Another Alaska Criminal Case, Different Posture by DoJ

Let me first state the obvious: As a liberal constitutional law professor, I believe that the Department of Justice has done the "right thing" by seeking to overturn former Senator Ted Stevens' conviction for corruption charges. According to a statement by DoJ, prosecutors failed to give defense lawyers information they could have been used to impeach the testimony of a leading prosecution witness. I take the Due Process Clause seriously, regardless of the ideology, political affiliation or prior conduct of the persons whom it benefits.

As my colleague Professor Angela J. Davis (the criminal law scholar, not the 60s radical) demonstrates in Arbitrary Justice, her recent book published by Oxford University Press, prosecutors often fail to comply with due process norms. The situation is worse when defendants are poor or persons of color and when they lack the resources to mount a vigorous defense. Procedural violations potentially cause the most serious harms in the criminal justice system, where physical liberty and reputations are at stake.

Differing Approach by DoJ?
Although the Stevens prosecution took place during the Bush administration, Attorney General Eric Holder has decided to change direction and protect Stevens' due process rights. In another case, however, DoJ declined to change course, and instead adhered to the wrongheaded position of the Bush administration.

The other case is District Attorney's Office for the Third Judicial District v. Osborne. I analyzed Osborne earlier this year. The case involves a challenge to Alaska's refusal to give criminal defendants post-conviction access to DNA evidence. The inmate, who was convicted of rape, has secured pro bono legal counsel, and his attorneys have offered to pay for the DNA analysis. Alaska is one of six states where inmates do not have a post-conviction right to analyze DNA evidence, even if the analysis could point to their innocence. At the time of his criminal trial, prevailing technology did not allow the prosecution to link DNA samples to Osborne definitively. Today, however, the District Attorney concedes that an analysis would establish whether Osborne was indeed the source of the evidence.

During the Bush administration, DoJ filed an amicus brief in support of the State of Alaska. According to DoJ, the Constitution does not confer upon inmates a post-conviction right to analyze DNA evidence used to convict them. The government argued that if the Supreme Court were to recognize such a right, it would interfere with the states' ability to develop policy on the subject. This position, however, ignores the fact that Alaska is an outlier on the subject (only five other states deny the right the inmate seeks). And while states often complain that the pesky notion of due process interferes with their ability to govern, DoJ should not legitimize such outrageous claims.

The Obama administration, however, chose to defend Bush's position in the case during oral arguments before the Supreme Court earlier this year. Several liberal commentators justified the Obama administration's decision by explaining that incoming Solicitors General often "respect" the opinions of the previous administration in pending cases. But due process rights are so important that DoJ could have easily justified a refusal to defend Bush's position.

Holder's decision to seek dismissal of Stevens' conviction will remedy misconduct that took place within DoJ (even though it occurred prior to his leadership of the agency). And while DoJ, by contrast, did not prosecute Osborne, the agency lost a valuable opportunity to advocate the strengthening of due process rights because it refused to the abandon the "failed policies of the past." Due process rights are equally important for popular U.S. Senators and for indigent inmates seeking to prove their innocence.