Monday, March 9, 2009

Join death penalty rally/The Supreme Court Confronts A Mystery

 Come out on Mon., Mar. 9 for Citizen Lobby Night for Death Penalty Repeal.  Gather from 4 to 8 PM at St Anne's Parish Hall, 199 Duke of Gloucester St., Annapolis.  There will be inspirational remarks at 5 PM from Sr. Helen Prejean.   Make appointments with your legislators today. Call MD CASE at 301-779-5230.

Members of the Pledge of Resistance-Baltimore will meet at the Rotunda back parking lot and leave promptly at 4 PM in order to hear Sister Helen’s talk.  RSVP to Max at 410-366-1637 if you intend to join the carpool.

The Supreme Court Confronts A Mystery

by: Elizabeth de la Vega

t r u t h o u t | Perspective

03 March 2009

http://www.truthout.org/030309J

 

In one sense, the matter of District Attorney's

Office for the Third Judicial District v. William G.

Osborne - which was argued before the US Supreme

Court on March 2 - is a whodunit. Both before and

after his conviction, William Osborne has maintained

he is not the man who participated with Dexter

Jackson in a brutal rape and kidnapping that

occurred sixteen years ago on a secluded Anchorage,

Alaska, road. He is, he says, the wrong guy.

 

Of course, the identity of the second rapist is not

an issue for the Supreme Court to decide.

Ordinarily, the justices consider only matters of

law. But in order to address the legal questions

raised by the Osborne case, the court will have to

confront a different mystery: Why has the State of

Alaska fought tooth and nail for more than half of

Osborne's adult life to deny him access to

biological evidence for purposes of sophisticated

and precise DNA testing (called Short Tandem Repeat,

or STR) that can - as former Fourth Circuit Judge J.

Michael Luttig has put it in another context - make

it "literally possible to confirm guilt or innocence

beyond any question whatsoever?"

 

Did Osborne waive an opportunity to apply this test

to the evidence before his conviction? Nope. There

is no dispute that this methodology did not exist at

the time of the 1993 trial. Is it the cost? Nope.

The Benjamin Cardozo School of Law Innocence Project

has agreed to pay the $1,000 fee. Why, then, do the

prosecutors from Alaska stubbornly refuse to open

the evidence locker? There appears to be no good

reason - or almost any reason at all.

 

Admittedly, Alaska has no statutory provision for

post-conviction DNA analysis. (It is one of only six

states without a law that allows such tests when a

defendant shows that favorable results would create

a "reasonable probability" of innocence.) But why

not simply consent to the STR test as other states

have done in similar situations?

 

That, in substance, is what a three-judge panel from

the Ninth Circuit Court of Appeals wanted to know in

2007 when the parties appeared for yet another

appellate argument in the ten-year multi-court

litigation, this time because the State of Alaska

was seeking reversal of a lower court's order to

turn over the evidence for DNA testing. As counsel

for the state stood at the podium, the judges asked

repeatedly: Why is the state continuing to deny

access? The answer was remarkably consistent, if

astounding: We are not "willing or able" to answer

those questions "at this time."

 

Not surprisingly, the Ninth Circuit Court of Appeals

was underwhelmed by this response. Affirming the

district court's order to turn over the evidence, it

held that "under the unique and specific facts of

this case and assuming the availability of the

evidence in question [Osborne] has a limited due

process right of access to the evidence for purposes

of post-conviction DNA testing."

 

It remains to be seen whether the Supreme Court will

divine a legally acceptable basis for the State of

Alaska's decade-long refusal to allow Osborne access

to the very same evidence it used to convict him so

he can conduct a DNA test capable of exonerating

him. Osborne's attorneys faced some tough questions

at oral argument. But the truth is, one would have

to search long and hard in the State of Alaska's

written submissions for a rationale of any sort that

does not defy logic.

 

Consider, for fun, the state's procedural objection

to the case, which has such a distinctly Alice-in-

Wonderland quality that it is difficult even to

explain. But here goes:

 

The State Gets Ahead of Itself

 

To understand the State of Alaska's convoluted

position, you first need some background on two

federal legal remedies available for state

prisoners. Each has a distinct purpose and allows

for a different type of relief. The first -

affectionately known as 42 U.S.C. 1983 - only allows

lawsuits that allege deprivation of federal

constitutional rights relating to conditions of

confinement. This is interpreted somewhat broadly:

If your prison had no law library, for example, you

could sue under Section 1983 alleging a deprivation

of your constitutional right to meaningful access to

the courts. If you prevailed, you could possibly get

monetary damages (although probably not) and an

injunction ordering the prison to provide the law

books. You would not, however, get out of jail just

because your Section 1983 action was successful.

Indeed, the Supreme Court has ruled that Section

1983 cannot be used as the basis for a lawsuit that

will necessarily lead to immediate release.

 

The only remedy that does allow a state prisoner to

be freed from custody based on a federal

constitutional violation is habeas corpus. And it is

only available where the violation alleged could

make the very fact of confinement illegal. If, say,

you wanted to allege your conviction was

unconstitutional because it resulted from

ineffective assistance of counsel, your appropriate

course would be to file a petition for habeas

corpus, alleging a violation of the Sixth Amendment

right to counsel. If you were successful, the relief

would be release from prison.

 

So what does all of this have to do with Osborne and

the State of Alaska?

 

Well, the lawsuit that Osborne has been pursuing all

these years is based on 42 U.S.C. 1983.

Specifically, he claims that the state's refusal to

provide the evidence deprives him of liberty without

due process of law in violation of the Fourteenth

Amendment. He is not asking to be released from

prison if a violation is found. Quite explicitly,

the only relief Osborne is seeking is an injunction

requiring the State of Alaska to give him access to

the evidence for DNA analysis.

 

In order to put up a procedural bar to the case,

however, the State of Alaska has chosen to ignore

the unambiguous nature of Osborne's complaint. It

argues that since Osborne's ultimate motive is to

get out of prison, his Section 1983 action should be

dismissed and he should be required to file a

federal habeas petition.

 

The Ninth Circuit gave short shrift to this

contention, noting that if Osborne wins his Section

1983 suit, the only relief available will be access

to the evidence. That's it. If the STR testing were

to show that he is innocent, he would then have to

initiate an entirely separate proceeding, or perhaps

file a petition for clemency, in order to get out of

prison. If the test did not exonerate him, of

course, that would be the end of it. In other words,

the Court of Appeals said, "The state is getting ahead of itself."

 

Catch-22

 

The problem with the State of Alaska's artificial

roadblock to Osborne's simple request is not simply

that it is illogical; it is disingenuous, at best.

Why? Because, as the case now stands, in order to

file a habeas petition seeking release from prison,

Osborne would have to make what is known as a

"freestanding claim" of actual innocence. To attempt

to prove that he is actually innocent, however,

Osborne needs to obtain the biological evidence he's

been trying to get for so long. In order to obtain

this evidence in a lawsuit, he needs to be entitled

to discovery. But, here's the rub: Under federal

law, habeas petitioners are not entitled to

discovery. A district court may require them to

proceed with the evidence they have at the time they

file the case. As Osborne's attorneys argued to the

Supreme Court, this Catch-22 formulation could not

possibly be an accurate reflection of the law:

 

Indeed, it would be passing strange if a prisoner would

be obligated to file a habeas petition seeking relief

based on actual innocence without any evidence to

support that claim, for the sole purpose of obtaining

that evidence in discovery. (n.9)

 

The State of Alaska's ten-year denial of access to

Osborne for purposes of this cost-free test is also

passing strange, and quite possibly tragic. Osborne

may or may not be innocent, but STR analysis is now

universally recognized as reliable and accurate to a

degree that removes all possible doubt. The state

has no legitimate interest in incarcerating a person

who is innocent and it has a compelling duty to

apprehend one who is in fact guilty. Equally

important - as former Attorney General Janet Reno

and the many other prosecutors who jointly filed an

amicus brief pointed out - the job of a prosecutor

is to do justice, not merely to win the case. We can

only hope that the Supreme Court will ultimately see it the same way.

 

Elizabeth de la Vega is a former federal prosecutor with

more than 20 years of experience. During her tenure, she

was a member of the Organized Crime Strike Force and

chief of the San Jose Branch of the US attorney's office

for the Northern District of California. Her pieces have

appeared in a variety of print and online publications

including Truthout, TomDispatch.com, The Nation, The Los

Angeles Times, Salon, Mother Jones and The Christian

Science Monitor. The author of "United States v. George

W. Bush et al," she may be contacted at

ElizabethdelaVega@Verizon.net or through Speakers Clearinghouse.

 

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