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Sunday, March 01, 2009

Barack Obama's Injustice Department Strikes Again

Barack Obama's Injustice Department Strikes Again
Image © Austin Cline
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Just in case you hoped that the Obama administration's decision to defend and continue practices like rendition and detention without charges were just aberrations, it has been revealed that his Justice Department will defend and continue another Bush-era injustice: opposing the ability of convicted criminals to get DNA tests on evidence which might prove their innocence. This doesn't appear to be about retesting evidence over and over, or even seeking second opinions on evidence. No, it's just an attempt to deny people any access to evidence to get their own tests done at all.

The case in question comes from Alaska and focuses on William Osborne, convicted in 1993 of rape and kidnapping. Osborne has been appealing his case and state courts have ruled that he has no right to access DNA evidence to see if it might prove his innocence. Why? The state won't say. No, really, they won't — the three judge panel of the Ninth Circuit Court repeatedly pressed attorneys for the State of Alaska to explain why they won't consent to testing, despite admitting that a favorable result would "conclusively establish [Osborne’s] innocence" and despite the fact that they won't even have to pay for it. The attorneys would only respond that they were not "willing or able" to answer such questions "at this time."

Federal lawyers are involved now as well. The Bush administration argued — and the Obama administration seems to be agreeing — that an accused person only has a right to be informed by the state of "possibly exculpatory evidence" before a verdict is rendered in their trial. A person who is already convicted, however, doesn't have a right to be notified or provided with possibly exculpatory evidence later on. Since the defense lawyer knew about the evidence during the trial, Osborne's rights weren't violated at the time and the state doesn't have to hand over the evidence for testing now.

It doesn't seem that Osborne's defense lawyer asked for independent tests of the evidence at the time of his trial, but it probably wouldn't have mattered much. DNA testing at the time was relatively primitive, whereas current testing is far, far more reliable. The difference is such that it might as well be new evidence that's just been discovered and has never been tested before. Would it be legitimate to refuse to test newly discovered fingerprints to see if they match the person convicted? How about newly discovered blood samples? What if a surveillance video of a crime was discovered but the state refused to hand it over to the inmate's lawyers to see who really appears on it?

The arguments offered by the government would all support such decisions: citizens have a right to access such evidence before a verdict is rendered, but not after they are convicted. If it doesn't matter that new tests would provide more accurate results then it shouldn't matter if the evidence itself is new. I'm not sure whether it would be more accurate to call that argument "Orwellian" or "Kafkaesque." Maybe if George Orwell and Franz Kafka had octuplets, this would be runt of the litter. It's certainly a more appealing image than that of George W. Bush and Barack Obama engaging in conjugal relations to produce this abomination.

If all this isn't enough, two more arguments are being advanced in defense of the government's position. First is the idea of "continuity" — that there needs to be continuity in the positions taken by the federal government when administrations change. So, I guess if the Bush administration had adopted a policy of eating babies, the Obama administration would continue in order not to rock the legal boat? Maybe we shouldn't be so confident that the policies on torture were repudiated after all.

Second is the idea that the Supreme Court should allow a "vibrant democratic process" to take place in Congress and state legislatures on matters like this. Put more simply, the administration is arguing that the states should be allowed to experiment and decide whether convicted criminals should be granted access to evidence that might prove their innocence, as if there were equally legitimate arguments on both sides.

So, the Obama administration is apparently adopting the position that while it's legitimate to argue that justice requires giving people access to evidence which might prove they are innocent, it's also equally legitimate to argue that once a person is convicted, the state has no obligation to make it any easier for them to prove that their conviction was wrong. What's next, claiming an equivalence between those who assert that torture is immoral and those who say that water boarding is good clean fun, so the states should be allowed to decide the legality of it on their own?

But wait, it actually gets worse: all of this is in direct contradiction to Barack Obama's own stated principles and values. It's not merely contrary to the sort of political rhetoric he espoused while campaigning, but it's also contrary to his own behavior as a legislator: while in Illinois, he worked hard to support legislation giving inmates access to DNA evidence which might prove their innocence. All previous indicators would have demanded the conclusion that Obama should have repudiated the Bush administration's position — one filed only days before his term ended — and sided with William Osborne.

People who are committed to the law, believe in justice, and actually care about the truth should actively encourage new tests on old evidence to determine if it supports the conviction or proves a person's innocence. Well, maybe not. Overturning a conviction with proof that the person was innocent all along causes two problems.

First, it forces police and prosecutors to start from the beginning again to solve the crime. A job they thought complete is now at square one — a cold case added to an already heavy load. Second, it sends or reinforces a message to the public that police and prosecutors are fallible, perhaps making juries more likely to retain doubt about the alleged guilt of someone else on trial. So police and prosecutors become comfortable with possibly letting innocent men and women rot in prison just so their past and future conviction records can be more secure.

That's what too many are truly committed to: conviction records, regardless of whether it's the guilty or innocent who are convicted. That's also what the Obama administration is now effectively committing itself to as well.


  1. Austin sir, I'm disappointed that I had to go all the way to the West coast, and liberal La La land to find the truly progressive explanation for B.O.'s defense of the Bush Administration's stance. It is contained in the last line of the LA Times story here as follows:

    "By tradition, the solicitor general does not change the government's position in pending cases before the Supreme Court, even when a new administration takes power."

    Now, there's an explanation to be proud of. David Savage will, I predict, have a real career in front of him. It exposes your misunderstanding of campaign rhetoric about "change." It reminds me of a spurned lover unwilling to recognize that he/she has moved on and is so, what is it, "not that into you." You just need to let it go, it won't be back. The campaign is over, now we're in the serious business of saving a way of life, consumerism. I know some people will carp, but hey when it is all you have what else are you going to do, change it? You need a trip to Disneyland to clear your head, I would be willing to chip in as I'm sure most of the congregation would, no doubt. Respectfully submitted,

  2. Listen here Cline! you seditious secessionary who would question the wisdom of your Messiah's justice system (praise his benevolent name and please God don't let the eyes of his lawmen turn in our direction.) Let me tell you about a similar case I encountered in my previous career as a newspaper reporter.

    (For you lazy bastards who can't be bothered to click on the link, which is an entertaining article from People magazine that does not contain too many complicated words, it involved a black fruit picker from Florida whose 7 children died grotesquely after being poisoned in 1967. The fruit picker was convicted, almost executed, and stayed in prison for 21 1/2 years until it was disovered that police and prosecutors had framed him and completely ruined his life. Whoopsie!)

    I wrote reams of news stories for the Tampa Tribune about this, and helped point the finger at the crooked sheriff who got the guy's cellmates to lie in court, and the state's attorney who knowingly put on a flimsy case that almost killed an innocent man. But that was before my conversion to conservatism! Now I see that all this talk about "innocence" and "evidence" means nothing in the bigger picture. I'm so ashamed!

    What happens to the public's faith in Truth, Justice and The American Way if it comes out that Teh System makes mistakes, Cline? People can sleep easy in the knowledge that they'll always get a fair trial. Unless they happen to be one of the unlucky who are framed and killed by the government, but hey, how many of them are there? And they'll never be heard from again. Nobody's going to believe their families when they say the convicted ones are innocent, because we all know they're liars.

    But noooooo, people like you just HAVE to stir up trouble. You want millions of people to question the goodness of their police and court systems, just so that a teensy, weensy few get out of prison after being convicted for something they didn't do. What's more important to you, Cline, the lives of a tiny bunch of people who nobody's ever heard of, or the mental wellbeing of millions upon millions?

    You don't have to answer. I know you care about the nobodies. But I care about the mass of the American people. Or I would if I still lived there. That's why futurePresident Sarah Palin will consider me a Real American, but not you, mate. Start saving now for your one-way ticket to Canuckistan, mate, before the RealAmerican JusticeSystem v.2013 gets ahold of you.

  3. Comrade Clineenserialkillerwhoblamesitonfetalalcoholsyndromeskibergfarbsteindorf:

    Shorter Bukko in Oz: STFU. Know this. It is important that the tree of MerKKKin Jurisprudence be watered, from time to time, with the blood of innocent victims.


    Send me an e-mail. I think you might know my sister, she just finished up at the Trib. You also might know Tim Dorsey, he is one sick fuck--I love his novels.


We'll try dumping haloscan and see how it works.