Posts Tagged ‘habeas corpus’

Innocence Not Proven

Wednesday, August 25th, 2010

 

A year and eight days ago, the Supreme Court took the unusual step of granting an “original writ,” and handed down a novel decision directing a federal court to revisit the murder conviction of Troy Anthony Davis by allowing Davis to put on evidence of actual innocence.  (See our original post on the decision here.)  Davis was convicted after trial of shooting a police officer to death in 1989.  He always claimed he was there, but didn’t shoot anyone.  Several witnesses said otherwise, and the jury found him guilty.  After some of the witnesses recanted, however, and evidence was discovered that indicated that the prosecution’s star witness was the real shooter, the issue of actual innocence was put into play.  With some serious debate among the Justices, the Supreme Court sent it back specifically for the district court to determine whether there was evidence not available at the trial would “clearly establish” his innocence.

Yesterday, the federal court finished hearing the evidence of actual innocence, and found nothing worth reversing the conviction.  “Mr. Davis vastly overstates the value of his evidence of innocence,” the court found.  “Some of the evidence is not credible and would be disregarded by a reasonable juror. … Other evidence that Mr. Davis brought forward is too general to provide anything more than smoke and mirrors.”  You can read the CNN story here, and the decision itself here (part 1) and here (part 2).

“This court concludes that executing an innocent person would violate the Eighth Amendment (barring cruel and unusual punishment) of the U.S. Constitution,” ruled U.S. District Judge William T. Moore Jr.  “However, Mr. Davis is not innocent.”  Although the state’s case “may not be ironclad, most reasonable jurors would again vote to convict Mr. Davis of officer MacPhail’s murder.”  Repeating a phrase, it went on “ultimately, while Mr. Davis’ new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors,” Moore ruled. “The vast majority of the evidence at trial remains intact, and the new evidence is largely not credible or lacking in probative value.”

We’d be surprised if there wasn’t yet another appeal.  We’ll save you our rant on why this process is precisely why capital punishment doesn’t work.  If you’re interested, you can read it here.

Double Jeopardy Deadlock

Monday, March 29th, 2010

 

The Fifth Amendment says a person can’t be prosecuted twice for the same offense. So after a jury comes back with a verdict, if the government doesn’t like that verdict, then too bad, it doesn’t get a do-over. This is called “Double Jeopardy,” from the language of the Amendment saying you can’t “be subject for the same offense to be twice put in jeopardy of life or limb.”

Sometimes, Double Jeopardy applies even when the jury never reached a verdict. Usually, if the judge declares a mistrial, there’s no jeopardy problem and everyone does the trial over again. But there are exceptions, such as when the mistrial was caused by prosecutorial misconduct. Or when a judge orders a mistrial for no good reason. There’s a presumption that judges shouldn’t go around declaring mistrials, that cases should be allowed to go to verdict. So when a judge calls “mistrial” for no good reason, the defendant isn’t going to be forced to go through the whole thing all over again.

[Aside: We had that happen in one of our cases, when we were a prosecutor. In the middle of a drug trial, we were severely injured in a motorcycle accident (and by “severely,” we mean “it took 6 weeks to stabilize to the point where they could do surgery to put the bones back in”), and as a result we couldn’t finish the trial. Drug cases being all pretty much alike, and prosecutors being pretty much fungible, the DA’s office sent over another lawyer to finish out the case. The judge instead declared a mistrial, over the objections of both sides. The office wound up having to consent to dismissal on Double Jeopardy grounds. Whaddayagonnado.]

Back in 1824, the Supreme Court ruled in U.S. v. Perez that one good reason the judge can declare a mistrial is when the jury is deadlocked. When the jury cannot reach a decision, it’s not like the defendant’s being screwed by an unfair judge or an abusive prosecutor. So a judge is allowed to ask for a do-over with a different jury.

“To be sure,” the Court said, “the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious cases….”

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So that brings us to the case of Renico v. Lett, argued this morning before the Supreme Court (you can read the transcript here).

Reginald Lett was on trial for murder. The case was presented intermittently, five days out of two weeks, and the jury finally got to start deliberations at 3:24 p.m. on a Thursday. They deliberated for 36 minutes, then went home. On Friday (the 13th), they came in, deliberated for a mere four hours, and sent out a note. The note didn’t say they were deadlocked, but merely asked what would happen “if we can’t agree? Mistrial? Retrial? What?”

The judge brought the jury out and asked “is there a disagreement as to the verdict?” The foreperson said yes. The judge badgered the foreperson a bit, insisting on her predicting whether the jury could reach a unanimous verdict, and finally the foreperson said “no.” The judge immediately declared a mistrial.

Now this was highly unusual. Most judges, in our experience, give a supposedly deadlocked jury a few chances to go back and reach a verdict (three seems to be the magic number here in New York City). We’ve had jurors shouting at each other so loud that everyone could hear them plainly out in the courtroom. All that meant to anyone involved, however, was that they actually were deliberating. A zesty exchange of ideas is still an exchange of ideas.

At some point, either the second or third time the jury says they’re deadlocked, the judge will give an Allen charge. Basically, the jurors are told something like “everyone’s been working their asses off on this case for a long time, costing a shitload of money, and you jurors don’t seem to be holding up your end of the deal. If you can’t do your job, everyone’s going to have to do it all over again with some other jurors, who’ll have to deal with the same stuff you are. Now, take all the time you need, and don’t change your mind without good reason, but get back in there and someone change their mind so we can all go home.” (Ed. note: citation required.)

Depending on who your jurors are, this can be good or bad for the defendant. Generally, whoever’s side the holdout was on, loses.

But the judge in Renico v. Lett never did any of that. Hell, the jury never even said it was deadlocked to begin with. All the jurors wanted to know was (more…)

Supreme Court Noir

Tuesday, December 8th, 2009

Roberts Noir

The Chief was at it again.

Everyone had their theories. J.P. said the Chief had lost it, gone soft in the head. Nino thought he was just having fun. Sam didn’t say anything, so he was probably in on it.

None of us thought it made any sense, though. Except me. I had my own ideas. What the Chief was doing made perfect sense, if anything can make sense in this world. He was like me.

No, not like me. I only have contempt for the tedium, the routine drudgery the rule-boys keep feeding us. The Chief wanted to do something about it.

But his methods… Like some Frankenstein, trying to animate the dead… Well, maybe he was more like me than I imagined.

While sipping a cup of last night’s coffee, I decided I liked it. I silently congratulated the guy, and wished he’d keep it up.

-=-=-=-=-

At the beginning of the ’08 term, Chief Justice Roberts sparked a miniature kerfuffle when he opened a decision with a factual recitation in the style of Hammett or Spillane. It wasn’t half bad, and it certainly got the facts across without losing the reader’s interest. But it wasn’t at all what we’re used to reading in Supreme Court opinions. So one heard comments and criticisms in the corridors and over cocktails, for a few days anyway. But people got over it. After all, it was only a dissent to a denial of cert, and who even reads those? It’s probably the one kind of opinion where a justice could get away with a bit of fun. It was just a one-off, let it go.

Except it wasn’t just a one-off. It was just the beginning. Since then Roberts has kept at it, putting a bit of dramatic flair into his opinions. Particularly, it seems, in cases that aren’t all that dramatic to begin with.

Take today’s opinion, for example, in Beard v. Kindler. The issue couldn’t be more boring — whether a discretionary ruling on state procedure is something that can be pursued in a federal habeas claim. The case has nothing to do with the underlying facts of the case, but instead inquires into whether the state courts had regularly followed that procedure, and the general policy arguments for and against allowing habeas.

Yawn. If Dirty Harry or Mike Hammer were here, they’d be shooting or punching someone. They’d deal with the tedious legal processes and technicalities, but on their own terms.

And so did Chief Justice Roberts. He dealt with it on his own terms, in his own way, by opening his decision with a lengthy and dramatic recitation of the underlying events — events that have absolutely nothing to do with the discrete legal issue before the court.

Roberts told the gritty story of Joseph Kindler, which itself seems made for TV or a pulp novel: In 1982, Kindler and two associates robbed a store, only to get caught during the getaway. “In a harbinger of things to come, Kindler escaped.” When one of the associates agreed to testify against him, Kindler and the other one bludgeoned him almost to death with a baseball bat, shocked him repeatedly with a cattle prod, threw him in the trunk, hauled him to the river, tied a cinderblock around his neck, and threw him in the river, where he died of drowning and massive head injuries. He was convicted of murder, the jury recommended execution, but before sentencing Kindler escaped. Using smuggled tools and a lot of help from other inmates, he sawed through the bars of his maximum-security prison, and fled to Canada. He got caught there committing more crimes. Canada refused to extradite him, because he faced execution, and Kindler became a minor celebrity, going on TV and everything. Eventually, however, Canada agreed to extradite him, whereupon he promptly escaped again. With the help of his fellow inmates, he broke through a skylight in a high ceiling, climbed to the roof, then rappelled down a rope made of 13 bedsheets. Kindler made it, but when another tried to follow the sheet ripped, and he fell 50 feet to his death. Kindler was caught again after America’s Most Wanted did a segment on him. Several years later, he was eventually extradited back to the U.S. In the meantime, the state court had long since dismissed his original sentencing motions, as he had escaped before they were decided. The case has been going back and forth on appeal over that dismissal, ever since. The original arrest was in 1982.

Roberts tells it much more entertainingly than this, of course. But almost none of that was necessary or even relevant. It could just as easily have been replaced with “A jury convicted Kindler of capital murder for the brutal slaying of a state witness. The jury recommended a death sentence, and Kindler filed postverdict motions. Before the trial court had considered the motions or the jury’s death recommendation, Kindler escaped. While Kindler remained a fugitive, the trial court dismissed his postverdict motions. Seven years later, Kinder was returned to court, and moved to have his motions reinstated. The trial court found that the original judge had not abused his discretion, denied the reinstatement motion, and imposed the death sentence.”

Frankly, we like it Roberts’ way better.

And we hope he keeps it up, particularly in the more humdrum cases. It does no harm, and it might even keep one or two young associates from nodding off during some tedious night of research down the road.

Ninth Circuit Bungles Math, Can the Supremes Fix It?

Tuesday, September 1st, 2009

Prosecutor's Fallacy

The “Prosecutor’s Fallacy” is one example of why we think Statistics should be a required course in college. Let’s say the police have the DNA of a rapist. Only 1 in 3,000,000 people chosen at random will match that DNA sample. Your DNA matches. At your trial, the DNA expert testifies that you have only a 1 in 3,000,000 chance of being innocent. That is not correct, however. That’s an example of the Prosecutor’s Fallacy.

Yes, there is a very small chance that someone’s DNA would match if they were innocent. But that is not the same as saying there’s a very small chance that someone is innocent if their DNA matches.

This is basic conditional probability. And if you think about it, it’s just common sense. What you’re doing is switching the conditions around, and leaving the result unchanged. You can’t expect to change the conditions and not change the result.

To illustrate with an extreme example, we drew the picture you see above. A black circle indicates a DNA match. All guilty people are going to have a DNA match, obviously. And a tiny fraction of innocent people are going to have a DNA match, as well. But if the number of innocent people is large enough, then the number of innocent people whose DNA matches could actually be larger than the number of guilty people. Someone whose DNA matches is actually more likely to be innocent in that scenario.

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Prosecutors and DNA experts aren’t the only ones who get this wrong. Courts do, too. The Ninth Circuit recently made a hash of it in their decision in McDaniel v. Brown, which will now be one of the first cases to be heard by the Supreme Court at the start of this year’s October term.

In McDaniel v. Brown, Troy Brown was prosecuted for the alleged rape of a little girl. The facts are pretty gruesome, but irrelevant here. What’s relevant is that, at his trial, the DNA expert testified that Brown’s DNA matched the DNA in the semen found on the girl, that there was a 1 in 3,000,000 chance that someone’s DNA would match, and that therefore there was a 1 in 3,000,000 chance that Brown was innocent.

Brown got convicted. He later brought a habeas petition to the District Court. He introduced a professor’s explanation of how the prosecution had screwed up. The District Court expanded the record to include the professor’s explanation, and found that the DNA expert had engaged in the Prosecutor’s Fallacy. In part because of that (there was also a chance it could have been his brother’s DNA), the District Court found there wasn’t sufficient evidence to convict.

The government appealed to the Ninth Circuit.

Now, the Ninth is known for being touchy-feely. It’s not known for its analytical prowess. Posner, they ain’t. But they bravely tackled this statistical conundrum. And they screwed up.

In trying to deal with the prosecution’s error, the Ninth swung too far in the other direction, finding that the DNA evidence at Brown’s trial couldn’t establish guilt, period. No jury could have found Brown guilty.

So the government took it to the Supreme Court, making two arguments. One is procedural — that the habeas court shouldn’t have been able to consider the professor’s explanations, but only the trial record, in determining the sufficiency of the evidence before the jury. The other argument is that even though the chances of Brown being innocent weren’t 1 in 3,000,000 they were still pretty damn low, and the DNA evidence is still plenty sufficient.

Brown’s lawyers, to their credit, don’t seem to be arguing that the Ninth Circuit did it right. Instead of characterizing the decision below as ruling on the sufficiency of the evidence, Brown’s attorneys argue that it was really a Due Process ruling. The testimony wasn’t so much insufficient as it was incorrect. It was unreliable. This is bolstered by the fact that the Ninth Circuit ordered a new trial (which Double Jeopardy would preclude after a finding of insufficient evidence, but which is standard after a Due Process finding of unreliable evidence.)

That’s not the way the Ninth characterized its ruling, however, so Brown wisely suggested that the Supreme Court might simply kick the case back for the Circuit to explain its ruling better.

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Oral arguments are scheduled for October 13. We haven’t made any predictions yet about the upcoming term, so we’ll start here.

We think the state will convince Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, Ginsberg and Alito of the following:

(1) The Ninth Circuit improperly remanded for a new trial, which is improper after a finding of insufficiency; and

(2) At any rate, the Circuit improperly found the evidence to be insufficient, when there was plenty of evidence of guilt.

We think that Justices Stevens and Breyer (we have no clue about Sotomayor) will dissent, arguing that the jury was totally thrown by the DNA expert’s mischaracterization, that this was a Due Process violation at the very least, and that the DNA evidence probably should have been thrown out entirely, so the Ninth Circuit should be reversed and the District Court’s original ruling should be reinstated.

What are the odds that we’re really right? Who wants to do the math?

Wow! Supreme Court Puts Actual Innocence in Play

Monday, August 17th, 2009

 

The Supreme Court did something today it hasn’t done for generations — it took an “original writ” of habeas corpus (a request made directly to the Supreme Court itself, instead of first filing it in a lower court), and then it ordered a federal District Court to hold a hearing on whether the convict is actually innocent.

The really dramatic thing about this is not the acceptance of an original habeas petition, but the fact that the Court’s order seems to imply that a convict may not be executed if he can prove actual innocence. As demonstrated most recently by the Court’s Osborne decison, it has persisted in absolutely refusing to decide that issue. They have gone out of their way, in fact, to repeatedly leave the question “unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable,” as Scalia said this morning.

Troy Anthony Davis was convicted 18 years ago, in Georgia state court, for the shooting death of an off-duty police officer, Mark Allen McPhail. At trial, Davis had insisted that he was innocent, though he had been present at the time. The jury didn’t believe him, and there were no constitutional problems with his trial.

Since then, seven of the witnesses against him have recanted their testimony, and evidence has come forward that the prosecution’s main witness was the actual killer. Davis has invoked the Supreme Court’s original habeas jurisdiction, relying on Court Rule 20.4(a) permitting such discretionary powers under “exceptional circumstances.”

A majority of the Court (new justice Sotomayor did not take part) agreed with Davis, found the necessary exceptional circumstances, and transferred the petition to a District Court. The District Court has been instructed to hold a hearing to determine whether evidence that could not have been obtained at the time of trial clearly establishes Davis’ actual innocence.

This appears to have set off quite a debate among the justices, in the middle of their summer recess.

Justices Scalia and Thomas are adamant that the Court did the wrong thing here. Most importantly, they point out that the District Court can’t grant Davis the relief he seeks, even if it wants to. So this transfer “is a confusing exercise that can serve no purpose except to delay the State’s execution of its lawful criminal judgment.”

District Courts only have power to release convicts pursuant to the Antiterrorism and Effective Death Penalty Act of 1996. That statute prohibits habeas corpus for claims that were adjudicated on the merits in state court, unless that decision violates “clearly established Federal law, as determined by the Supreme Court of the United States.”

Because the Supreme Court has gone out of its way not to determine the issue of whether actual innocence is a valid basis for habeas release, Scalia and Thomas hold that it cannot be “clearly established Federal law, as determined by the Supreme Court of the United States.”

Justice Stevens, writing for the majority (joined by Justices Ginsburg and Breyer), simply sidestepped the issue. The AEDPA might not apply in an original habeas petition, he mused. And even if it does apply, it might be unconstitutional for it to prevent relief for someone who has established his innocence. Or, in the alternative, one might find that clearly established Court precedent already permits such relief, as it “would be an atrocious violation of our Constitution and the principles upon which it is based” to execute an innocent person.

Stevens’ closing paragraph, however, makes it clear that he understands that the Court has never dealt with the issue before, but he feels that it is time to create some new law. “Imagine a petitioner in Davis’s situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man.” Applying the law as it exists, the way Scalia and Thomas would have the Court do, “would allow such a petitioner to be put to death nonetheless.”

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In the 2008 term, Stevens seemed to be going out of his way to create a legacy. Writing as if he was about to announce his own retirement, his opinions seem to have sought for better principles rather than the application of existing ones. His jurisprudence is not about objective law, but subjective justice.

So this opinion fits right in with his others. To hell with the Court’s insistence on staying out of the “actual innocence” defense. here was a perfect opportunity to force the Court to deal with it once and for all. By sending it to the District Court expressly for the purpose of establishing that defense, he has ensured that the case will re-appear before the Supreme Court to decide it.

If Davis wins, the State of Georgia will surely appeal, claiming that the District Court lacked the power to decide the issue. If he loses, he’s sure to appeal, along with amici like the NAACP, claiming that the District Court abused its power in rejecting his claim.

Either way, the Supreme Court would eventually be faced with deciding the issue of whether actual innocence is a valid basis for a habeas petition.

It looks to us like Stevens is gaming the system for activist purposes. For the record, we firmly believe that actual innocence should trump procedure and all other legalistic concerns. But it remains to be seen whether he’ll succeed in getting the law to shape itself accordingly.

Defense to Win All Remaining Supreme Court Cases

Wednesday, June 17th, 2009

supreme-court-fountain.png

With only two more decision dates remaining in this Supreme Court term, we’ve got our eyes on four criminal cases yet to be decided. Either next Monday (June 22) or the following Monday (June 29), we should expect to hear from the Supremes.

We’re going to make a prediction right now that all four cases will be decided in favor of the defense. Furthermore, we predict large majorities or unanimous decisions in each case. (Go ahead and laugh, we’ll wait for you.)

The four cases are:

Safford USD v. Redding, No. 08-479. We talked about this one before (see here). A public school had an absurd zero-tolerance policy (surprise, surprise), this time prohibiting prescription Advil. A girl got caught with some. She blamed someone else (surprise, surprise). School authorities confronted the other girl, Redding, who denied being involved. They searched her backpack, and found nothing. They searched her clothes, and found nothing.

Now at this point, a reasonable person might have figured out that the girl who was caught with the actual pills was trying to pull a fast one here. But these were not reasonable people — they were public school officials. So they had Redding — a 13-year-old girl — expose her breasts and vagina. They found no pills. Then they shook out her underwear, and found nothing. Then both the school nurse and another school official physically searched the girl’s body. They found nothing.

Now at this point, a reasonable person would have surely figured out that there was nothing to see here. But these bright bulbs instead stuck the girl in the principal’s office alone for a few hours, didn’t contact her folks, and didn’t bother searching anyone else.

The girl sued, claiming (surprise, surprise) that her Fourth Amendment rights had been violated.

The Supreme Court has now been asked to decide whether public school officials are permitted by the Fourth Amendment to perform a warrantless strip search of a student whom they merely suspect of possessing forbidden contraband.

The school wants the Court to say yes, schools can perform strip searches any time they have reason to suspect that a student has forbidden contraband. They want a rule that doesn’t let judges second-guess the judgment of school officials.

Our prediction is that the Court isn’t going to grant such a bright-line rule. For the reasons we set out in our previous post, we predict that the Court will require a case-by-case analysis. It will be fact-specific, whether the officials have evidence that is sufficiently credible to justify an articulable suspicion that contraband will be found during a strip search. And it will require a balancing, to ensure that the invasiveness of the search is proportionate to the danger of the contraband sought. A strip-search to find an explosive is one thing; but examining a young girl’s private parts to find Advil is another thing entirely.

* * * * *

The next case we’re looking for is Yeager v. United States, No. 08-67.

The issue in Yeager is collateral estoppel after a hung jury. Specifically, a jury acquitted on some counts, and hung on other counts, all sharing a common element. Perhaps the only explanation for the acquittals is that the jury decided that common element in the defendant’s favor. So is the government prevented from re-trying the hung counts, by collateral estoppel?

Yeager was an executive with Enron’s telecom unit, charged with 176 white-collar crimes. After a three-month-long trial, the jury acquitted him on the counts of conspiracy, securities fraud and wire fraud. But the jury hung on the counts of insider trading and money laundering.

The Fifth Circuit said that one explanation for the acquittals is that the jury found that Yeager had no inside information. That was also an element of the insider trading count. But the Circuit said it was impossible to determine “with any certainty what the jury” actually must have decided. So that meant there could be no collateral estoppel precluding a new trial.

At oral argument, Justice Souter honed in on the real issue here, which is a conflict between two underlying principles of our current jurisprudence. On the one hand, once a jury has determined a fact, the government doesn’t get a second chance to prove it. On the other hand, the government is permitted a full opportunity to convict, so it is allowed to re-try counts where a jury hung. Chief Justice Roberts and Justices Kennedy and Breyer explored the conflicting principles in greater depth. Although the government’s attorney was more deft at handling the philosophical argument, and Yeager’s attorney seemed to be stuck in a surface argument, it seemed by the end that the Court was siding with Yeager.

What seems to have killed the government’s position here was its assertion that acquittals should not affect retrials if they are not “rational” — meaning they are inconsistent with the jury’s remaining outcomes — and that a hung count is an outcome that can be used to determine whether the actual verdicts were rational. That not only conflicts with precedent that permits inconsistent verdicts, but also defies common sense by treating the absence of a decision as an affirmative determination.

This one’s a tossup, but we’re going to predict a ruling in favor of Yeager here.

* * * * *

The third case to watch for is District Attorney’s Office v. Osborne, No. 08-6.

Osborne was convicted 14 years ago for kidnapping and sexual assault. The victim was brutally assaulted and raped in a remote area in Alaska. Osborne was alleged to have used a blue condom. A blue condom was found at the scene, containing semen. Osborne now wants to get discovery of the semen, and have DNA testing done at his own expense, in the hopes that it will demonstrate his innocence. The State of Alaska refused.

Osborne brought a 42 U.S.C. §1983 civil rights suit, arguing that Alaska’s refusal violated his Due Process rights. The district court dismissed the suit, saying he should have brought a Habeas claim instead.

The Ninth Circuit issued two decisions. The first was that a §1983 suit is fine here, because the outcome would not necessarily undermine the state-court conviction. The DNA evidence could potentially prove his guilt, or be inconclusive. It would only require Habeas if the evidence would have to demonstrate innocence. And he could still bring a Habeas later if the §1983 action fails.

In its second decision, the Ninth Circuit forced the Supreme Court’s hand. The Supremes have long taken pains to avoid deciding whether a convict can overturn his conviction based only on a claim of innocence, rather than on pointing out defects in the way the trial was conducted. But the Ninth assumed that this is permissible.

Then, based on that assumption, the Ninth said that in circumstances like that — in fact, only in circumstances like that — where a convict could later use the evidence in a freestanding innocence claim, then Brady gives a post-conviction right to access potentially favorable evidence.

The Supreme Court is now deciding both issues: whether the §1983 suit is appropriate for accessing DNA evidence post-conviction, and whether Due Process requires such access if it could establish innocence.

At oral argument, Justice Souter barely let the Alaska A.G. get a word out before launching a lengthy debate over whether Osborne merely sought evidence that might or might not allow him to establish a claim later, or whether he sought evidence that he affirmatively believes will be the basis of a claim of innocence. By the end, both Scalia and Ginsburg had gotten involved, and the Chief Justice was wondering whether the State even had the evidence any more. Breyer got everyone back on track, pointing out that §1983 was appropriate when you didn’t know what the evidence was yet, and Habeas is appropriate when you do know. And here, nobody knows what the DNA evidence is, yet. So how come the State doesn’t have a constitutional obligation to give him the DNA?

The AG gave a terrible response, saying that Osborne simply followed the wrong procedure. Half the bench jumped in to interrupt him, dumbfounded at the assertion, given that Alaska doesn’t have a statutory procedure in the first place. The one statute out there (as Scalia pointed out) first requires an assertion that the evidence establishes innocence, which is the one thing nobody can say yet, because it hasn’t been tested yet. Souter and Scalia tag-teamed the AG on that mercilessly. At one point, Scalia had the audience laughing at the AG. For the rest of the oral argument, the Justices would refer to the fact that they “must have missed” this procedure being mentioned in any of the briefs.

By the end of the AG’s time, nobody had even gotten to the juicy issues yet. Breyer tried to give the AG a chance to talk about it, but the AG just went back to his procedural claim that had used up his time already. This only frustrated the Justices.

The U.S., as amicus to Alaska, started off better, getting to the heart of the issue — the issue the Supreme Court has so long avoided — arguing that prisoners do not have the right to challenge their conviction based on a freestanding claim of actual innocence. But Souter suggested that the right may be found, “not in procedural, but in substantive Due Process,” and asked a hypothetical about letting counsel speak to another prisoner who claims to have exonerating evidence. The Deputy S.G. floundered, and got laughed at as well. They never even got to the constitutional issue (as Souter repeatedly pointed out), and got mired in whether the government even has an interest here in the first place. And then time was up.

Osborne’s lawyer did much better. He deflected the Court’s concerns that at trial the defense had chosen not to test the DNA, and thus must have believed it would show guilt, by pointing out that both sides chose not to test it, because the tests available would have destroyed all of the evidence, precluding later testing.

The Justices across the board expressed concern that they were being asked to create a new constitutional right here. Shouldn’t a prisoner have to make a claim, under penalty of perjury, that he is actually innocent first? Shouldn’t there be a requirement of due diligence, so that claims aren’t made years and years after they could have been brought? Osborne’s attorney admitted that those are fine ideas, and wouldn’t be an obstacle here.

Then Scalia tipped his hand a little. Osborne’s lawyer observed that this is the first case where a prosecutor conceded that DNA would be “absolutely slam-dunk dispositive of innocence,” but doesn’t let the prisoner access it. Scalia thought out loud, “you know, it is very strange. Why did they do that, I wonder?” “Well, it’s very…” Scalia interrupted, “there was a lot of other evidence in the case, wasn’t there?” “Well, that’s…” Scalia cut in, “I don’t know what they thought they were doing.”

Scalia, for one, is not likely to side with the DA’s office here.

Souter came back to his conclusion that this is a substantive Due Process issue, which would require that the prisoner first claim that he is actually innocent. This conflicted with the sworn testimony before the Parole Board admitting guilt. But Breyer pointed out that prisoners often wisely admit guilt before such Boards, because they’re not getting out otherwise. (As defense lawyers like to say, forget guilt or innocence, “out is out.”) So relying on Parole Board admissions would be an arbitrary basis for withholding DNA evidence. So “suppose we said that the rule is non-arbitrary, with illustrations. Send it back to the states. And of course, when they apply their own statutes, by and large they’re not being arbitrary.” Osborne’s counsel agreed, “I think that’s a very sound approach to this.” Breyer responded, “well, it does help you win.”

I don’t think Breyer or Souter are siding with Alaska here, either.

The Chief Justice wondered if the right would be depend on the accuracy of the testing available. No, said Osborne’s lawyer, it has nothing to do with it — the right would just prohibit the state from arbitrarily preventing access to evidence. So long as there’s a reasonable probability that the test will demonstrate evidence, then that should be enough.

On rebuttal, the AAG got maybe three words in edgewise.

So just going from the oral argument, we’re going to predict a loss for Alaska.

Now whether that means a whole new constitutional right or not, well we’re not so sure. This only affects a handful of defendants whose convictions came before the Federal Innocence Protection Act in the mid-1990s.

The trick, though, will be whether the Court can continue to avoid the elephant in the room, the issue of whether one can assert a freestanding claim of innocence. The Ninth Circuit made it a prerequisite, and both the liberal and conservative Justices seemed to put a lot of weight on whether the prisoner first asserted innocence.

We predict that the Court is going to go all the way here. And as long as we’re going out on a limb, we’ll also predict a unanimous decision.

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The final criminal case yet to be decided is also the oldest: Melendez-Diaz v. Massachusetts, No. 07-591.

The issue is straightforward: Is a lab report, by itself, a form of testimony for Confrontation Clause purposes, per Crawford v. Washington, 541 U.S. 36 (2004)?

Crawford says you can’t introduce earlier statements of a government witness, if they hadn’t been subject to cross-examination.

Well, a police lab report wasn’t subject to cross-examination when it was created. But they are often admitted into evidence without live testimony from the chemist or forensic expert who made the report — they’re self-authenticating. If lab reports are testimonial, then Crawford would preclude this practice. If they are not testimonial, but merely a record, then they could continue to be admitted without live testimony.

The Massachusetts Supreme Judicial Court looked at this conundrum a couple times, and decided that drug analysis reports were simply records of “primary fact, with no judgment or discretion,” by the chemist who prepared them. So they weren’t testimonial, and there was no Confrontation Clause problem.

Melendez-Diaz was the defendant in the second such case, which affirmed the first one.

It’s a sure bet that Scalia is going to side with the defendant here. He has long been a champion of the Confrontation Clause, and his contributions at oral argument were true to form.

The Massachusetts AG was frankly an embarrassment, making inaccurate assertions (and being corrected by the Court), resting heavily on the lame argument that nobody’s made this particular claim before, and claiming that requiring chemists to testify would be an “undue burden,” even though it’s no such burden to California or New York or any other state where it’s routinely done at trial. Kennedy even coached the AG with arguments that she ought to have been making, and scolded her when she still didn’t make them.

Justices Kennedy, Scalia and Stevens had little patience for the amicus Assistant S.G., whose argument was that machine-generated reports aren’t testimonial. There’s a difference between an automated record and a computerized document created for the purpose of proving an element of a crime at trial. And they’re different from computerized documents reflecting the observations and conclusions of a human being.

Based on how the oral argument went, we’re going to predict yet another win for the defendant.