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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.