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The passivist Supreme Court - Input Junkie
June 18th, 2009
11:51 am

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The passivist Supreme Court
Splitting 5-4, the Supreme Court ruled Thursday that an individual whose criminal conviction has become final does not have a constitutional right to gain access to evidence so that it can be subjected to DNA testing to try to prove innocence.

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A little more detail

Is there any place that lists all the dissenting opinions?

Answered by arashinomoui. Stevens' dissenting opinion starts on page 39. Shockingly, he thinks that what happens to actual human beings matters. I don't know how a justice with that much empathy managed to get onto the Supreme Court.

What are those five justices trying to optimize?

First link thanks to The Agitator.

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From:arashinomoui
Date:June 18th, 2009 04:33 pm (UTC)
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Supreme Court's Website has all decisions complete: http://www.supremecourtus.gov/opinions/08pdf/08-6.pdf
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From:arashinomoui
Date:June 18th, 2009 04:35 pm (UTC)
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ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined. ALITO, J., filed a concurring opinion, in which KENNEDY, J., joined, and in which THOMAS, J., joined as to Part II. STEVENS, J., filed a dissenting opinion, in which GINS-BURG and BREYER, JJ., joined, and in which SOUTER, J., joined as to Part
I. SOUTER, J., filed a dissenting opinion.
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From:nancylebov
Date:June 18th, 2009 04:47 pm (UTC)
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Thank you.
From:llennhoff
Date:June 18th, 2009 04:38 pm (UTC)
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They are concerned about convicts trying to game the system by first having a trial, then if found guilty demand a biological evidence test either out of malice or in the hopes of a screw up - the chain of evidence might be broken, the tests might give a false negative whatever.

This strikes me as analogous to people I know who are upset about the extension of unemployment benefits because there are people who can live on unemployment alone, and so they will 'freeload' for a longer period of time than they otherwise could have, The outrage over the freeloaders seems to blind them to the people actually being helped.
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From:alexx_kay
Date:June 19th, 2009 05:50 pm (UTC)
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IIRC, studies have shown that human beings have hardwired morality that puts a very strong value on punishment for transgressors. The details of what counts as transgression change from culture to culture, but on average, people seem to be more concerned about punishment than about charity.
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From:nancylebov
Date:June 19th, 2009 06:03 pm (UTC)
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Or accuracy?

It's a little chilling to think of getting the facts straight when you're angry as an act of charity, but that might be the emotional truth.
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From:alexx_kay
Date:June 19th, 2009 06:33 pm (UTC)
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Indeed. Like most principles of law, the notion that "it is better to let criminals go free than to punish the guilty" was established because it *isn't* default human behavior.
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From:agrumer
Date:June 18th, 2009 06:15 pm (UTC)
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Cornell University Law School has a collection of Surpreme Court decisions that includes the dissents, and allows you to read them in either PDF or as a regular HTML page. Here's their page for the Osborne decision, and here's Stevens's dissent and Souter's dissent, no PDF reader nedded.
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From:subnumine
Date:June 18th, 2009 06:37 pm (UTC)
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What I find even more striking is that Souter notices, and cares, that Alaska's case consists of lies:

When I first considered the State’s position I thought Alaska’s two strongest points were these: (1) that in Osborne’s state litigation he failed to request access for the purpose of a variety of postconviction testing that could not have been done at time of trial (and thus sought no new evidence by his state-court petition); and (2) that he failed to aver actual innocence (and thus failed to place his oath behind the assertion that the evidence sought would be material to his postconviction claim). Denying him any relief under these circumstances, the argument ran, did not indicate any inadequacy in the state procedure that would justify resort to §1983 for providing due process.

Yet the record shows that Osborne has been denied access to the evidence even though he satisfied each of these conditions. As for the requirement to claim testing by a method not available at trial, Osborne’s state-court appellate brief specifically mentioned his intent to conduct short tandem repeat (STR) analysis, App. at 171, 175, and the State points to no pleading, brief, or evidence that Osborne ever changed this request.

The State’s reliance on Osborne’s alleged failure to claim factual innocence is equally untenable. While there is no question that after conviction and imprisonment he admitted guilt under oath as a condition for becoming eligible for parole, the record before us makes it equally apparent that he claims innocence on oath now. His affidavit filed in support of his request for evidence under §1983 contained the statement, “I have always maintained my innocence,” id., at 226, ¶2, followed by an explanation that his admission of guilt was a necessary gimmick to obtain parole, id., at 227, ¶7.Since the State persists in maintaining that Osborne is not entitled to test its evidence, it is apparently mere makeweight for the State to claim that he is not entitled to §1983 relief because he failed to claim innocence seriously and unequivocally.

This is not the first time the State has produced reasons for opposing Osborne’s request that collapse upon inspection. Arguing before the Ninth Circuit, the State maintained that the DNA evidence Osborne sought was not material; that is, it argued that a test excluding Osborne as the source of semen in the blue condom, found near the bloody snow and spent shell casing in the secluded area where the victim was raped by one man, would not “establish that he was factually innocent” or even “undermine confidence . . . in the verdict.” Reply of Appellant, in No. 06-35875 (CA9 2008), p. 18; see also 521 F. 3d 1118, 1136 (CA9 2008). Such an argument is patently untenable, and the State now concedes that a favorable test could “conclusively establish Osborne’s innocence.”
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From:whswhs
Date:June 20th, 2009 04:27 am (UTC)
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What are those five justices trying to optimize?

The smooth working of the administrative machinery of government, unhindered by any troublesome concerns with individual rights.
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