DNA evidence presents a truly new situation in case law. The case law of newly discovered post-conviction evidence is based on the assumption that such evidence is not dispositive, that is, it has no legal standing until tried by a jury or, in some cases, a judge. This is especially true in the case of testimony. The non-dispositive nature of evidence is, of course, what gave rise to the doctrine of limitations. But DNA evidence is frequently dispositive, and existing legal doctrines simply do not address evidence of this nature. Therefore, resort must be had to the most basic principles of justice.
Exhaustion of state remedies
This is not to say that Roberts forswore lying in his Osborne opinion. Well, technically, he reaffirmed that he has lied previously. He concludes that Osborne did not exhaust all avenues of relief available in the Alaska courts. Osborne, says Roberts, “has not tried to use the process provided to him by the State or attempted to vindicate the liberty interest that is now the centerpiece of his claim.” Slip Opinion at 17. Given this conclusion, Roberts should have dismissed the petition immediately, and sent Osborne back to the Alaska courts. His allegedly subscribes to the philosophy that courts should decide no questions they don’t have to. See for example Vikram David Amar, “Getting Down to Cases: Part Three in a Series on the Kind of Case-Specific Questions the Senate Should Ask John Roberts” on Findlaw’s Writ, http://writ.news.findlaw.com/amar/20050902.html, Sep. 02, 2005:
The Hamdan decision. . . .may also be important to the extent that it may undermine other statements that Roberts has made, in opinions and elsewhere, touting the virtues of judicial restraint and the importance of judges not deciding any more than is necessary to resolve the case at hand: The opinion reached issues that it did not have to, and had Judge Roberts disagreed, he might have chosen instead to concur separately on narrower grounds.
Roberts reneges again on his premise (and promise) in Osborne. Instead of a dismissal for failure to exhaust state remedies, Roberts unnecessarily (if one accepts his conclusion of failure to exhaust state remedies) found that there is no constitutional right to access the newest type of DNA evidence after conviction. Slip Opinion at 1.
Of course, a true Injustice is never content with merely reneging on past promises. Thus Roberts also wrongly concludes that Osborne did not exhaust his state remedies.
Three types of DNA evidence are involved in Osborne’s odyssey. Alaska performed DQ alpha testing, which ruled out 80% of other black individuals. Slip Opinion at 3–4. Then there’s the “more discriminating” restriction-fragment-length-polymorphism (RFLP) testing, at 4, which was also available at the time of his trial, but which Osborne’s lawyer declined to seek for “strategic” reasons, id. Finally, there’s short-tandem-repeat (STR) testing, not available at the time of his trial.
Roberts relies on the opinion of the Alaska Court of Appeals, which held that state law did not allow Osborne to seek RFLP testing post-conviction, because it had been available at his trial. It also found no state or Federal constitutional right to such testing. Slip Opinion at 5. But under state law, Osborne could go back and request STR testing.
However, Justice Stevens, dissenting, points out that
In his arguments before the state trial court and his briefs to the Alaska Court of Appeals, however, Osborne had plainly requested STR DNA testing, a form of DNA testing not yet in use at the time of his trial. . . . The state appellate court’s conclusion that the requested testing had been available at the time of trial was therefore clearly erroneous.
Slip Opinion at 5, footnote omitted. Roberts should have acknowledged this discrepancy, and sent the question back to the Alaska court for clarification. Alternatively, he could have considered an interesting question: does exhausting state remedies include going back to a state appellate court and trying to get it to correct a gross and inexcusable error? But Roberts tries to pretend that the discrepancy doesn’t exist, exposing himself yet again as a damned liar.
Constitutional right to post-trial DNA testing
Disdaining judicial restraint, Roberts plunges into a Federal Constitutional question whose answer is obvious. As an initial matter, we note that Roberts concedes that “STR testing is extremely discriminating, can be used on small samples, and is ‘rapidly becoming the standard.’” Slip Opinion note 3, citing a publication of the National Commission on the Future of DNA Evidence. Given those qualities, common sense tells us that due process requires that a convicted person must have access to STR testing if the results are material, it is reasonably available, and it was not available at trial. There won’t be any case law to guide us, nor statements by the Founders, because this was not something that was an issue before. But common sense is an anathema to a true Injustice whose evil intent is to execute or keep behind bars every convicted person, guilty or not, so Roberts sets to his task with gusto.
Hyperbole
One of his tactics is hyperbole, a common diversionary tactic used by those without a valid argument. “The availability of technologies not available at trial cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt.” Slip Opinion at 8. At this risk of stating the obvious, I will note that only criminal convictions in which biological evidence is reasonably available for testing would be in doubt. That may still be a lot, but how could it be otherwise? Which convicted person does Roberts propose to look in the eye and say, you can’t be tested because you’re one of many? Anyone for whom STR testing is reasonably available should get it. If a large number of convicts do meet this standard, it’s because the procedure is new. As time goes on, applications for post-conviction STR testing because it was not available at trial will necessarily dwindle to zero. This is a temporary problem. When another technology becomes available, say, a fail-safe lie detector, that will create the same temporary problem.
This sort of argument is irrefutable proof of malice. Am I now donning the hyperbole mantle? No way. If Roberts were interested in the law, he wouldn’t make such an absolute statement. He would wonder how many cases like Osborne’s are out there; he’d be eager for more information. He certainly wouldn’t write the very next sentence, “The dilemma is how to harness DNA’s power to prove innocence without unnecessarily overthrowing the established system of criminal justice.” Id. That is, “without unnecessarily overthrowing the established system of criminal justice by making STR testing a post-conviction constitutional right”. This degree of hyperbole is simply beyond response.
Establishing a freestanding right to access DNA evidence for testing would force us to act as policymakers, and our substantive-due-process rulemaking authority would not only have to cover the right of access but a myriad of other issues. We would soon have to decide if there is a constitutional obligation to preserve forensic evidence that might later be tested. Cf. Arizona v. Youngblood, 488 U. S. 51, 56–58 (1988). If so, for how long? Would it be different for different types of evidence? Would the State also have some obligation to gather such evidence in the first place? How much, and when? No doubt there would be a miscellany of other minor directives. See, e.g., Harvey v. Horan, 285 F. 3d 298, 300–301 (CA4 2002) (Wilkinson, C. J., concurring in denial of rehearing).
At 20.
Contrary to Roberts’ implication, Arizona does not address the issue of opening up a vast field of new litigation by recognizing a constitutional right; the cited pages specifically address the good faith standard in determining whether improper storing of evidence is a constitutional violation. In any case, since when are Constitutional rights upheld only if no more questions are to arise? It’s the courts’ job to answer such questions when they do arise. Roberts seems never to have heard of “equal protection”. When it comes subsequent questions arising, DNA evidence is a picnic compared to equal protection.
Contempt for constitutional rights
Roberts’ malice is also proved by his utter contempt for the very concept of constitutional rights. He holds that because the states are working on the problem, at 1, 8–9.
“By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore exercise the utmost care whenever we are asked to break new ground in this field.” Glucksberg, 521 U.S., at 720. . . . “[J]udicial imposition of a categorical remedy. . .might pretermit other responsible solutions being considered in Congress and state legislatures.” Murray v. Giarratano, 492 U. S. 1, 14 (1989) (KENNEDY, J., concurring in judgment). If we extended substantive due process to this area, we would cast these statutes into constitutional doubt and be forced to take over the issue of DNA access ourselves. We are reluctant to enlist the Federal Judiciary in creating a new constitutional code of rules for handling DNA.
At 19–20.
Waiving the objection that Kennedy’s opinion in Murray is not binding case law, being joined only by Justice O’Connor, the common-sense Constitutional prescription, that reasonably available DNA evidence be made available where it will be dispositive, cannot “pretermit other responsible solutions”—it’s a minimum; there’s no alternative that would satisfy the Due Process clause. Legislative solutions to subsidiary questions, such as how long must evidence be preserved, are not “pretermitted” by such a holding.
Glucksberg held that there is no Constitutional right to assisted suicide, a question for which there was no common-sense answer, and no clear guidance in the case-law.
More generally, suppose one state fails to provide access to DNA testing post-conviction. According to Roberts and his ilk, that states’ citizens are second-class American citizens. Even if all states eventually passed adequate laws granting access to DNA evidence, those laws could be repealed at any time. That’s why we have a Constitution: it’s protections are enduring, not cancelable at the whim of the legislature.
Fundamental difference between DNA and other evidence
Realizing the weakness of his arguments, Roberts tries to backpedal. “Where there is enough other incriminating evidence and an explanation for the DNA result, science alone can-not prove a prisoner innocent. See House v. Bell, 547 U. S. 518, 540–548 (2006).” Slip Opinion at 8. House is immaterial: it involves mishandled or allegedly mishandled evidence—not an issue here. Rather, the issue is the fundamental difference between DNA testing and other types of evidence. It is not technical problems. DNA evidence can be mishandled, but so can fingerprints, and witnesses can be tampered with. The difference is that, in the absence technical problems, the most sophisticated DNA testing, such as STR testing, is dispositive, whereas other evidence is not—it must be tried. This difference renders Roberts’ cites to case law immaterial.
A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man. At trial, the defendant is presumed innocent and may demand that the government prove its case beyond reasonable doubt. But “[o]nce a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears.” Herrera v. Collins, 506 U. S. 390, 399 (1993). “Given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.” Dumschat, supra, at 464 (internal quotation marks and alterations omitted).
Slip Opinion at 14.
The quote from Dumschat, 452 U. S. 458 (1981), which by the way does not address new evidence, is so obvious and unexceptional that it is further evidence of an untenable argument. It does provoke the observation that a convicted person loses only such constitutional rights as are necessary for punishment of the offence. Thus punishment cannot be unusual, that is completely disproportionate to the offense, or cruel, for example, waterboarding (even the evil Yoo doesn’t advocate it as punishment). The convict retains the right to practice religion and even speak freely, subject only to such constraints as may be necessary to carry out the punishment and maintain order and safety in the place of confinement. Thus a prisoner probably will not have the right to attend absolutely any place of worship of his or her choice, and may have correspondence censured, for example to ensure that he’s not ordering executions.
Rehnquist in Herrara
As for as the loss of presumption of innocence, let us take a look at Herrera. There, the petitioner raised
a claim of “actual innocence” based on newly discovered evidence. In support of this claim petitioner presented the affidavits of Hector Villarreal, an attorney who had represented petitioner’s brother, Raul Herrera, Sr., and of Juan Franco Palacious, one of Raul, Senior’s former cellmates. Both individuals claimed that Raul, Senior, who died in 1984, had told them that he—and not petitioner—had killed Officers Rucker and Carrisalez. . . .
. . . . In addition to proffering the above affidavits, petitioner presented the affidavits of Raul Herrera, Jr., Raul, Senior’s son, and Jose Ybarra, Jr., a schoolmate of the Herrera brothers. Raul, Junior, averred that he had witnessed his father shoot Officers Rucker and Carrisalez and petitioner was not present. Raul, Junior, was nine years old at the time of the killings. Ybarra alleged that Raul, Senior, told him one summer night in 1983 that he had shot the two police officers.
At 396–397, footnotes omitted (Chief Justice Rehnquist).
Here, the differences between testimony and DNA testing are brought into sharp focus: First, as time goes by, memories fade. The “passage of time only diminishes the reliability of criminal adjudications,” at 403. In this case, the new testimony was about events eight years previous. At 398. Second, if new testimony readily leads to a new trial, there will be a temptation to pressure potential witnesses over time. Third, the new testimony is not dispositive in any case; it must be evaluated by a jury. It is in this context that Rehnquist continued,
Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears. Cf. Ross v. Moffitt, 417 U. S. 600, 610 (1974) (“The purpose of the trial stage from the State’s point of view is to convert a criminal defendant from a person presumed innocent to one found guilty beyond a reasonable doubt”). Here, it is not disputed that the State met its burden of proving at trial that petitioner was guilty of the capital murder of Officer Carrisalez beyond a reasonable doubt. Thus, in the eyes of the law, petitioner does not come before the Court as one who is “innocent,” but, on the contrary, as one who has been convicted by due process of law of two brutal murders. Based on affidavits here filed, petitioner claims that evidence never presented to the trial court proves him innocent notwithstanding the verdict reached at his trial. . . .
At 399–400, some citations omitted.
That a defendant convicted in a fair trial loses the presumption of innocence is a truism. It doesn’t tell us what rights the convicted person retains and loses. Rehnquist’s cite to his own opinion in Ross seems intended to imply a broad loss of rights upon conviction. However, Ross addressed specifically indigents’ rights on discretionary appeals, that is, those not of right. (Rehnquist illogically distinguished between appeals of right and discretionary appeals in determining whether denial of free counsel to indigent appellants is a denial of equal protection, but that’s another issue.)
Rehnquist continued (in Herrera),
Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding. Chief Justice Warren made this clear in Townsend v. Sain, supra, <372> at 317 (emphasis added):
“Where newly discovered evidence is alleged in a habeas application, evidence which could not reasonably have been presented to the state trier of facts, the federal court must grant an evidentiary hearing. Of course, such evidence must bear upon the constitutionality of the applicant’s detention; the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.”
This rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution—not to correct errors of fact. See, e. g., Moore v. Dempsey, 261 U. S. 86, 87–88 (1923) (Holmes, J.) (“[W]hat we have to deal with [on habeas review] is not the petitioners’ innocence or guilt but solely the question whether their constitutional rights have been preserved”); Hyde v. Shine, 199 U. S. 62, 84 (1905) (“[I]t is well settled that upon habeas corpus the court will not weigh the evidence”) (emphasis in original); Ex parte Terry, 128 U. S. 289, 305 (1888) (“As the writ of habeas corpus does not perform the office of a writ of error or an appeal, [the facts establishing guilt] cannot be re-examined or reviewed in this collateral proceeding”) (emphasis in original).
More recent authority construing federal habeas statutes speaks in a similar vein. “Federal courts are not forums in which to re-litigate state trials.” Barefoot v. Estelle, 463 U. S. 880, 887 (1983). The guilt or innocence determination in state criminal trials is “a decisive and portentous event.” Wainwright v. Sykes, 433 U. S. 72, 90 (1977). “Society’s resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens.” Ibid. Few rulings would be more disruptive of our federal system than to provide for federal habeas review of freestanding claims of actual innocence.
At 400–401.
That Rehnquist’s cites are utterly inapposite to the question of DNA testing is manifest. The cited cases all assume that evidence is something that has to be carefully evaluated, starting with Chief Justice Warren’s flat prohibition of habeas corpus relief on the ground “merely” of newly discovered evidence. In 1963, new evidence not bearing on the determination whether a constitutional violation occurred during the trial (whether a confession was coerced, at 307) was “merely” evidence because it was no better nor worse than any evidence presented at trial. But DNA test results are not “merely” new evidence, they may be, as in Osborne’s case, dispositive. In that case the reviewing district court does not “deal with. . .the petitioner’s innocence or guilt,” nor “weigh the evidence”, nor “re-examine” facts, nor re-litigate a state trial. Wainwright is particularly instructive here. A guilt-or-innocence determination is “a decisive and important event,” and “society’s resources” have to be “concentrated at that place and time” to make the decision, because of the difficulty of evaluating any type of evidence known in 1977, evidence which could be in good faith lead to different conclusions by different people. But where new DNA evidence can be dispositive, these arguments go out the window.
Rehnquist (still writing in Herrera) continued,
Our decision in Jackson v. Virginia, 443 U. S. 307 (1979), comes as close to authorizing evidentiary review of a state-court conviction on federal habeas as any of our cases. There, we held that a federal habeas court may review a claim that the evidence adduced at a state trial was not sufficient to convict a criminal defendant beyond a reasonable doubt. But in so holding, we emphasized:
“[T]his inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”
Id., at 318–319 (citations omitted; emphasis in original). We specifically noted that “the standard announced. . .does not permit a court to make its own subjective determination of guilt or innocence.” Id., at 320, n. 13.
. . . .the sufficiency of the evidence review authorized by Jackson is limited to “record evidence.” . . . Jackson does not extend to non-record evidence, including newly discovered evidence. Finally, the Jackson inquiry does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit.
At 401–402, citations omitted.
That Jackson does not extend to newly-discovered evidence is of no significance; that is not its subject. But the standards it sets illustrate how the existing case law simply has no application to DNA evidence. When newly-available evidence is DNA evidence, not only is the correctness of the jury’s decision not a question before the reviewing court, neither is the determination whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” DNA evidence is a whole new animal. A different “rational” question applies where, as in Osborne’s case, the DNA evidence is available: can any rational person claim that justice is served by denying access to the evidence?
Uncharted waters
Let us return to Osborne, where Roberts continues,
. . .Osborne. . . .asks that we recognize a freestanding right to DNA evidence untethered from the liberty interests he hopes to vindicate with it. We. . .conclude, in the circumstances of this case, that there is no such substantive due process right. “As a general matter, the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered
In Collins, the petitioner sought to establish a new Constitutional right of municipal employees to a “reasonably safe work environment.” At 126. To support the text quoted above, Justice Stevens cited his opinion in Regents of Univ. of Mich. v. Ewing, 474 U. S. 214, 225–226 (1985):
Although the Court regularly proceeds on the assumption that the Due Process Clause has more than a procedural dimension, we must always bear in mind that the substantive content of the Clause is suggested neither by its language nor by pre-constitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments. This is. . .only to underline Mr. Justice Black’s constant reminder to his colleagues that the Court has no license to invalidate legislation which it thinks merely arbitrary or unreasonable.
But this is, in turn, a quote from Justice White’s dissenting opinion in Moore v. East Cleveland, 431 U.S. 494, 543–544 (1977). Waiving the objection that Stevens is quoting a dissent, Stevens strategically truncated the quote to distort of Justice White’s meaning:
Although the Court regularly proceeds on the assumption that the Due Process Clause has more than a procedural dimension, we must always bear in mind that the substantive content of the Clause is suggested neither by its language nor by pre-constitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments. This is not to suggest, at this point, that any of these cases <Roe v. Wade, Loving v. Virginia, Griswold v. Connecticut, et al.> should be overruled, or that the process by which they were decided was illegitimate or even unacceptable, but only to underline Mr. Justice Black’s constant reminder to his colleagues that the Court has no license to invalidate legislation which it thinks merely arbitrary or unreasonable.
Text omitted by Stevens in red. “Merely” arbitrary legislation, we find out at 547, is legislation which does not interfere with a liberty interest: “liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect.” Quoting Meyer v. Nebraska, 262 U.S. 390, 399–400. What constitutes “liberty” is, of course, a matter of dispute, and I don’t agree with Justice White’s call in Moore. But not only does this line of decisions not support Stevens’ claim that substantive due process is a sea of uncharted waters with “scarce and open-ended guideposts,” even if it did, considering the right of a convict to reasonably available, conclusive evidence does not require sailing into such waters, it rather requires consulting common sense.
In Reno v. Flores, the petitioners asserted “that alien juveniles suspected of being deportable have a “fundamental” right to “freedom from physical restraint”, at 299—a right, the finding of which would be a far cry from finding a right to reasonably available, conclusive evidence.
Conclusion
The gang of four Injustices, Roberts, Alito, Scalia, and Thomas, continue to chip away at our Constitution, joined intermittently by part-time Injustices, such as, in this case, Kennedy. Unless Americans arise up and cry in one voice, “Shame!”, our future is bleak.
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