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February 20, 2009

More evidence Obama's DOJ is just not that into change in the criminal justice arena

Tony Mauro has this interesting new post at The Blog of Legal Times, titled "SG Won't Disavow Bush Position in Controversial DNA Case."  Here is how the post starts:

The solicitor general's office has turned down a request by the Innocence Project to disavow a Bush Administration stance on prisoners' access to DNA evidence in postconviction proceedings. As a result, on March 2, Neal Katyal will make his debut as deputy solicitor general by arguing before the Supreme Court in support of the state of Alaska's view that prisoners have no constitutional right to obtain DNA evidence that might help them prove their innocence -- even if the prisoners pay for the DNA testing themselves. The case is District Attorney's Office for the Third Judicial District v. Osborne.

The decision to maintain the same position as the Bush Administration in the case has caused deep disappointment among innocence advocates, especially in light of President Barack Obama's strong support of access to DNA evidence while a state senator in Illinois, where many of the early successes in exonerating innocent inmates through DNA evidence took place.

The episode also highlights the tension between a new administration's eagerness to change direction, and the institutional reluctance in the solicitor general's office to shift gears too suddenly, for fear of losing credibility with the high court.

As I have indicated in a number of prior posts, the Obama Administration has given very few signals that it is seriously interested in changing course on an array of lower-profile (but very consequential) criminal justice issues.  I am pleased to see the Innocence Project urging a new direction, and I hope lots of other public policy groups will formally advocate for the Obama Administration's litigation realities to match up with the new President's soaring rhetoric.  But, as this Osborne example spotlights, I fear that "change" may not amount to much more than a slogan in many federal criminal justice settings.

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February 20, 2009 at 04:30 PM | Permalink


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"for fear of losing credibility with the high court."

What does this mean? Why would there be a chance of losing credibility?

Posted by: George | Feb 20, 2009 5:07:19 PM

Doug, did you even read the briefings in the case? The Ninth Circuit's position is laughable.

Posted by: federalist | Feb 20, 2009 5:40:07 PM

Process takes precedence over truth. It is a disappointment.

Posted by: beth | Feb 20, 2009 6:42:18 PM

Ignoring the legal details, there's an interesting historical parallel. The complaints about criminals getting off on "legal technicalities" came about as a backlash to the Warren era. The public view was that judges were throwing out evidence that proved guilt and thus criminals got a pass. The complicated details of constitutional law were overshadowed by how easy it was to understand the prosecution's point of view.

But that was the 70s and 80s, which didn't have DNA. Now everyone knows about DNA and exonerated prisoners, sometimes from death row. Pop culture has really put it in the forefront with CSI etc, showing the lab techie declaring "its him!" or "no, its not him :-(". In other words, the DNA would not result in a legal technicality situation (not in favor of the defendant anyways).

So if the SC rules completely in favor of AK, it'll be interesting to see how this plays out and which direction the rest of the country moves.

Posted by: . | Feb 20, 2009 6:54:33 PM

I don't find it laughable to say that due process requires the state to turn over evidence for testing at the prisoner's expense and for testing that was unavailable at the time of trial, the results of which could conclusively exonerate the prisoner.

To me, the entire case is silly. Silly that the state just doesn't turn over the evidence. What possible reason is there not turn over evidence potentially showing that an innocent man was convicted, when there is ZERO cost to the state.

Silly because much of the dispute seems to center around whether the (potentially innocent) prisoner appropriately filed a 1983 claim, instead of a habeas claim. In my mind, a 1983 claim is the more responsible route. A habeas claim would be saying "I am actually innocent, release me," whereas the 1983 claim more appropriately states "I am innocent, but I don't have the evidence to prove it, but such evidence is in the government's possession and they won't give it to me, which violates my rights." This seems the more legally responsible position to take.

If the 9th Cir. is reversed (which may be likely), it will be a shame b/c this entire case can be settled by merely turning over evidence to see if the right person is in jail. If it exonerates him, set him free. If it doesn't, we should all be glad to know the correct person is imprisioned.

Posted by: silly | Feb 20, 2009 7:19:20 PM

I hate to sound like a broken record but no one should be disappointed or surprised. Obama has liberal values but he has always been very conservative about the process. Always. If you haven't figured that out yet, you haven't been paying attention.

Posted by: Daniel | Feb 20, 2009 7:41:38 PM

Yeah, that Judge Brunetti, he's really known for his "laughable" liberal opinions, isn't he?

Posted by: ORLawyer | Feb 20, 2009 7:49:28 PM

I suspect that the Court's interest in this case has less to do with the DNA issue and more to do with the Court's ongoing interest in delineating the borderlands between 1983 and habeas actions. Anyone else have a similar view? I wonder if that may have influenced the Obama administration's position.

Posted by: 11:33 | Feb 21, 2009 11:33:32 AM

I guess I shouldn't be disillusioned, Obama does not seem to be interested in anything except the economy

Posted by: Ferry County Attorney | Feb 21, 2009 6:13:52 PM

The Obama administration is indeed disappointing, serially so. But Osborne will be affirmed. As a legal question, it's very straightforward. How anybody could read the 9th Circuit's opinion and find it "laughable" is beyond me (is it really so difficult to understand what a "necessary implication" is?). For the Supreme Court to reverse, it will have to make a major doctrinal change in its jurisprudence regarding the line between 1983 and habeas.

Posted by: DK | Feb 22, 2009 1:06:58 AM

Refusing to withdraw/amend the brief is one thing, but it will be interesting to see how the Deputy SG argues it: full-on advocacy? lukewarm, pro forma recitation of arguments from the brief? Chicago-White-Sox-1919 level tanking?

Posted by: Anon | Feb 23, 2009 8:38:27 PM

Guys, Osborne won't even swear under oath that he's innocent.

Posted by: federalist | Feb 23, 2009 9:05:06 PM

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