I come before you today not to praise the Chief Justice of the Supreme Court of the United States, but to condemn him. I say this to you as one who defended the nomination of John Roberts by George W. Bush. While I fretted over the potential fallout, I maintained then, as I do now, that the president had the right to select his own nominee and that Roberts’ qualifications far exceeded the minimum bar, even as he brought gravitas and powerful writing skills to the bench. This week, however, my fretting at the time has proven well founded.

In an appalling 5-to-4 ruling on Thursday, the Supreme Court’s conservative majority tossed aside compelling due process claims, the demands of justice and a considered decision by a lower federal appeals court to deny the right of prisoners to obtain post-conviction DNA testing that might prove their innocence.

Writing for the majority, Chief Justice John G. Roberts Jr. noted the “unparalleled ability” to prove guilt or innocence using DNA evidence. But he treated that breakthrough more as an irritant than an opportunity.

The availability of conclusive DNA testing, he wrote, “cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt.”

The fact that a justice can recognize the potential of new technology to render a far more conclusive result and then turn his back on it because of the inconvenience it might cause to the legal system is beyond “appalling” by any measure. In a fairly rare instance, I find that I must agree with Matthew Yglesias here.

Obviously, the purpose of the established system of criminal justice is to use punishment of the guilty as a means of controlling crime. The general hostility of most people in the law enforcement and prosecutorial universe to exonerating evidence is a little bit hard to understand.

This isn’t the first time that Roberts has steered the ship of justice directly toward the rocks. Yglesias points to a very apt description from Jeffrey Toobin in the New Yorker.

In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

It’s interesting to me that I was engaged in a debate on this subject back in the very early days of 2008 with my friend Ed Morrissey. He was, in only a half joking way, working at that time to ensure that if nothing else happened, I would not vote for Hillary Clinton in the fall of last year. We didn’t even have a Democratic nominee at the time, so the conversation was entirely hypothetical. But during that period I had spent a lot of time reflecting on the makeup of our highest court, the recent changes we had seen and what it portended for the future.

At that time, I spent a brief period concluding – as I told Ed to his great dismay – that regardless of how I felt about a variety of domestic and foreign issues, I would wind up voting for whoever the Democrats nominated (yes.. even Hillary) just to avoid having John McCain put another Robers or Alito on the bench. I later decided that the “small L” libertarian leanings and fiscal conservative promise of Bob Barr were too much to resist, and he got my vote. But decisions like the one above almost make me wish I’d cast my lot with Obama, no matter how badly I feel he is handling the economy.

George W. Bush was perfectly within his rights to select Roberts, and the Chief’s credentials remain everything they must be to hold his position. But the man has been nothing short of a disaster for the direction I want to see our highest court going, and if Obama does nothing else right, I hope he at least gets to beat back the tide there. Failing that, he needs to at least preserve the status quo.

JAZZ SHAW, Assistant Editor
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Copyright 2009 The Moderate Voice
  • Roberts doesn’t submit individual rulings. If his bias is pro-executive/pro-prosecution/etc then how would you parse the bias of those ruling along with him? (Not including Scalia that is.)

  • PJBFan

    I fear, even as an aspiring defense attorney, that Chief Justice Roberts is correct, and, though my sympathies politically lie with the dissent, I believe that the . Our system does not really allow for corrections that are based on mistakes of fact, merely mistakes of law. Much as we might like to correct errors in fact, that is not what appeals courts do. The decision, I think, was properly decided.

    • mikkel

      Huh? I’ve never heard this before. What about the countless “exonerated by DNA evidence” or “new witness claims” overturnings?

  • I hate to be the one to break this to you, but the Obama Administration sided with the majority in this case.

  • tidbits

    Our system of justice was specifically designed to attempt to protect the innocent from conviction. That’s what many of those pesky ideas in the Bill of Rights are about. If we have an additional tool thanks to the advances of science, it should be used. Even if you are pro-prosecution, you should, as a matter of basic fairness, want to insure that anyone who was wrongly convicted have that conviction overturned

    As to our lawyer friend, PJBFan, newly discovered evidence is a basis for setting aside a conviction and ordering a new trial. The evidence itself is fact, but the right to gather evidence is a matter of law. And, when you say “our system does not really allow for corrections that are based on mistakes of fact…” you are incorrect. Please read the statutes and case law in the jurisdiction in which you practice on the subject of basis upon which motions to set aside convictions and order new trials can be brought. You will find that those statutes specifically include mistakes of fact and newly discovered evidence. Project Innocence, which is devoted to freeing the innocent based on DNA evidence, built its entire existence on such statutes. To you,as an aspiring defense attorney, I would suggest that you volunteer for some
    post-conviction work, and see how the after conviction game is played.

  • I believe the majority’s decision was based partly on the fact that this is a legislative issue, and legislatures are allowed to be wrong. Check out the discussion at the civil-libertarian law blog Volokh Conspiracy for some excellent discussion.

    Obviously, everyone is in favor of an innocent person having the opportunity to clear his name (and get out of jail). But who owns what part of the legal process is the source of the debate here.

    • tidbits

      AVI – I take your point, though I disagree. Putting form over substance, process over prinicple, often results in excusing injustice.

      One of the reasons I oppose the nomination of Sonia Sotomayor, in addition to certain comments at speaking engagements, is that her record is that of a jurist who puts form over substance and process over principle. The Ricci case (firefighter promotion) is just one example of her doing a government first, people second, process over principlle analysis. Her record is replete with this kind of judicial philosophy.

  • rudi

    One can only hope that Kennedy comes to his senses and shifts his vote over to the liberal side.

  • GeorgeSorwell

    I can’t do better than this, the first comment (by a guy named Brian L) at Yglesias’ site:

    It always amazes me that an ideology that is so convinced that the government is the problem and can do no right in all other aspects of life can believe so firmly that government can do no wrong in the prosecution and punishment of crime.

  • tidbits

    DNA evidence is primarily of use in the most violent of crimes, particularly rape and murder, where blood, semem, skin scrapings and fully follicled hair samples are available for testing. Failure to use that evidence, even after conviction, to identify the innocent results in not one, but two, unacceptable results. 1. An innocent person languishes in prison, and 2. A violent criminal continues to walk free among us.

    Only after identifying that a person was wrongly convicted will the authorities reopen the case to try to identify and convict the real perpetrator. This issue is neither liberal nor conservative. It is as much an issue of law and order as it is one of civil liberties.

  • Appeals courts do not rule on new evidence. They only determine if the rules of law were followed correctly in determining guilt or innocence. If DNA evidence was excluded, but would have shown the defendant to be not-guilty, then the appeals court is not being asked to consider new evidence – i.e. whether or not the DNA evidence actually proves non-guilt – but whether or not the DNA evidence was properly excluded or not. If it was properly excluded; then the conviction stands.

    Even if the court rules that the DNA was improperly excluded, the only thing that happens is that the conviction is set aside and a new trial, which would include allowing the DNA evidence, would be ordered. Sometimes prosecutors decide not to pursue a new trial, but that’s their decision.

    Even when the appeal moves from a state to a federal court, the defense is only claiming that the defendant’s federal rights were violated. Here, again, the case could be made that the DNA evidence would provide a better defense and was unfairly excluded. But the trial would center around the decision to exclude DNA evidence, not what that DNA evidence says about guilt.

    The only place where new facts are considered are upon appeal to the Supreme Court, either state or federal. However, it is the Court itself that determines whether or not the facts of the trial are examined and new evidence is allowed.

    Note that there is no federal right that says, “An innocent man shall not be convicted.” Of course, we try to obtain that outcome. But if we guaranteed that no innocent person would be convicted, then we would have an ineffectual justice system. The only people who would be convicted, basically, are those who admit their guilt – which no one would, since they could avoid going to jail simply by claiming they were innocent.

    • tidbits

      My God, TH, you are wrong on so many levels, I don’t know where to begin. BTW, I generally like your posts, but this is over the top.

      “there is no federal right that says, ‘An innocent man shall not be convicted.’ ” That’s not the issue. The issue is, if an innocent person has been convicted, and it can now be proven that he/she is innocent, should that person have the right to clear his/her name. Entirely different question.

      “Appeals courts do not rule on new evidence.” Absolutely false. Appeals courts do, in fact, rule on whether proffered new evidence in a post-conviction proceeding was sufficient, as a matter of law, to overturn a conviction and grant a new trial. Nor is it , as you suggest, limited to what was excluded at the original trial. Further, appeals based on ineffective assistance of counsel are often founded on new evidence that could have been discovered had the attorney done an effective job of representation at the trial level.

      Our system is not based on the theory that the innocent shall never be convicted. It is based on the right of everyone to receive a fair trial. If a fair trial was denied because exculpatory evidence was discovered after the original trial, either because of ineffective assistance of counsel or because the technology did not exist at the time of trial, or a subsequent confession by another did not exist at the time of the original trial, or exculpatory evidence was withheld by prosecutor or police, we overturn convictions and grant new trials. Project Innocence has set hundreds of convicted innocents free on this basis (DNA in particular); the former Republican Governor of Illinois commuted every death sentence in the State after irregularities were discovered…and after several wrongly convicted individuals were set free by the courts.

      “The only place where new facts are considered are upon appeal to the Supreme Court…” Just not true. Post conviction cases, on the premises described above and often involving newly discovered evidence, begin at the trial court level, then proceed to the Court of Appeals, then to the Supreme Court, state or federal.

      Never before have I found it necessary to post my cred on an issue, but you force my hand. Prior to becoming a slobbering retired fool posting comments on silly websites, I was, in 1997, 1998 and again in 1999, voted by my peers to be one of the top three criminal defense attorneys in a five state area. My experience includes more than 40 capital murder cases with only one client having ever received a sentence of death. It also includes significant post-conviction work, experience with DNA evidence and experience in raising issues of newly discovered evidence in multiple cases.

      • I’m not sure how I forced your hand on revealing your cred, tidbits. I wasn’t trying to single you, or anyone else, out.

        “The issue is, if an innocent person has been convicted, and it can now be proven that he/she is innocent, should that person have the right to clear his/her name. ”
        Of course. But the question also is which court hears what. Personally, I don’t mind a person having an unlimited number of tries at clearing their name. But the type of court one argues before will determine one’s arguments. If one is arguing before a trial court, then the argument is over guilt or non-guilt. If it is before an appeals court, it is over whether or not the defendant had a fair trial. Obviously, this includes looking at exculpatory evidence that might have been withheld or not available at the time of the trial. But it is still the court proceeding that is being appealed. The exclusion of such-and-such evidence violated the right to a fair trial, therefore the trial is tainted. That’s my understanding of the process.

        I didn’t, and don’t, mean to say that it is limited to looking at what is or was excluded. That was only an example. Obviously, an appeals court looks at a lot more than the rules of evidence. It’s job is to ensure a fair trial was held. Whatever impacts the fairness of a trial is within their baliwick.

        But one cannot simply go ask for an appeal because the defendant claims the wrong answer was brought back by a jury. The appeal has to be couched in terms of the fairness of the finding. If “the jury is simply wrong” is a ground for appeal; then there is little reason to have a trial court in the first place. Simply boot everything to the appelate court for the more athoritative ruling.

        “Our system is not based on the theory that the innocent shall never be convicted. It is based on the right of everyone to receive a fair trial.” Well, I think that is what I said. If I was unclear, then let me correct that – it is what I meant.

        “If a fair trial was denied…we overturn convictions and grant new trials.” Again, I believe this is what I said. The appeals court finds that a fair trial was denied and sends it back to a trial court with instructions on how to proceed. But, as far as I’m aware, the appeals court does not say, “We disagree with the lower court, so the defendant is free. Bleah!”

        …”the former Republican Governor of Illinois commuted every death sentence in the State after irregularities were discovered…and after several wrongly convicted individuals were set free by the courts.”
        The action of the governor is different than that of the courts. The Governor has the power to commute or pardon any person for any reason. Boom. Doesn’t matter what the evidence is (though most will use such power lightly and only upon strong evidence that it should be used). The courts can’t simply let people go – due process has to be followed. That due process includes setting aside a previous finding of guilt because exculpatory evidence was not introduced and remanding it to a lower court for retrial – although, honestly, if the exculpatory evidence is DNA that proves the convicted could not possibly be responsible, then no prosecutor is going to move forward – and the lower court would throw out the case if they did.

        “Post conviction cases, on the premises described above and often involving newly discovered evidence, begin at the trial court level, then proceed to the Court of Appeals, then to the Supreme Court, state or federal.”
        I’ll have to bow to your personal knowledge here. But I’m thinking that one simply cannot walk into a trial court and demand they look at new evidence. Doesn’t it have to go before an appellate court first, who finds the first trial invalid and remands? I’m not arguing here, I’m just wondering how a new trial can be opened with the old conviction still standing. Perhaps I’m missing something.

        “Never before have I found it necessary to post my cred on an issue…” Again, I’m not sure how I managed to do this. I would simply say that it isn’t necessary for me to hear it, though I appreciate the background.

        It is my understanding that appellate courts, in general, will not examine facts that were not entered into the trial – unless (and it’s an important point) it is shown that the missing facts impact the due process that ensures a fair trial. If, and when, those facts are shown to do so, they do not generally hold a new trial, but vacate and remand. The new trial can then enter the new facts, if the case proceeds. Supreme Courts, however, are able to look at new facts without the constraint of tying them directly to due process. Perhaps my terminology is off, but I honestly don’t think we are saying things that are worlds apart.

        • tidbits

          TH – Thanks for the clarifiction. I’m guessing, but I believe you confuse direct appeal of the criminal trial with an action for post-conviction relief.

          Procedurally, direct appeals of the criminal trial usually must be exhausted before a post conviction proceeding can be brought. Direct appeals are, as you suggest, based solely on legal errors at the trial level in the criminal case, except that, in rare cases, an ineffective assistance of counsel claim can be raised for conduct during trial, e.g. defense attorney shows up drunk or falls asleep during trial.

          Once the direct appeals on the criminal case have been concluded (called exhaustion of remedies), the defendant has the opportunity to file a post-conviction action in the trial court where the prison is located (usually not where the criminal trial took place). The post-conviction proceeding is a new case, with different case number, usually different defense attorney and, in most states, the Attorney General’s office, not the local DA, representing the State. In a post-conviction action, the convicted person is the plaintiff and the State agency (prison or warden) is the defendant. The nature of a post-conviction claim is the allegation that the prisoner is being illegally confined because he/she did not receive a fair trial in the criminal case for one of the reasons enumerated in my prior post.

          During post conviction actions, most good post-conviction attorneys hire an investigator(s) to determine 1. if there is any new evidence that would prove the person’s innocence or 2. if any evidence that existed at the time of the criminal trial was overlooked (ineffective assistance) or 3. if evidence was improperly withheld by the DA or police. Once the time for investigation and discovery have been completed, the post-conviction case proceeds to trial. These are generally court trials, i.e. no jury, because the ultimate issue (whether the defendant received a fair trial in the criminal case) is a legal issue…though the judge may also be called upon to make factual determinations based on the evidence presented at the post-conviction trial.

          The verdict in the post-conviction case can then be appealed to the Court of Appeals and, from there, to the Supreme Court, state or federal. Now comes an odd legal distinction. In cases decided by jury, or where jury trial is an option, appellate courts do not reconsider the evidence, but accept the factual findings of the jury (or judge, if jury is waived but would have been available). However, in cases where jury trial is not an option (divorce cases are a good example), appellate courts will reconsider the evidence and make their own factual determination if they disagree with the trial judge’s findings. Because there is no jury available in post-conviction proceedings, appellate courts are, indeed, free to reconsider the evidence presented at the trial of the post-conviction case (not the original criminal case). This may vary from state to state.

          Sorry to spend so much time on procedure….and I left out many nuances and exceptions to keep it this short.

          Here are some of the problems. Judge’s who hear post-conviction cases tend, understandably, to become jaded. They hear thousands of bogus cases from prisoners trying to job the system for every one case that may have merit. Add to that the fact that DNA testing is very time consuming, clogs up State crime labs (for the State) and private labs sought out by the prisoner, and is expensive (this is usually public money for both DNA experts). Add to both of those that the AG, generally, will argue against DNA testing on these grounds and others at the post-conviction level. In actual practice, many post-conviction judges will not order DNA testing without extremly compelling other evidence of innocence. 99% of the time there is no harm in this as there are far more cases where DNA would prove guilt rather than innocence.

          So, before I pass out from whirling this many brain cells, let’s talk about where the legislature comes into this. State legislatures set the parameters of post-conviction hearings and, more importantly, legislatures control the available funding. When the issue is left to various state legislatures, there may be time contraints imposed (no post conviction more than _____ months after the last direct appeal is a common one) or other procedural roadblocks (example, only one post-conviction proceeding, no matter what evidence of innocence may later be found). Then there are the fiscal restraints that may make DNA testing beyond the means of the court to order. Most importantly, if you are wrongly convicted, your ability to prove your innocence may well depend on which State you are imprisoned in. Pacatrue said that most States have robust laws for DNA access. There may be some similarities at the criminal proceeding, but not always at the post-conviction proceeding, and, even at the criminal proceeding it depends a lot on what you mean by robust. Some states are way better than others.

          But, I dally. My primary objection to the Supreme Court’s decision and some of the posts here is that fair trial is a constitutional issue, not a legislative issue…my opinion. The opportunity to prove that one was wrongly convicted should not be determined by a legislative budget sub-committee that would rather spend money on anything other than criminal defense. Obviously, my view did not persuade the majority of the Supreme Court.

          While perhaps only 1 in 10,000 are wrongly convicted, that 1 should have the full opportunity to gather the evidence necessary to prove his/her innocence. My question to the Court, and to the posters who agree with the Court, would be: at what price (fiscally, socially or constitutionally) do you determine that allowing an innocent person to serve time in prison, while the real criminal walks among us, is justified? My answer is that one innocent person in prison is one too many, and one innocent person being executed is beyond justification.

          • Thanks for the details, tidbits. I was, indeed, thinking of the post-conviction appeals process.

            I think your questions really have no answer. A man’s freedom has no price, and when we convict the wrong person, we commit two miscarriages of justice – first, that the innocent is imprisoned, and second, that the guilty remains free. DNA evidence works best for defense, but the very limited funds available to most defense cases means that they’ll never be able to use it. The problem, of course, is that funds are always limited.

  • tjproudamerican

    sorry to post a fan note, but this is a great post and onderful discussion. I wish many people read this and I am sending the link…..

    THANK YOU.

  • pacatrue

    My impression was that the majority decided that the state legislatures should have the ability to set the rules on when DNA evidence can be used, and they did not want to usurp that authority. This was surely influenced by the fact that 47 or 48 states do have fairly robust legislation that would have given this convict access to DNA evidence. Alaska is a supreme outlier here. I’m not saying this was the right decision, just giving my understanding of the rationale.

  • DLS

    “The fact that a justice can recognize the potential of new technology to render a far more conclusive result and then turn his back on it because of the inconvenience it might cause to the legal system is beyond ‘appalling’ by any measure.”

    That is not the issue. Rather,

    “this is a legislative issue, and legislatures are allowed to be wrong”

    “My impression was that the majority decided that the state legislatures should have the ability to set the rules on when DNA evidence can be used, and they did not want to usurp that authority.”

    … which is refreshing. It’s not up to the judiciary to arrogate legislative powers for itself and substitute “due substance” for “due process.” We’ve suffered too much from the wrong thing instead for decades.

    Obviously no legitimate court can order that DNA be used in current or in already-previously-settled cases merely because many agree it is good and right that this be done.