Guilty until proven guilty

Freedom Watch
By HARVEY SILVERGLATE  |  June 24, 2009


The US Supreme Court's June 18 decision denying prisoners access to DNA testing — a procedure that could reliably prove innocence — adds to the high court's decades-long shameful record on criminal-justice issues. Essentially choosing closure over accuracy, the five-justice conservative majority disregarded the hundreds of cases in which DNA evidence led to exoneration, and will now let states proceed as they wish.

The bad news for Bay Staters: along with Alabama, Alaska, and Oklahoma, Massachusetts remains one of only four states that do not assure access to DNA evidence to convicted prisoners. Thus, a wrongfully convicted Massachusetts resident could find him or herself in much the same situation as Alaska inmate William Osborne, the defendant whose DNA-testing requests were denied in this baffling decision.

Osborne had been sentenced by Alaska to 26 years for kidnapping, raping, and shooting a prostitute in Anchorage in 1993. Almost a decade after his conviction, he sought a new type of DNA test — one far more advanced than those available in 1993 — to determine his guilt or innocence.

When Alaskan authorities thwarted this modest request — Osborne, with the Innocence Project's assistance, was prepared to pay all costs — he sought federal court intervention on the theory that surely the US Constitution's "due process of law" clause would assure access to the crime-scene bodily-fluid samples from his own trial. Chief Justice John Roberts, writing for the majority, disagreed: Alaska's supposed interest in the finality of the verdict was more important than its accuracy.

The four dissenting justices — the high court's liberal wing — decried Alaska's obduracy. Justice John Paul Stevens wrote that "for reasons the state has been unable or unwilling to articulate, it refuses to allow Osborne to test the evidence at his own expense and to thereby ascertain the truth once and for all."

This battle between finality and justice is hardly new, recently having divided Massachusetts judges. During the child-sex-abuse panic of the 1980s, three members of the family-run Fells Acres day-care center in Malden were convicted of child rape and sentenced to long prison terms. Lower court judges began to assess emerging new evidence that the trials were grossly unfair and that the crimes never even took place; for instance, it was revealed that the children's testimony was the product of suggestive-interrogation techniques by police and social workers. Yet successive efforts (in 1993, 1997, and 1999) by three different Superior Court judges to release members of the Amirault family were reversed by the Supreme Judicial Court. At one point, the state's famously liberal high court countered by announcing the primacy of "finality," supposedly (and ironically) in order to foster public confidence in the criminal-justice system!

But earlier this year, Massachusetts's intermediate appellate court freed Bernard Baran (disclosure: I was one of his lawyers), who was 19 when convicted on similar sex-abuse charges, and who spent 21 years in prison. After reviewing later-discovered (and long-hidden) evidence that the child-victims' testimony, given at Baran's 1985 trial, was concocted by similar suggestive-interrogation techniques, the court sprung the innocent man. In its decision, the court disavowed the discredited "finality doctrine." The US Supreme Court now must catch up.

Meanwhile, efforts by the ACLU of Massachusetts and the New England Innocence Project to get the legislature to enact a post-conviction DNA statute remain unsuccessful. The Supreme Court's widely ridiculed refusal to grant scientific knowledge its due may finally push our lawmakers to do the obvious and bring Massachusetts into the 21st century.

Related: Speak no evil?, Supreme court, Impeach John Roberts, More more >
  Topics: News Features , U.S. Government, Criminal Sentencing and Punishment, John Roberts (Chief Justice),  More more >
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