Sunday, June 21, 2009


I've written about the importance of access to post-conviction DNA testing and about District Attorney's Office for the Third Judicial District v. Osborne, that's the case in which SCOTUS decided last week that people who have been convicted of crimes have no constitutional right to DNA testing that might prove their innocence. And I've certainly written about Judge Sotmayor and the reasons I think she looks like a serious net loss for the criminal defense bar (and maybe others) assuming she is confirmed as an Associate Justice. What I haven't done is to address those things together.

I didn't do it when I read this moving story in the Times about Jeffrey Deskovic, an innocent man who spent 16 years in prison for a rape murder committed by another man. Soo a number of those years were because Judge Sotomayor (as part of a panel) denied him the right to DNA testing - testing he eventually got and which proved his innocence - because he filed some papers 4 days late at the direction of a court clerk.

But thanks to a wonderful post at Grits for Breakfast, I've now read Deskovic's own take on his story and on Sotomayor over at Politico, and it's devastating.

Here's the bottom line:
I would like an opportunity to testify at Sotomayor’s confirmation hearings to let the senators — and the country — know that we need a Supreme Court justice who understands the problem of wrongful convictions and is ready to correct them where the facts deem it necessary. Procedure should never be used as an excuse to override justice. The state must not be permitted to take away an individual’s liberty and later argue that his or her actual innocence is no longer relevant. Truth-seeking is central to our understanding of justice.

In my case, Judge Sotomayor did not demonstrate that understanding. If that is her idea of “empathy,” a trait that Obama sought in his appointee, then God help us all, especially those who are wrongfully convicted and possibly sentenced to death. Innocence can never be ruled as out of order in court.

And that, of course, takes us back to Osborne, back to the question of a right to the tools needed to prove innocence.

The Court has never said that it's unconstitutional to execute (let alone convict) the innocent. At least a couple of members of the court are on record as saying that it's not. But on what human scale must they (and prosecutors and lower courts, for that matter) live to think that it's OK, on any basis, to prevent people from trying to prove that the government made a mistake?

Making DNA testing theoretically available is only part of the battle, of course. Related topics I haven't yet discussed are the problems of lost or destroyed DNA-bearing material so that there's nothing to test and the nightmare world of those who are cleared by DNA but who still don't get the vindication - and in at least a handful of cases, even the release from custody - they deserve. More to come in those injustice files.

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