Friday, December 17, 2010

On Burying One's Head in the Sand: The Arkansan Ostrich

His name is Kenneth Isom.  And maybe he did commit the murder and rape and burglary and robbery which all landed him on death row in Arkansas.  He was positively identified by the eyewitness/rape victim.  DNA from a hair at the scene was consistent with him.  But he says he didn't do it.
He wants more DNA testing, and he wants that DNA compared to the DNA of two men.  He says he's related to them, and that they have been suspects.  The good people of the state of Arkansas, through their duly elected or appointed or however they get in office in The Natural State (the rest of us, apparently, live in states of artifice) government officials think that's a bad idea.
So, here we go again.
  • Guy on death row.
  • Guy says he didn't do it.
  • Guy says DNA can prove he's innocent (and can prove who's guilty, by the way).
  • State says don't test it.
  • State says he's guilty enough or there's surely no mistake because that doesn't ever happen here in the state of nature or something.
  • State Supreme Court weighs in.
As I said, we've been down this road before.
The trial court said no.  
No test.  No need.  Close enough for government work.
Up the case goes on appeal.  Yesterday the Ohio Texas Alabama Arizona Alaska US Arkansas Supreme Court ruled.
The proper test, they said (lawyers will guess, the rest of you can just shake your heads) is not whether the lower court was right in deciding against ordering the DNA tested.  The proper test is whether the lower court abused its discretion in not ordering the test.  An abuse of discretion is, the courts say, a matter of whether the decision was arbitrary or irrational.  Merely being wrong doesn't qualify.
And, of course, if the question is whether the lower court was insane to deny the test, the answer is that it was not.
Wait, it's actually more complicated than that.  Three justices agreed that the test was abuse of discretion.  Two justices said that the test was whether the lower court's decision was "clearly erroneous."  (Forget how it sounds.  It's much easier to show that a decision is clearly erroneous than that it was an abuse of discretion.)  Of course, it wasn't that, either.
Wait again.  Chief Justice Hannah agreed that the proper measure of the lower court's decision was whether the court abused its discretion.  Chief Justice Hannah also agreed with Justice Danielson that abuse of discretion was the wrong standard and that the court's decision should be measured by whether it was clearly erroneous.  (You really can't make this shit up.)
But there was a dissent.  
Isom’s request for the trial court to allow additional testing of a known suspect, Mr. Avery, was reasonable.  Had the testing been available at the time of trial, Avery could have been ordered to be tested under our laws. The majority’s conclusion that the trial court’s refusal to order additional testing was justified because the results were inconclusive fails to recognize that no testing of Avery has been conducted.  As for the possibility that Avery may have been matched, thus giving Isom the reasonable probability that he is innocent, we will never know.
One more time.  Maybe he's guilty.  
But maybe, just maybe, he's not.
Me, I'm with the dissent.  I'd want to know.
Which is maybe why I don't get to decide these things.

1 comment:

  1. Exactly. You don't get to decide these things because you would do it right.

    The way it is now, it's completely disingenuous. "Abuse of discretion", "clearly erroneous", "preponderance of the evidence", blah blah. All these so-called standards are employed in a manipulative and pre-ordained fashion. They are nothing but ex post facto rationales for what the judge wants to do. Overwhelming proof can be derided as "speculation" and speculation can become "overwhelming proof" depending on who's ox is being gored.

    The degree to which these appellate decisions increasingly represent a sort of school marm mentality - "If we do it this time we'll have to go to a lot of trouble in every other case..." - is pretty disturbing. As if this all boils down to how much trouble we're going to have to go to.

    Yeah, I'd like to know, too, no matter how much trouble it causes. But they don't let me decide "these things" either.