Monday, July 13, 2009

The Supremes Strike Out

"Convicts have no constitutional right to DNA testing, the Supreme Court found, a ruling that left the accessibility of potentially critical evidence to the discretion of individual states. ... But the opinion, by Chief Justice John Roberts [JR] drew a sharp distinction between defendants, who are presumed innocent at trial, and convicts like William Osbourne, who was sentenced to 26 years imprisonment for kidnapping, raping and shooting an Alaska prostitute in 1993. 'A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man,' Chief Justice Roberts wrote, adding that it remains an 'open question' whether 'proof of "actual innocence"' is enough to overturn a conviction after a fair trial. ... Justice Stevens wrote that the state had refused to provide access to the evidence even though the burden was minimal", Jess Bravin and Jennifer Forsyth at the WSJ, 19 June 2009, link:

"The US Supreme Court ruled Thursday that former Enron broadband executive Scott Yeager cannot be retried on lingering charges because a jury in 2005 acquitted him of others related to the same alleged scheme. ... Justices Samuel Alito, Antonin Scalia and Clarence Thomas dissented, citing precedent that a retrial on counts on which a jury hung in a first trial is a part of the same prosecution, so protection against a second trial on the same allegations doesn't apply", Kristen Hays, at the Houston Chronicle, 19 June 2009, link:

"In an appalling 5-to-4 ruling on Thursday, the Supreme court's conservative majority tossed aside compelling due process claims, the demands of justice and a considered decision by a lower federal appeals court to deny the right of prisoners to obtain post-conviction DNA testing that might prove their innocence. ... Writing for the majority, Chief Justice John G. Roberts Jr. noted the 'unparalleled ability' to prove guilt or innocence using DNA evidence. But he treated that breakthrough more as an irritant than an oppotunity. ... As Justice Stevens noted in his dissent, 'There is no reason to deny access to the evidence and rthere are many reasons to provide it.' ... We are also puzzled and disturbed by the Obama administration's decision to side with Alaska in this case", my emphasis, Editorial at the NYT, 19 June 1009, link:

I opposed JR elevation to Supremes believing him a spoiled, unscrupulous child of privilege. This is the "Supremes" worst decision since Kelo. If proof of actual innocence isn't enough, what is JR? A writ from the Master himself? What did JR learn at Harvard Law School: to play word games. I hope on judgment day you are sent to Dante's Ninth Circle of Hell. JR and Alito making this decision, did not surprise me. That Thomas and Scalia exhibited such contempt for facts is shocking. I see the issue this way: In substance, SUBSTANCE, remember the law respects substance over form, Osborne moved for a new trial based on new evidence, an improved DNA test. Osborne offered to pay for the test with his own money. Alaska says no deal. If I were a Federal District Court judge hearing a habeas corpus case, I would release Osborne. Why? The best evidence rule, Clifton v. US, 11 L ed 957, 960 (1846), "The meaning of the rule is, ... no evidence shall be admitted, which, from the nature of the case, supposes still greater evidence behind in the party's possession or power". My presumption: Kenneth Rosenstein, Alaska Assistant Attorney General will not submit Osborne's DNA to a jury because it's already been tested and would exonerate him. What's JR's problem? Osborne be a "niggah" and ain't got no rights. JR, you disgust me to elevate "due process" whatever that means over substance. To call the trial "fair" begs the question. The Supremes here are just playing word games.

I agree with Scalia, Thomas and surprisingly Alito. JR switched sides on this case despite clear precedent. Why? JR saw Yeager is a white boy. Yeager may even be a Hogan & Hartson client. Further, by establishing this precedent, who knows who else JR can protect on Wall Street?

"Chief Justice" JR? That's an oxymoron if I ever read one. A problem with DNA evidence is: it is scientific and less susceptible to manipulation than words, a lawyers stock in trade. As science encroaches on the law, lawyers lose influence. A terrifying prospect for JR, a master word manipulator. Obama's failure to intervene in Osborne surprised me too. Did showing solidarity with fellow Harvard Law grad JR trump Obama's showing racial solidarity with Osborne?

I disagreed with the Supremes decision today in an employment discrimination case, that's three today.

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