THREE DEGREES OF SEPARATION

Thinking about yesterday's decision in Melendez-Diaz led me to think about last week's decision in District Attorney's Office for Third Judicial Dist. v. Osborne, and thinking about Osborne led me to think about the Court's 1988 decision in Arizona v. Youngblood. Which led me to think about Larry Youngblood. And I really want to tell you about Larry Youngblood. But maybe it really started with this post at Mark Bennett's blog, Defending People.

Got all that? OK, here's how it all worked in my mind.

Bennett first. He quotes from a comment to this post he found from a couple of years ago at Ann Althouse's blog.

One of the most annoying things about lawyers is the way they casually conflate “law” with “justice.” To clarify: justice is a concept in philosophy; also to some extent in psychology, sociology, economics, etc. Law is what a bunch of mostly long-dead politicians thought would get them reelected. There’s no connection between the two. None. The relation between law and those other fields is much like the relation between astrology and astronomy…except that astrologers don’t have guns.

If you actually start thinking about that (and of course, the commentor is basically right, though we hope that the system of law comes within hailing distance of justice at least a fair percentage of the time), you get to thinking about just how law can even try to get to justice. When you do that, you get caught up in the confusion between proof and truth.

There are judges and justices who believe that our system is supposed to be a neutral search for truth (whatever that might be). But it's not. It's an adversary system in which the question is whether the party with the burden of proof on a question (in the criminal system, that's typically the government and its burden is to prove things beyond a reasonable doubt) has done that job. In the criminal system, defense counsel's job is primarily to leave the jury with just that reasonable doubt. Justice White explained how all this works with a special focus on the role of defense counsel in a concurring and dissenting opinion in United States v. Wade (I'm omitting the footnotes).

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution's case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State's case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.

Anyway, when you think about it that way, you realize the unassailable logic of why the Constitution requires Melendez-Diaz: You can't just accept evidence the state offers. You have to be able to challenge it. And you also recognize that the argument over whether there's any need to challenge what crime labs conclude isn't just trivia. Although he says it's not central to the decision, Scalia spends several pages reporting on the deficiencies of forensic labs and forensic testing and on the lack of integrity too often found in those doing the testing.

All of which perhaps makes the decision in Osborne so sad. Chief Justice Roberts, writing for the Court, acknowledged that DNA is a powerful tool for proving innocence, but he didn't see that the Constitution requires it's availability. You know, innocence is so messy, and why do we care, anyhow. This is, after all (and again) a system about proof, not truth. Just ask Justice Scalia who (joined by Justice Thomas) made perfectly clear (here) that he believes there to be no constitutional impediment to

the execution of an innocent man who has received, though to no avail, all the process that our society has traditionally deemed adequate.

But see, when you start thinking about proof and evidence and then about government cock-ups and then about DNA and then about the right to show you're innocent, well at that point you're knocking on Larry Youngblood's door.

Youngblood was convicted of kindapping and repeatedly sodomizing a 10-year-old boy. Based on the boy's description and identification, Youngblood was arrested and then convicted by a jury. He was sentenced to over 10 years in prison. All the while he maintained that he was innocent, a victim of mistaken identification. The problem, his expert witnesses testified at trial, was that the biological evidence had been improperly stored and therefore it was degraded and unavailable for testing that would prove his innocence. That incompetence on the government's part, he said on appeal, corrupted the adversary system, deprived him of his constitutional rights, and required that he be freed.

The Arizona courts agreed, and after spending three years in prison, Youngblood was released. In 1988, though, the Supreme Court reversed that conclusion. In Arizona v. Youngblood, Chief Justice Rehnquist, writing for a 5-4 majority, explained that since he couldn't prove that the destroyed evidence would have shown him innocent (after all, it had been destroyed), and since he couldn't show that the cops acted out of malice rather than incompetence in allowing the evidence to be destroyed, he had no real beef with the system. Basically fair, adequate, procedure. All we care about.

After another few years futzing around with the courts in Arizona, Youngblood went back to prison.

And then there's this. In 2000, new, sophisticated techniques made it possible to test that old biological evidence. Larry had been telling the truth. He was innocent. More, the testing revealed the actual bad guy, a fellow named Walter Cruise, who was convicted of the crime in 2002.

As Ross Parker argues in this post from TickletheWire.com (and thanks to Fred Whitehurst for pointing it out), there's really no excuse for not finding a constitutional right to finding an innocence protection clause in the Constitution. Seems like it's about time.

I'm not sure I want a system that routinely elevates Justice over Law. But I'm damn sure I don't want one that always elevates Law over Justice, either.

*********

By the way, you can read more about Larry Youngblood and his story here.