by Leigh Lundin
This week, the Supreme Court reached a mind-boggling decision, an opinion more indicative of, say Iran, than a democratic people, a judgment that should offend conservatives and liberals alike. Led by Chief Justice John Roberts, the Supreme Court held convicted prisoners do not have the right to DNA testing, even if they are willing to pay for it themselves.
In some circles, this is seen as a slap-down of the Innocence Project, which has exonerated upwards of 250 prisoners, many of whom were on death row. At a minimum, the ruling adds a pinion in the machinery of capital punishment, a view court procedure and ‘finality’ is more important than actual justice.
It was no surprise that capital case enthusiasts Alito, Thomas, and Scalia voted en bloc, as they tend to rule for government and against individual civil liberties. In dismissing the evidence, one of the justices wrote that forensic science has "serious deficiencies".
My real disappointment is Justice Roberts, whom I had hopes for. He made a curious statement in regards to this decision, that such a court challenge "poses to our criminal justice systems and our traditional notions of finality better left to elected officials than federal judges."
Forgive him, but maybe he was getting his nails done at the time. I thought the criminal justice system was exactly the purview of the courts and not politicians, and for sound reasons, too. This raises another question: If a convicted person proves innocent, the implication is someone else is guilty. To my thinking, justice fails on two counts.
In 1993, William Osborne was tried in Alaska for the rape and assault of a prostitute. Before trial, he asked his attorney to test DNA evidence. According to Robert Morgentheau of the New York Daily News, his attorney either refused or did not follow through. Osborne petitioned the prosecutor’s office for a conclusive DNA test, but they refused, more interested in convictions than justice.
In the sixteen years since his trial, DNA matching has radically improved. The Innocence Project offered to pay for DNA testing and an appeals court sided with Osborne. No less than Former FBI Director William S. Sessions sought to have the evidence revealed, arguing the Justice Department should step in and demand testing since the department’s very name implies ‘justice’. He wrote "Why should our criminal justice system be afraid?"
However, the State of Alaska appealed to the Supreme Court, which sided with the prosecutor’s office: Once a defendant is tried, a prosecutor is under no obligation to turn over DNA evidence. Alaska state law allows convicts to challenge a conviction in cases with compelling new evidence, but with the refusal of prosecutors, there was no new evidence to put forth.
It is possible Osborne is guilty. Minimal testing in 1993 showed the perpetrator to be of African origin, and apparently conviction of being black is good enough in Alaska. But wouldn’t it be better to know for certain?
Roberts expressed a fear DNA testing risks "unnecessarily overthrowing the established system of criminal justice." Law professor Kevin Jon Heller ironically concurred: "It might lead to a reasonably accurate one."
I’ve mentioned my family is an eclectic and ecumenical admixture of Protestants, Catholics, and Jews. My father’s side was Quaker and the Friends have one simple Biblical rule: You don’t kill anyone. Anyone at all. For any reason. That includes capital punishment.
In 1988, Florida’s Death Penalty Governor, Bob Martinez, was in election trouble. Execution is popular here and he’d entered office signing death warrants so rapidly they clearly weren’t being read. Before he went on to fail as the nation’s first drug czar and fail as an executive in a security company, he failed as our state leader. Although he outspent his political oppenent by a 20-to-1 margin, it appeared unlikely Martinez would win reelection. His solution? Step up executions.
One case was that of Willie Jasper Darden, Jr, convicted of murder, although witnesses who were precluded from testifying placed him in a different part of town where his truck broke down in front of a police station. Darden was the only black man in the courtroom, a man the prosecutor said was "an animal who should be on a leash", a man who should have "his face blown off with a shotgun". Eyewitnesses never saw a lineup, but were asked to identify Darden at trial– the only negro present.
To my growing concern and eventual horror, I watched as Darden came ever closer to execution. Popes and presidents asked the governor for clemency. It was election time; Martinez refused and on 15 March 1988, the State of Florida executed yet another in a long series, this one likely innocent.
For the past dozen years, those on death row face a harsher reality, the federal Antiterrorism and Effective Death Penalty Act, the AEDPA. This Newt Gingrich legislation limits the federal court’s ability to determine whether a state court correctly interpreted the Constitution, cutting off avenues of appeal.
In 1991, the State of Georgia convicted a former coach in the Savannah Police Athletic League, a man signed up for the Marines, of the 1989 murder of Mark Allen MacPhail, a Savannah police officer working as a security guard.
Since his trial, two of the jurors submitted petition affidavits for a new trial. Seven of the original witnesses have recanted their testimony. Of the two remaining, Sylvester Redd Coles was considered the chief suspect. He was quoted moments before the shooting screaming to a homeless man "You don’t know me. Don’t walk away from me. I’ll shoot you." Officer MacPhail responded to the homeless man’s pleas for help and was killed for his efforts.
Once again, popes, presidents, judges, Georgia congressman Bob Barr, and former FBI director William Sessions have called for a new trial. However, unless the Supreme Court greatly surprises us, the odds of a writ of habeas corpus aren’t high.
We write about crime and usually our stories focus on detection, indictment, and conviction. We seldom write about what happens after trial, which can be criminal.