These judges violate the golden rule all the time.
Meaning treat others as you would want to be treated.
If it were Judge Roberts in jail you can bet your ass he would want the test.

The Innocence project has freed over 225 men wrongly convicted, through the use of DNA eveidence.

This story is not what people have been saying:

http://justoneminute.typepad.com/main/2009/06/emotion-trumps-research-every-time.html

Yeah, I read the Just One Minute post too. Lots of inaccuracies in how this has been reported.

What's happening here is that the guy is trying to get his conviction reversed by claiming that his counsel was incompetent. See, he had the chance to have that test done during the trial. His attorney, thinking the guy was probably guilty, declined to have that test done since it probably would have, in her opinion, proven his guilt. As it happened, in this case, there were witnesses and a co-conspirator who confessed, so likely he would have been convicted without any DNA test at all. A court declined the incompetence appeal, stating that it was a strategic decision on the attorney's part, and such is not appealable.

Further, this guy has already served his sentence for the rape. He's now imprisoned on an unrelated conviction. So even if he were to get access to the test, and it came back no-match, it would have no bearing on the sentence he's serving now. My understanding is that it's pretty unusual for the courts to continue to honor requests for appeal after the convicted person has completed their sentence; executive clemency is the usual route for people who want to get their convictions off their record. Due process does not inlcude the right to an infinite number of appeals; at some point the courts have the authority to decide "you're wasting everyone's time". And that seems to be pretty much what the Surpremes did with this case.

I like how the NYT conveniently leaves out the other evidence used at trial to convict this guy.

There is evidence which will conclusively prove his innocence or guilt. If the evidence were a photograph, he would be allowed to examine it.

Because DNA requires a special test, he is denied the right to examine it. This is equivalent to saying you can look at a photo but you cannot make a usable enlargement from a negative.

Because the defendant is willing to to pay for the test, the only excuses are:
1) Fear the defendant will be exonerated.
2) Precedence of procedures over justice.

If the cops, the prosecutor, the legislature OR the governor had any concern about justice, the test would have already taken place. The failure of EVERYONE to care about justice says all you need to know about our (in)justice system.

Because DNA requires a special test, he is denied the right to examine it.

He was not denied the right to examine it. His lawyer decided not to have the more exact test due to the fear it would prove his guilt.

He can get any DNA test he wants. He's not being allowed to enter it into evidence because his sentence is finished.

He's not in jail for this crime, he's in jail for another crime, but whining about this one.

I read an interview with a prison warden once. The warden said there was not one guilty man in his prison. They were all framed...most of them by the police.

If the cops, the prosecutor, the legislature OR the governor had any concern about justice, the test would have already taken place.

Now we're getting to the true target of the NYT piece and this whole story. It's an effort to dummy up a lack of compassion or sense of justice on the part of the governor of Alaska. Wonder why that is.

Curtis:

I see your point.

But there are other factors here to be considered, such as evidence presented in the trial which was absent from this article. There may have been trial evidence that could have proven the defendants guilt beyond a reasonable doubt, with or without the test. It says that the DNA was only used "in part" to convict.

After human DNA sits in a basement for over a decade, what if it became so denigrated the test was inconclusive? I would have to do some research here, but would an inconclusive finding give this man a potential loophole to beat a conviction on the absence of a conclusive test result alone?

I think this would be entirely different if the only evidence used for his conviction was based on DNA. Then there would be little question of duty in providing a re-test. But with DNA evidence along with other evidence (circumstantial) I don't think a duty is owed if it could give him an advantage to beat the wrap free and clear if this test doesn’t come out one way or the other.

I don't know how they would handle inconclusive test findings, but it certainly would lend me some caution before deciding to grant this prisoner a right to a new test.

Since NYT is so notoriously pro-criminal and has a habit of burying important details in favor of the defense, I am highly suspicious of the spin they give these cases in their articles.

Conan - Nice!

Kinda like the "rape kit" crap reporting from 6 or so months back!

Feebie, the funny thing is, all of the case facts that Just One Minute used to take apart the NYT editorial came from the NYT's own reporting of the case. Evidently, the NYT opinion editors don't read their own newspaper.

"Evidently, the NYT opinion editors don't read their own newspaper."

If I was pumping out written piles of dung on a daily basis, I'd be happyily practice avoidance too. Only so much denial humans can take.

it was meant to read "happily" above. Oy.

Conan and Feebie,

Assume his lawyer knew a photo was taken at the crime scene but failed to examine it before the trial.
1) If there there were a photograph in the police files, would he be able to examine it with a magnifying glass?
2) If there were only a photographic negative in the police files, would he be able to (at his own cost) create an positive enlargement of the photo?
3) If either of the above is true, why is DNA different?

"It's an effort to dummy up a lack of compassion or sense of justice on the part of the governor of Alaska. Wonder why that is."

I cannot speak for the NYT but one of the few things I liked a Palin was that she appeared to approve of jury nullification.

The injustice of the "justice" system is a passion of mine. The one time I was tangentially involved, I was amazed at the disregard for justice among the police, prosecutors, parole offices, court room experts, jurors and judges in two states. This ranged from the petty (refusing to take bail money and handcuffing a man in front of his neighbors for no reason) to the sinister (police and prosecutor perjury and clearly bogus "medical" testimony).

A man I dislike intensely is in jail for 12 years for a crime he clearly did not commit (I had my doubt about him until I read the transcripts but the evidence proved him innocent beyond a reasonable doubt). Unfortunatly, because he is family it caused emotional and financial hardship.

First, he's not appealing his conviction based on the DNA test proving him innocent. He's appealing based upon his lawyer being incompetent for not having the better test done at the time of his trial.

The appeals courts ruled the lawyer had a good reason for not asking for the more stringent test and was not incompetent. Her reason was that she thought the better test would prove he did it and give the prosecution a slam dunk case. He was convicted on more than a DNA test.

Second, he (and his lawyer) are able to examine befor the trial ALL of the evidence against him - to prepare a rebuttal ("It's called, 'Disclos-yuh.'") So, yes, he would be able to examine the photograph. And he was able to examine the DNA evidence - and to agree to the level of the test to be administered. He chose the lower-level test.

The prosecution would also be able to examine the DNA test results (state labs did the DNA tests so both sides got a copy of the results).

Unlike a privately administered lie detector test taken in the lawyer's office there would be no way to hide a positive from the prosecution. So he and his lawyer opted for the weaker test which she could then dispute as a weak test in court.

Third, if the negative was in the police files, yes, he would be able to request and/or make an enlargement.

Fourth, I don't think he is being prevented from taking a DNA test and filing an appeal to have the new DNA test admitted into evidence to have his conviction overturned.

But that's not what he's doing. He's arguing that his lawyer was incompetent for not having the stronger test done originally and for that omission his conviction should be overturned.

Had his conviction been primarily based upon DNA evidence, he could probably make a case that better technology could have cleared him. But tne test he could have taken and the test he would take now are the same test. He had a chance to take the better test during his trial and he (and his lawyer) opted not to take it.

Of course, all of what I just posted is speculation since I'm not an attorney. Perhaps one of the attorneys on this board can confirm or obliterate my guesses.

The New York Times, on the other hand, is using this story as a back-handed slap at the governor of Alaska.

Also, his sentence in that case has concluded. He's in jail for another offense.

So, why is he worried about a case that's over?

Do you think, if he can get is first convictino overturned, he's not gonna go back and argue that the time already served should be moved to this sentence and he should be released soon?

Conan,

"Fourth, I don't think he is being prevented from taking a DNA test and filing an appeal to have the new DNA test admitted into evidence to have his conviction overturned."

http://www.cnn.com/2009/CRIME/06/18/rapist.dna/

"He has no constitutional right to obtain post-conviction access to the state's evidence for DNA testing," Chief Justice John Roberts wrote for the majority.

http://en.wikipedia.org/wiki/William_G._Osborne

District Attorney's Office for the Third Judicial District v. Osborne was a case in which the United States Supreme Court decided that the Constitution's due process clause does not require states to turn over DNA evidence of those long since convicted of crimes.

Curtis - what if the test was done and came out inconclusive? What if the evidence was so denigrated and couldn't determine conclusively the DNA tests? Would that create a situation for his conviction being overturned? Could it provide reasonable doubt now after the fact...despite other evidence given at trial?

(I don't know, but these were my questions to you. None of which you've posted about addresses my questions to you directly. I am not sure why you included me in your talking points).

Feebie,

If the test were inconclusive, the guilty verdict obviously stands. A lack of evidence would have no effect on what was presumbably a fair trial. I am sorry I did not respond to this point originally.

On another note, I must admit the fact that the police and prosecutor did not want the test done leads me to suspect that they have doubt. If I were in their shoes, I would welcome confirmation or denial of guilt. Of course, if I was in fear of losing my job, I might feel differently.

Curtis, the basic answer to your question is that the right to due process does not include the right to an infinite number of do-overs. Defendents are expected to present their best defense the first time; they cannot expect to be granted the privilege of trying out a number of different defenses in front of different juries to see if maybe they can get lucky with one. Consider this: if what you are asking for were true, many clearly guilty people who were convicted based on eyewitness testimony only have to wait until the eyewitnesses die or can no longer be located. Then, they can appeal based on the fact that the evidence (the eyewitnesses) are no longer available, and they walk.

I don't dispute that a lot of police and prosecutors behave as you stated. But you have to realize that criminals and their defense lawyers have an equally strong motivation to game the system. And that looks like what's happening here. Consider: for all we know, the guy may have told his lawyer, "OK, I did it, now you get me off." Part of the reason his original lawyer didn't want that test, and isn't supporting his appeal now, is because she is convinced beyond the shadow of a doubt that he is in fact guilty.

Add to all this the fact that the guy is apparently trying to use this appeal to get relief from an unrelated sentence, and you have a really, really weak case. There are much better cases to hitch a defendants'-rights movement to.

On another note, I must admit the fact that the police and prosecutor did not want the test done leads me to suspect that they have doubt.

They wanted it done at the time of his trial. He didn't want it done.

They don't want it done now because it will open a floodgate of defendents saying, "My lawyer sucked. I want a new test."

This guy has nothing to lose and everything to gain by insisting on a new test. If it proves he's guilty, he's already done his time so nothing can be done to him. If it proves he's innocent, he can argue for time served on his current conviction.

Cousin Dave and Conan,

People have the right to look at police files for new evidence regardless of ANYTHING that occurred at the trial. According to the supreme court, simply because DNA evidence requires a test, this right vanishes. Why?

Look at it this way. His lawyer could look at a photo in the police file with a microscope. In the future, the lawyer could examine DNA in the police station with a to-be-invented DNA microscope. But because with current technology, the DNA sample needs to leave the police station, it is verboten.

I am not advocating a new trial. I am not advocating an appeal. I am not advocating the state spend a dime. I am not advocating any new right. I am just advocating continuing the right to re-examine evidence.

And what is the problem with thousands of convicted criminals paying for new tests? Yes, the criminals have little to lose but they have nothing to gain if they are guilty. They (and society) have everything to gain if they are innocent.

BTW, thank you giving me the opportunity to sharpen my thoughts.

I'm in complete agreement with you on doing everything possible to make sure the non-guilty are not locked up.

And I'm a little uneasy that the ruling in this case seems to say that if better tests come along, ones that can unambiguously determine if someone is guilty or not guilty, that person does not have a Constitutional right to continually try to prove his innocence with the latest tools in the toolkit.

But I also see the point that the courts have an interest in making sure the guilty are not trying to game the system with attempts to cloud the certainty of their guilt; guilt determined with more than one DNA test as evidence.

I can also see Justice Roberts' point that this is really a legislative matter rather than one to be addressed by the court.

Keep in mind that this guy was not appealing to be given a chance to have a new test. He was appealing based upon attorney incompetence in not getting the better test at trial - a test he could have had then but says should be administered now despite the earlier refusal. Changing your mind does not new evidence make.

Did his appeal allege his attorney lied to him at the time or failed to tell him about having the option of a better test?

It's amazing how, when you learn all the facts, things are rarely as cut and dried as the New York Times would like them to be.

This is not about an appeal. It is about access to evidence:

"He has no constitutional right to obtain post-conviction access to the state's evidence for DNA testing," Chief Justice John Roberts wrote for the majority.

Because DNA testing requires the evidence to leave the police station, he has no access to it.

I'm a lawyer, and I once got an innocent guy out of jail (unfortunately, he'd already served 7 years). That experience gave me a truly eye-opening view into the problems with our justice system. And Amy's right -- in those (fairly rare) cases where there are simple ways to determine guilt or innocence -- even after conviction, we should use them, particularly if the convicted man is willing to pay. What's the freaking harm?

Some of the comments above show a lack of knowledge of how things work in our legal system.

First -- Some of you don't understand that once you're in jail, you've got real problems getting out of jail. The deck is totally stacked against you. "Ineffective assistance of counsel" is one of the few possible pathways out. It's not just a matter of saying "give me this DNA test." This guy has to show WHY, if the test was available at the time of his trial, the test wasn't performed. Ineffective assistance of counsel is the only way he can show that, and therefore the only way he can get the DNA test performed or admitted into a court. That's why he was making that argument. In my case, we had a slam dunk piece of evidence showing my client was innocent. But I couldn't just go to a judge and show it. That's not the way it works. I had to explain why it wasn't in the original trial to begin with. Therefore, I didn't argue "hey, look at this slam dunk piece of evidence." I had to argue "ineffective assistance of counsel" or no one would even cast an eye at the evidence.

Second -- To those of you who say "why does he care about the rape conviction if he's in prison for another offense." Someone above made a good point that he might be able to get time served for the current prison term, but there's another really good reason, too. Let's say you were convicted of a rape and also of burgling a house. You did burgle the house, but you didn't commit the rape. Rape is a pretty horrible crime -- much worse than the burglary. Would you want that crime attributed to your name forever, even if you had in fact committed some other crime and were in prison for it? I can tell you that my client was grateful he didn't have to serve the rest of his sentence, but even more grateful to have the conviction vacated and his name cleared of the crime he didn't commit.

Third -- To those of you who are opposed to "do-overs". If you are poor and have a court appointed attorney, chances are he's got 8 million other cases, and isn't spending much time on you or your case. And there's not much you can do about it. You may not even know what he's planning to do in court until it's too late. (And the odds that you even understand the implications of what he's doing in court are probably pretty slim to begin with.) My client's original lawyer was too lazy to go through the procedural steps to get the slam-dunk evidence admitted. But my client thought until the very end of the trial that the evidence was coming. When it didn't, he tried to stand up in court and demand that it be admitted, to no avail. The judge shut him down. The jury never saw the evidence, and convicted him. This kind of thing is unfortunately more common than you'd think, especially for clients who don't have the cash to hire a dream team. That's why, sometimes, we need do-overs. My client spent the next six years trying to get a court to even look at his slam-dunk evidence. Three courts said "if you had this evidence, why didn't your attorney submit it at trial? Game over, you lose." I managed to get a good result, but frankly, it's mostly because I was with a large firm and had a lot of resources to throw at the case. (I took it on a pro-bono basis.) We wouldn't need do-overs if everyone got the best possible legal assistance the first time around, but the basic fact is, if you don't have money, you're lucky if you get decent legal assistance.

I don't know, Gail. How many do-overs are we willing to give? To what extent are we willing to limit access to the courts for those who are truly innocent, so that the guilty can file one frivolous appeal after another? And in the case that Amy brought, there's no doubt in my mind that the appeal is frivolous. And look, it went all the way to the U.S. Supreme Court! So it's a biiiiig reach to claim that this guy hasn't had his day in court.

I understand your point about the people who can't afford dream-team representation. But I don't necessarily agree that this means that these people will always be convicted unjustly. In fact, let me offer the counterpoint to your story: I have a relative who has committed at least three felonies that I know of, plus more misdomeanors than I can count. She's a sociopath with no regard whatsoever for anyone other than herself. On two of the three felonies, at trial her public defender got her sprung on technicalities. The third one never even got to trial: Her defender convinced the judge that, gosh darn it, she's really a nice lady deep down inside, and she has these children dontcha know and she can't very well take care of them if she's in jail. The judge sympathized with her, and at that point the prosecution decided not to pursue it.

The problem is, some here are arguing for their version of utopia: a justice system which never, ever convicts anyone whose guit isn't 100% certain. If they have the right to demand that, then I have the right to demand my version: a justice system that never, ever lets a guilty person walk. And we all know that ain't gonna happen.

Gail and Curtis, let me point you towards a far more egregious case of miscarriage of justice:

http://www.wendymcelroy.com/news.php?extend.2542

It's really pretty hard to be convicted of a felony and do jail time. You have to pretty freakin' stupid. Our homicide closure rate is under 50%. DH likes to watch "The First 48" about real homicide cases. 2 things always strike me: the stupidity of the criminals, and the stupidity of the detectives. Sad.

I'm a "one appeal and you're done" kind of girl.