Saturday, March 21, 2009

Post Conviction DNA testing

I have decided to open this article by stating that I have no intention of debating the morality or immorality of the death penalty. Personally, I feel that unless a heinous act was committed against one of my loved ones; I have no right to question its merit. The gist of this piece is the ongoing argument in the Supreme Court regarding the admissibility of DNA testing in a case in Alaska. I came across this article in the Washington Post and chose to research both the case and the arguments presented by members of the Supreme Court.

I find the nuances in this case to be somewhat perplexing. The focal point of this case is whether or not DNA testing should be allowed after an individual is convicted of a crime. In this instance, William G. Osborne was convicted of rape and leaving a prostitute to die in 1993. Osborne now contends that DNA testing will exonerate him of the crime. The argument is whether or not he is entitled to access of any past or future results of DNA testing. This is where the circus begins. If you want to see a classic example of partisanship; you need only look to our Supreme Court. In the majority of controversial cases regarding constitutional law, the vote usually comes back 5 to 4. Over the past few years, the deciding vote has been placed in the hands of Justice Anthony M. Kennedy. For more on Kennedy and his voting record, go to Not surprisingly, Justice Kennedy has been known to agree with arguments presented by both factions.

Alaska’s Attorney General has stated that a prerequisite for obtaining access to DNA results is that the convicted must swear under the penalty of perjury that he is innocent. As ridiculous as that sounds, it is in accordance with Congress’ own Innocence Protection Act. Naturally, a convicted rapist and murderer would certainly shudder at the thought of perjury charges being brought against him-WOW! To further emphasize this petty legislation is the fact that the convicted is obligated to incur the costs of any additional testing. If that’s the case; what’s the problem? I appreciate Congress looking out for us taxpayers but that is a non-issue here.

What further confuses me (it’s becoming clear that’s not very difficult to do) is a statement made by Defense Attorney Peter J. Nuefeld of the Innocence Project. He claims that the prosecution has conceded that the admittance of DNA results would erase any doubt as to whether Osborne is guilty. Am I missing something? Enter the Supreme Court with their litany of questions and concerns. Justice Paul Stevens opposes the admittance of this evidence parroting former President Bush by saying that this will only “open the floodgates” to frivolous and expensive appeals. Given Texas’ record on the death penalty, where Bush served as governor, this should come as no surprise. According to the Texas Coalition to Abolish the Death Penalty, 9 prisoners awaiting execution were exonerated because of DNA testing in 2008 alone. To date, 232 people have been released nationwide due to DNA test results. That figure alone is all the information I would need to cast my vote. Not so fast!

Chief Justice John G. Roberts presented this ridiculous question. If post conviction DNA testing is allowed; should that right be extended to those who confessed to their crimes? UNBELIEVABLE! Of course every confession has been obtained without any coercion (sarcasm); and this is our Chief Justice asking this question. Perhaps the only legitimate question posed was by that of Justice Kennedy to Attorney General Rosenstein. He inquired as to whether Rosenstein would “put aside procedural measures” to prevent imprisoning an innocent person. Rosenstein’s reply was that it was “conceivable.” Justice Kennedy was less than pleased with that answer.

From where I sit; the decision really shouldn’t be that difficult. Taking into account the number of people who have been exonerated coupled with the fact that these tests are not on the state’s dime; where’s the dispute? I have no idea whether Osborne is guilty but that is not the issue. I would like to see every available piece of evidence presented before we sentence someone to die. The technology is there-use it!!

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