court. Arthur has always maintained his innocence, and says he was not liked in the Alabama town where he went to live with his mother because he was an outsider with long hair. Another man even confessed to the murder Arthur faces death for committing, but that did not help Arthur. (Paraphrase: Arthur had his day in court. New evidence, including DNA testing must not interfere with criminal justice. The important thing is keeping criminal justice to an "orderly fashion," as the Alaska court said.)

Many prisoners who proclaim innocence were excited to learn decades ago that there was a DNA test that could exonerate them, especially death row inmates. But they usually lack funding for their tests, and surprisingly, district attorneys are generally opposed to post-conviction testing, regardless of who pays for it. Innocence Project reports processing thousands of prisoners' requests for DNA testing.

Hopefully, our High Court will decide that Alaska's anticipated inconvenience of meeting administrative challenges entailed in allowing prisoners DNA testing will be considered worthwhile to preserve justice and any SINGLE prisoner's right to life and liberty. Potentially innocent people should not be sacrificed to keep court processes neat and "orderly." Neither should the criminals go free while others are blamed and punished for their crimes. (Didn't Alaska judges go to Sunday School?) We should not move from "law and order" to "order and law."

Whereas thousands claim that they would be freed by DNA testing, other prisoners who declare their innocence, like Troy Davis on Georgia's death row, have no evidence in their files for testing. In fact, some prisoners who think they have evidence for DNA testing may not actually have any available. Some of the 232 people who have been exonerated through DNA testing since 1989 were imprisoned for decades prior to release. Laws differ from state to state regarding how long criminal evidence has to be maintained. While the High Court is deliberating the constitutionality of post-conviction DNA testing rights, it seems appropriate to also establish a national standard for how long criminal evidence must be maintained. See this news:

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Grits for Breakfast - August 10, 2008

Evidence retention failures thwart pursuit of innocence claims

On Tuesday, Texas witnessed its 34th DNA-based exoneration since 2001, this time again from Dallas County which is one of the only jurisdictions in Texas that saved old biological evidence. Such evidence only exists in about 10% of violent crime cases anyway, so DNA alone won't help most innocent offenders. But what about cases where DNA evidence existed but wasn't preserved?

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Scores of people and organizations are "abolitionists," who argue against the death penalty, but over 60% of Americans are said to favor keeping capital punishment. Recent cases, however, are causing many Americans to reconsider their stance on executions, not because they object to capital punishment on principle, but because they have come to understand how likely it is that innocent people have been killed by the state. They further recognize that other potentially innocent lives hang in the balance while criminals walk free among us.

The main reason why people are withdrawing their support for capital punishment is because there is an apparent aversion on the part of the criminal justice system to reevaluate closed cases when new post-conviction evidence becomes available, like in the case of Troy Davis. Davis was condemned to death for the murder of a Savannah, Georgia police officer over 16 years ago purely on witness testimony. Like 90% of convictions, Davis' case has no DNA evidence to support his claims of innocence at trial. Yet, over the ensuing years, seven of the nine witnesses who testified against Davis have recounted or tainted their testimony, and of the two remaining witnesses, one is said to be the real killer and the other is that man's best friend. See more about Troy Davis here:

http://www.huffingtonpost.com/barry-scheck/troubling-questions-surro_b_137514.html

Perhaps those inmates who clamor after the opportunity to have post-conviction DNA testing should give a care to the Alaska court's prediction that widespread testing could lead to chaos. If the Supreme Court decides that imprisoned citizens must have every right to prove their innocence as hoped in Osborne's case, immediate attention needs to be directed to improving the nation’s crime labs. It is important to ensure that the anticipated increased demand for DNA testing services does not result in inefficiency in crime labs leading to false test results. Consider what happened at Detroit’s crime lab last summer, as reported in the following article:

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Detroit police lab closed: Audit found serious errors in many cases

International Herald Tribune - Sept. 26, 2008

DETROIT:  The Police Department here shut down its crime laboratory on Thursday after an audit uncovered serious errors in numerous cases. The audit said sloppy work had probably resulted in wrongful convictions, and officials expect a wave of appeals in cases that the laboratory processed. . . . . " We do not want any of our activities to result in someone being imprisoned that doesn't belong there," the Wayne County prosecutor, Kym Worthy, said at a news conference with Cockrel and Barren. Worthy said the mistakes also might have let violent criminals remain at large."

Article link: http://www.iht.com/articles/2008/09/26/america/26detroit.php

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Unfortunately, some of the states that presently have post-conviction DNA testing available only allow the right to test for death row inmates – not people sentenced to life in prison or lesser sentences. The best evidence to support making post-conviction DNA testing available to every prisoner is presented in the following letter from six exonerated men to Governor Riley in Alabama. They wrote in support of Thomas Arthur being granted the right to test the evidence in his file before his scheduled execution last year. All six of these innocent men might have been dead today had they not been granted the right to DNA testing, which preserved their Constitutional right to life, liberty, and the pursuit of happiness.

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http://www.innocenceproject.org/docs/Riley_Arthur.pdf

December 20, 2007

By Facsimile and Overnight Mail

The Honorable Bob Riley

Governor of the State of Alabama
State Capitol
600 Dexter Avenue
Montgomery, AL 36130

     Re: Thomas Arthur

Dear Governor Riley:

Over the last several days, you have heard from hundreds of people in Alabama and across the nation asking you to order DNA testing for Thomas Arthur, who is on death row in Alabama. We write to you today because we were all convicted and sentenced to die for crimes we did not commit, only to be exonerated years later through DNA testing.

In each of our cases, juries heard evidence they believed was overwhelming and proved our guilt beyond doubt. Prosecutors, judges or governors rejected our initial pleas for DNA testing. Each of us sat on death row, wondering whether the truth would come out before we were executed. And each of us was spared when the irrefutable science of DNA proved that we were innocent.

We do not know whether Tommy Arthur is guilty or innocent. None of us has met him, nor have we reviewed all of the briefs in his case. We do know it’s entirely possible that DNA testing could provide compelling proof of his guilt or innocence – and we know, based on our own experience, that when science can reveal the truth, DNA testing must be conducted.

If we had never been granted DNA testing, we might not be alive today. Few people have been in Mr. Arthur’s position, but we have – and that’s why we’re appealing to you to order DNA testing in this case. His execution has been delayed by the U.S. Supreme Court for other reasons, leaving plenty of time for DNA testing to be completed if you order it now.

Any of us would welcome the opportunity to talk with you or your staff about our cases – and about the DNA testing that proved our innocence and kept the state from carrying out an irreversible miscarriage of justice. You or your staff can contact the Innocence Project attorneys who have been in touch with you about Mr. Arthur’s case to arrange a discussion with any of us.

Sincerely,

Rolando Cruz - Exonerated though DNA testing in 1995 – a decade after being sentenced to death in Illinois

Charles Irvin Fain - Exonerated through DNA testing in 2001 – more than 17 years after being sentenced to death in Idaho

Ray Krone - Exonerated through DNA testing in 2002 – a decade after being sentenced to death in Arizona

Ryan Matthews - Exonerated through DNA testing in 2004 – five years after being sentenced to death in Louisiana

Curtis McCarty - Exonerated through DNA testing in 2007 – 21 years after being sentenced to death in Oklahoma

Earl Washington - Exonerated through DNA testing in 2000 – 17 years after being sentenced to death in Virginia

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The Innocence Project sent the following mailing March 2, 2009:

DNA Testing and the U.S. Supreme Court Innocence Project

Co-Director Peter Neufeld argued today before the U.S. Supreme Court that prisoners have a constitutional right to DNA testing that can prove their innocence. The Innocence Project represents William Osborne, who is seeking DNA testing on evidence that could prove his innocence of an Alaska rape for which he says he was wrongfully convicted in 1993.

Alaska is one of six states in the U.S. without a law providing post-conviction DNA testing access, and has repeatedly denied Osborne DNA testing despite its agreement that testing could definitively prove innocence.

The Innocence Project is offering to pay for DNA testing in the case. "It is absolutely undisputed in this case that there is a DNA test that Mr. Osborne seeks that could conclusively prove his actual innocence."

Neufeld said in court today. "This is the very first case litigated to our knowledge anywhere in the country where the prosecutor concedes that a DNA would be absolutely slam-dunk dispositive of innocence, but doesn't consent to it."

In an editorial this morning, the New York Times agreed that “due process requires the state to allow the testing to occur.”

Visit our website for today's transcript, briefs from both sides and other resources in the case - including media coverage of the case, videos and press releases.

The case is District Attorney’s Office for the Third Judicial District, et al. v. Osborne.

The Innocence Project
Benjamin N. Cardozo School of Law
100 Fifth Ave. 3rd Floor
New York, NY 10011
Website: http://www.innocenceproject.org/

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UPDATE - 6/18/09

Dear Mary,

In a 5-4 ruling today, the U.S. Supreme Court decided that our client, William Osborne, will not get DNA testing that could prove his innocence. The court ultimately ruled that the finality of a conviction is more important than making sure the right person was convicted.

Today’s decision is deeply disappointing and flawed, but it will have a limited impact because most cases are resolved at the local or state level. In the aftermath of this Supreme Court ruling, the Innocence Project is more determined than ever to pass laws granting access to DNA testing in the last three states that lack them and to improve existing laws in other states. We cannot do it without your help.

There are two ways you can help today:

— Donate to the Innocence Project to help us pass and improve DNA testing laws across the country.  https://secure2.convio.net/ip/site/Donation2?idb=1218337582&df_id=1160&1160.donation=form1

— Sign our petition supporting access to DNA testing in every case where it can prove innocence.  http://ip.convio.net/site/PageServer?pagename=DNAAccessPetition

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MARY'S COMMENT: Alaska court, there is no way to deny justice in any “orderly fashion.” History proves that social order requires justice. In fact, it was on the ideal of liberty and equal justice for all that this nation was founded, and those rights are clearly spelled out in the Constitution. The High Court choose the expedient thing over the right thing in the matter of post-conviction DNA testing for American prisoners, especially condemned persons.

The U.S. Supreme Court declined to uphold the Constitutional rights to life and liberty for people who may be innocent but were convicted and sentenced to prison terms or execution before the availability of foolproof DNA testing methods.  Alaska will not have to interrupt its criminal "justice" process with forensic tests that could prove innocence. 

Mary Neal
Assistance to the Incarcerated Mentally Ill
(Online advocacy group for America's mentally ill prisoners)

When the Son of man shall come in his glory, and all the holy angels with him, then shall he sit upon the throne of his glory: And before him shall be gathered all nations: and he shall separate them one from another, as a shepherd divideth his sheep from the goats: And he shall set the sheep on his right hand, but the goats on the left. ~ Matthew 25:31-33

Then shall he say also unto them on the left hand, Depart from me, ye cursed, into everlasting fire, prepared for the devil and his angels: For I was an hungred, and ye gave me no meat: I was thirsty, and ye gave me no drink: I was a stranger, and ye took me not in: naked, and ye clothed me not: sick, and in prison, and ye visited me not. Then shall they also answer him, saying, Lord, when saw we thee an hungred, or athirst, or a stranger, or naked, or sick, or in prison, and did not minister unto thee? Then shall he answer them, saying, Verily I say unto you, Inasmuch as ye did it not to one of the least of these, ye did it not to me. ~ Matthew 25:41-45