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Opening Arguments


Those of us who argue strongly and often that the Constitution is about immutable principles rather than evolving standards are obligated to wince (metaphorically) in public when a case comes along that gives the other side (Supreme Court justices should care about people, not just the law!) some ammunition. This is me wincing:

In the court's first examination of how to treat the rapidly evolving field of biological testing, Chief Justice John G. Roberts Jr. wrote for a majority that said it is up to the states and Congress to decide who has a right to testing that might prove innocence long after conviction.

The “challenges DNA technology poses to our criminal justice systems and our traditional notions of finality'' are better left to elected officials than federal judges, Roberts wrote in the 5-to-4 decision.

I understand and appreciate the federalist principles Roberts is talking about, but, seriously, shouldn't the Bill of Rights be in play here? Unfortunately, previous rulings have downplayed what should be the top priority in any appeals process in any case: whether someone is actually guilty or not. "A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man," as Roberts dryly notes, sounds like crap to me. Someone convicted of a crime can't call on the best evidence available, evidence that wasn't available at the time of trial, in an effort to prove his innocence? Only three states -- Massachusetts, Oklahoma and Alaska, where this case originated -- lack laws providing postconviction access to biological evidence. Indiana isn't lagging behind for a change, thank goodness.


Fri, 06/19/2009 - 3:31pm

I don't know. I think the notion that a trial and a verdict or judgment has actually proven anything is a fiction that the legal system is compelled to embrace. The reality is that litigants don't have the resources to present every scrap of available evidence, and, if they did, courts don't have the time to entertain that much evidence.

The Constitution doesn't forbid the government from depriving a man of life, liberty, or property if he's actually innocent or in the right; it just says the government can't deprive him without due process of law. How much process is Constitutionally due? Maybe a DNA test is due when you're facing execution. But, probably you're not entitled to have the government pay for you to use some expert in Guam when you're facing misdemeanor charges -- even if this hypothetical Guam expert might show that you weren't really smoking weed at the time.