Emotion Trumps Research Every Time

The NY Times editors are so vexed by what they see as the latest blatant injustice from the Roberts Court that they can't be bothered to read the court's opinion or their own coverage of the case (Matt Yglesias keeps them company).  Let's cut to the NY Times editors:

In an appalling 5-to-4 ruling on Thursday, the Supreme Court’s conservative majority tossed aside compelling due process claims, the demands of justice and a considered decision by a lower federal appeals court to deny the right of prisoners to obtain post-conviction DNA testing that might prove their innocence.

The inmate at the center of the case, William G. Osborne, is in prison in Alaska after a 1994 rape conviction based in part on a DNA test of semen from a condom recovered at the scene.

Clang!  The inmate is in prison, all right, but for a conviction in a different crime following his release on parole in 2007 for this rape.  From the Times news report:

There was other significant evidence of Mr. Osborne’s guilt, and he confessed to the Alaska Board of Parole, which released him after 14 years. He later said he had lied to the parole board in the hope of quicker release. Mr. Osborne has since been convicted of a home invasion. [More at  CS Monitor and Scripps.]

Back to the Times editors for more bleating:

The state used an old method, known as DQ-alpha testing, that could not identify, with great specificity, the person to whom the DNA belonged. The high court sided with Alaska in its refusal to grant Mr. Osborne access to the physical evidence, the semen. His intent was to obtain a more advanced DNA test that was not available at the time of his trial and that prosecutors agreed could almost definitively prove his guilt or innocence.

Well, his intent was to roll the bones, figuring he had nothing to lose except the expense of the test.  Osborne had already passed on a more detailed test at the time of his trial, as the Times explains:

Rudimentary DNA testing on the condom in preparation for trial excluded two other suspects and included Mr. Osborne among those who might have committed the crime. The kind of testing used at the time, Chief Justice Roberts wrote, “generally cannot narrow the perpetrator down to less than 5 percent of the population.”

Mr. Osborne’s trial lawyer decided not to pursue a second kind of DNA testing that was more discriminating. The lawyer said she feared that the results might further incriminate her client.

The defense strategy is presented in more detail in the opinion:

Osborne then sought postconviction relief in Alaska state court. He claimed that he had asked his attorney, Sidney Billingslea, to seek more discriminating restriction-fragment-length-polymorphism (RFLP) DNA testing [Wiki] during trial, and argued that she was constitutionally ineffective for not doing so.¹  Osborne I, 110 P. 3d, at 990. Because she believed Osborne was guilty, " 'insisting on a more advanced ... DNA test would have served to prove that Osborne committed the alleged crimes.' " Ibid. The Alaska Court of Appeals concluded that Billingslea's decision had been strategic and rejected Osborne's claim. Id., at 991-992. 
 

Billingslea testified that after investigation, she had concluded that further testing would do more harm than good. She planned to mount a defense of mistaken identity, and thought that the imprecision of the DQ Alpha test gave her " 'very good numbers in a mistaken identity, cross-racial identification case, where the victim was in the dark and had bad eyesight.' "

It seems that sample size was not a problem, so the RFLP test available in 1993 would have been definitive.

As a matter of public policy, there is a legitimate question of how best to chivvy the states along as they legislate access to what amounts to new evidence made available by advances in technology.  However, as the WaPo explains, this was an awkward case on which prisoner's rights advocates chose to hang their hats, since the prisoner is almost surely guilty:

Prosecutors had told the court that Osborne was not a good cause for those worried about the wrongly convicted. He was identified as the woman's attacker not just by her but by an accomplice. At trial, one test of the semen found at the crime scene said it could have come from Osborne but also from about 15 percent of the population of African American men.

More of the case details are available in the opinion:

 This lawsuit arose out of a violent crime committed 16 years ago, which has resulted in a long string of litigation in the state and federal courts. On the evening of March 22, 1993, two men driving through Anchorage, Alaska, solicited sex from a female prostitute, K. G. She agreed to perform fellatio on both men for $100 and got in their car. The three spent some time looking for a place to stop and ended up in a deserted area near Earthquake Park. When K. G. demanded payment in advance, the two men pulled out a gun and forced her to perform fellatio on the driver while the passenger penetrated her vaginally, using a blue condom she had brought. The passenger then ordered K. G. out of the car and told her to lie face-down in the snow. Fearing for her life, she refused, and the two men choked her and beat her with the gun. When K. G. tried to flee, the passenger beat her with a wooden axe handle and shot her in the head while she lay on the ground. They kicked some snow on top of her and left her for dead. 521 F. 3d 1118, 1122 (CA9 2008) (case below); Osborne v. State, 163 P. 3d 973, 975-976 (Alaska App. 2007) (Osborne II); App. 27, 42-44.

     K. G. did not die; the bullet had only grazed her head. Once the two men left, she found her way back to the road, and flagged down a passing car to take her home. Ultimately, she received medical care and spoke to the police. At the scene of the crime, the police recovered a spent shell casing, the axe handle, some of K. G.'s clothing stained with blood, and the blue condom. Jackson v. State, No. A-5276 etc. (Alaska App., Feb. 7, 1996), App. to Pet. for Cert. 117a.

     Six days later, two military police officers at Fort Richardson pulled over Dexter Jackson for flashing his headlights at another vehicle. In his car they discovered a gun (which matched the shell casing), as well as several items K. G. had been carrying the night of the attack. Id., at 116a, 118a-119a. The car also matched the description K. G. had given to the police. Jackson admitted that he had been the driver during the rape and assault, and told the police that William Osborne had been his passenger. 521 F. 3d, at 1122-1123; 423 F. 3d 1050, 1051-1052 (CA9 2005); Osborne v. State, 110 P. 3d 986, 990 (Alaska App. 2005) (Osborne I). Other evidence also implicated Osborne. K. G. picked out his photograph (with some uncertainty) and at trial she identified Osborne as her attacker. Other witnesses testified that shortly before the crime, Osborne had called Jackson from an arcade, and then driven off with him. An axe handle similar to the one at the scene of the crime was found in Osborne's room on the military base where he lived.

Hence the defense attorney's desire to steer away from a more conclusive DNA test and aim for a "mistaken identity, cross-racial identification case", which in this scenario would have amounted to, all black guys look alike to white folks.

Let's leave the last laugh for Matt Y:

Conservative Justices’ Strange Enthusiasm for the Punishment of the Innocent

Here’s a beaut of a decision from the increasingly brutal and inhumane conservative-dominated Supreme Court. Not content with gutting anti-discrimination legislation, a 5-4 majority has decided that if people are wrongfully convicted they should be punished anyway because, hey, tough on crime!

...The predominant thinking of Alaska in this case seems to be that the punishment of the innocent works as a close substitute for the punishment of the guilty, so that given the heinous nature of the crime the state has a strong interest in convicting someone or other of it irrespective of the facts. This is exactly the sort of madness and injustice we rely on the judicial system to rescue us from. But not the new Roberts Court!

I am confident that the 5 justices in the majority are comfortable that the guilty have been punished.

MORE:  The SCOTUS Blog has analysis:

Amid competing essays on the courts’ role in declaring constitutional meaning, a Supreme Court majority has handed off — as essentially a question for the political branches of government — the issue of when a convicted individual can get access to genetic evidence to try to prove innocence of the crime.

...

Access to evidence for DNA testing, however, is not guaranteed by anything in the Constitution, the Court majority concluded – at least when the individual has had a fair trial, and is seeking the evidence after the fact, to try to undo a conviction.

...

The majority opinion in District Attorney’s Office v. Osborne (08-6) should not be misunderstood: it does not rule out entirely any access, in a criminal case, to genetic evidence for DNA testing.  What it does do is narrow any legal foundation for such access, primarily by leaving it up to 50 state legislatures and Congress to craft rules to control access.

Comments

[clarice]

Increasingly, I find newspaper coverage of decisions is not based on a careful reading of the opinions but rather an emphasis on which outcome the "make a difference"(MAD) journo thought would be most correct.

So--in MAD journalism, a black man was denied the best available DNA testing--and that's what this case is about, TM..everything else is simply extraneous.

[Jack is Back!]

Alaska? Well, isn't it obvious that Sarah had something to do with this? I'll wait until Sully discovers that the defense should have taken Trig's DNA while they were at it.

[Emphasis]

Dam it not everything is in the Constitution, some things must be handled by the legislature. That is what the court said. I happen to think they are right.

[daddy]

Jack is Back,

Yesterday on Local Talk Radio, Sarah's Lieutenant Governor, Republican Sean Parnell, did an interview, wherein he confirmed that currently the way State Law is written, that any Ethic's Complaints against either the Governor or Lieutenant Governor must be defended/fought by their own out of pocket funds, not by any Government moneys at all, yet that whoever is bringing the charges can be funded by any outside organization and does not have to reveal the source or amount of their own funding. He was on, trying to publicize a way to change the Law, to something like loser pays for frivolous lawsuits, etc, and was adamant is stating that in particular this Ethic's Lawsuit practice, unlike with any previous Alaskan Governor, was currently being used as a tool to try to economically punish or destroy her. We know that currently she is 14 for 14 in winning these things, but the host mentioned something quickly which was glossed over and I believe it was that 75 Ethics Complaints may ultimately be in the pipeline against her. I had not seen or heard that before and don't want to confirm something I haven't had a good look at, so I'll call in on Monday and try to track that down. It is bad enough she's had to spend over $50,000 to go 14 for 14 at this point.

[clarice]

It's an outrage. In federal court and in most states there's rule 11 or a local variation on it which allows the winner to sue the plaintiff AND lawyer for the other side for bringing a frivolous action or advancing a frivolous motion.

Perhaps she can devise some civil rights or other creative complaint and bundle all these plaintiffs together as defendants, and insist in discovery on the right to ascertain who's paying for this.

Maybe even citizens could d o this claiming its a round about way to deprive them of the services of their elected governor.

[glasater]

Those ethics charges you say are in the pipeline for the Governor of the State of Alaska makes me yearn for "loser pays" legislation. And I hope you know that I mean the loser would pay Sarah's expenses.

[narciso]

Add another zero to that,Daddy,75 complaints
that's quite a mouthful, than again how did we end up with 14.

[PaulL]

Whew! What liars the NYTimes editors are. And what a loser Matt Y is.

[narciso]

Which program was that Daddy, Rydell, Burke,
Fagan, or some one else

[daddy]

The Interview with Sarah's Lt Governor Sean Parnell was in hour 3 of the Dan Fagan Radio Show for Friday. The Link to that Podcast of hour 3 is easily locatable here.">http://www.kfqd.com/podcast_info">here. The interviewer is not Fagan but a guest host and a second guy, both liberal's, who do not do a very good job. They are more interested in some ongoing gay ordinance kerfluffle, but at about the 31 minute mark is about a 4-5 minute discussion by Parnell about these Ethic's Complaint's. I've listened 3 times and can't tell if when the host mentions a further 75 complaints in the pipeline if thats true or not, which is why I need to verify on Monday before publicizing it as fact. The unfortunate thing is that it wouldn't surprise me if it was factual.

[Dave]

A stellar example of a man sits imprisoned by the Chimpy/'Cuda regime and the only thing that can save hime is some justice tempered by Latina Wisdom™.

[daddy]

Narciso,

Typepad keeps eating my posts so I won't do any links. If you go to the ADN homepage and enter in the search-page Sarah Palin Ethics Comp[aints, you will find 2 stories of recent interest. 1 is about a Blogger group starting a Palin Ethics Complaint Defense Fund.
The second is 3 stories on a local Republican introducing Legislation that would prevent the publication of any of these anti-Sarah Ethics Complaints until they have been reviewed by a board and determined to have some legitimacy. The Legislators already have that system. Only the Governor and Lt Governor have nos such protection, and he is trying to get that passed asap.

These is my 3rd effort at trying to repost this info. Sorry if they suddenly all pop up.

And you are right. It was $500,000. Not $50,000. My mistake.

[Joan Minor]

Re: "Here’s a beaut of a decision from the increasingly brutal and inhumane conservative-dominated Supreme Court."

After eight years of this crap, I still find myself amazed as well as repulsed at Democrats, the left, and liberals. What poison fuels their hateful thoughts and rhetoric?

[narciso]

No, I figured it had to come from the mind of someone like Fagan, that was the villain in Oliver Twist no, right daddy, I didn't know about this blogger complaint defense fund, that's separate from the defense fund, but I did know about Robert Lynn's efforts.

[narciso]

I figure that little project is what the A.D. News is yammering on about, to retire that half a mill debt,in the LUN

[Jay Stevens]

What does the presumed guilt of Osborne have anything to do with his right to ask for a DNA test? Do you only extend due process to the innocent? And how do you determine innocence or guilt with absolute certainty without DNA testing? Especially if DNA testing is the only reliable method, scientifically speaking, for linking physical evidence to a suspect? (According to a National Academy of Sciences study, anyway.)

Given that in a disturbingly large percentage of convictions overturned by DNA testing prosecutors tried to block those tests, you'd think the right to DNA testing would serve as a balance to the arbitrary caprices of the state.

[Jane]

"The right to DNA testing"?

That constitution is getting pretty darn bulky.

If nothing else the people who brought this case might as well have been working for the other side.

[clarice]

Dear Jay, you made TM's point yet again. The record in this case is that his atty deliberately refused to allow a more comprehensive test because she velieved her client guilty, she believed that test would prove it, and without that test she would argue ambiguity in the eyewitness account.

It was only afterward that Osborne asked to be tested and at that point the SCOTUS indicated whether or not the state was obligated to provide him this test post conviction (and post his refusing a more accurate test than he had taken) was a matter for the state.
It doesn't rule out automatically any right to access to DNA testing--it just suggests that when you ask for it first out of time post conviction, the state has a right to determine whether it chooses to grant it or not.

But THANKS FOR PLAYING.

[daddy]

Well I am glad that the New York Times is now so interested in determining an individuals innocence. That is why we have been reading all their front page stories about that "confused, disorganized, and unable to answer questions" fired AmeriCorps Inspector General.

[Rick Ballard]

"But THANKS FOR PLAYING."

Now, Clarice, don't get ruffled by the nerf brains. After all, this fellow is only echoing Matthew Yglesias who, I believe, has a degree from Harvard?. I also believe it's a PhBbbbt or somesuch, like Josh Whatshisname. Surely these highly credentialed morons deserve a more sympathetic kick in the ass, with the intent of shaking their brains loose hearing.

[clarice]

I don't know what these clowns got their degrees in. My son got his from Harvard in biochemistry and he's the smartest person I ever knew.

[hit and run]

I also believe it's a PhBbbbt or somesuch

Well, I just phbbbbtttt'd all over my keyboard.

[Ralph L]

Why didn't the prosecution try the better DNA test?

[clarice]

I don't know. TM's recitation of facts from the opinion indicates the crime occurred 16 years ago and perhaps then the two tests--the less determinative one he took and the more accurate one he refused--were the only two then available to Alaskan defendants.

[Jim Miller]

Tom - Looks like you found another "two newspapers in one" example for Taranto.

As uneven as the reporting at the New York Times often is, I still wish that the columnists and editorial writers would read their own newspaper from time to time.

[Original MikeS]

Scooter Libby was convicted of lying when he said he didn't remember what he remembered or what he had forgotten during a conversation he had some months earlier with Tim Russert.

The court didn't allow a memory expert to testify in this trial.

[WB]

Gosh, Matt Y is a ignoramus about law, isn't he? That exercepted piece of his is soo rife with biases wrongheadedness he almost deserves an award. The law might be an a** from time to time, but Matty, well, day in day out, eh?

[narciso]

I have found that Yglesias has been ignorant
about a great many things, particularly his forte, which is supposed to be history, from more than a few exchanges around this time last year; when he entertained the noxious vapors of Nicolson Baker's "Human Smoke" and Pat Buchanan' previous effusion.
He was one of those nattering on about a 2.5 trillion dollar budget for Iraq, but a 3.5 trillion dollar budget he is silent on;
I guess that's a byproduct of Dalton School
and Harvard.

[Rick Ballard]

I suppose we should differentiate between the velcro and loafer grads and those capable of actually solving differential equations. Economics presents a snag in that respect though. Some of 'em can solve differential equations but zippers and shoe strings are still beyond their ken.

[clarice]

Yes, you do have to differentiate..I know a number of perfectly smart grads from there..not so many in literature or social sciences to be sure..

[DrJ]

Yes, you do have to differentiate.

And integrate too! Differential equations require it.

/ducks/

[clarice]

*watch the flying ashtray, Dr*

[peter]

dads are key to making us human at LUN

[jimmyk]

Hmm, just a few weeks ago we learned that cooking is what makes us human. So I guess Dad at the grill covers all the bases.

[Bryan C]

It's disappointing that the NYT can't bother to accurately present the facts. I'm sure there are far more sympathetic cases than Osborne.

That said, comprehensive routine DNA testing (or re-testing) is probably inevitable for lots of reasons, some of them good. We might as well get on with making the technology affordable, accurate, and fast enough for widespread use.

[clarice]

You may well be right, Bryan,but that doesn't suggest the SCOTUS should decide what tests each state must use and how many bites at the DNA apple and when a defendant should get, which is what this case was about.

[davod]

I know we should hold the paid media to a higher standard - after all they do say they are the professionals. However, I have the same problem with bloggers.

The great thing about the internet is you can go to the source and check whether the bloggers rhetoric matches the article.

Trust is easy if your are comfortable with a blogger, but verify is important.

[Jay Stevens]

It doesn't rule out automatically any right to access to DNA testing--it just suggests that when you ask for it first out of time post conviction, the state has a right to determine whether it chooses to grant it or not.

Why? I see no compelling interesting for the state. There's not even any financial cost: Osborne offered to pay for the test.

And back to my point: all are entitled to due process, even if they're icky or had poor defense counsel. If DNA testing is the only reliable forensic science, it seems that the state shouldn't have any choice over whether or not to deny the test. If the accused has the right to confront those bringing testimony against him, it follows he should have the right to confront the material evidence even after the conviction.

I don't understand why anybody would be against this. There's no reason to deny access to DNA to a convict, other than the arbitrary moods of locally elected officials.

Or all here ready to affirm that the state is completely incapable of erring, or worse?

[cathyf]

In this case, I think a good analogy would be a defendant who opted not to testify in his own defense at the trial, and then after he was convicted comes back and demands a new trial and the right to testify this time. And then after losing that trial, come back and demand new witnesses. Etc., etc.

The more exact test was available at the time of his trial. If this was a new test, that would be different.

[clarice]

Every trial involves a substantial expenditure of state resources and puts the victims/witnesses and state to great inconvenience which is why in every country in the world there is a rule in essence saying all good things come to an end here--

Imagine how the convicted prisoners could create havoc in any system if there were no rules as to when and how certain defenses had to be raised and when defendants were held responsible for their litigation choices.