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.

First Bush, Now Obama: Department of Justice Opposes Inmate's Effort to Test DNA Evidence Used to Convict Him

Some commentators are criticizing the Obama administration's position in the case: District Attorney's Office for the Third Judicial District v. Osborne. The case involves an Alaska inmate's effort to obtain access to DNA evidence used to convict him of rape in 1994. Prevailing technology at the time could not establish his guilt or innocence with certainty; today, it would. The Office of the Solicitor General has adhered to Bush's position that the inmate does not have a constitutional right to re-test the DNA evidence, even though doing so could establish his innocence and despite the fact that his attorney will pay for the new scientific analysis of the evidence.

The Issues
Alaska is one of only six states where inmates do not have a post-conviction right to DNA evidence used to convict them. Osborne argues that he has a constitutional right to the evidence. The Ninth Circuit Court of Appeals agrees with him. The Supreme Court recently held oral arguments in the case.

The Supreme Court often looks to state law to determine whether "the people" have spoken on the existence of a constitutional right (this diminishes charges of "judicial activism"). Accordingly, the Court could view Alaska as an "outlier" and hold that due process requires that the state allow Osborne to test the DNA evidence. Post-conviction access to DNA evidence is particularly important in older convictions in which DNA analysts utilized primitive technology.

It is unclear what Alaska gains from its refusal to turn over the evidence. If the DNA analysis determines that Osborne is a rapist, the case ends. If not, then justice requires his release from prison. Osborne has secured pro bono legal representation, and his lawyers have offered to pay for the DNA testing.

Some prosecutors, however, have been defiant even when DNA establishes an inmate's innocence (or at least demonstrates that the individual is not guilty). In 2002, a federal court in Pennsylvania ruled -- in a strikingly similar case -- that the inmate, who was convicted of raping two women, had a post-conviction right to re-test the DNA evidence. The DNA screening proved that the same person raped the two women -- but that the inmate was not the rapist. The prosecutor still refused to accept the results.

Another series of test showed that the inmate was not the rapist, but the prosecutor again refused to believe that he was innocent. The prosecutor nevertheless asked the judge to release the inmate because he did not have sufficient evidence to prove his guilt.

Obama and DNA Rights
As a state senator, Obama sponsored and lobbied for legislation that gave all inmates a post-conviction right to DNA evidence -- the same right that Osborne asserts in this case. The government's position does not prevent states from passing laws to establish this right in the future; instead, it seeks to rebut the inmate's argument that due process establishes this right.

The Bush administration was not required to take a position in this case. Although the Bush administration decided to submit a brief in the case, the Obama administration could have refused to defend it, withdrawn it, or even switched position. And while the Solicitor General has a culture of maintaining the same positions as the previous administration in pending cases, critics argue that the issues this case raises are so substantial that the Obama administration could have legitimately abandoned Bush's argument.

Final Words
I believe that inmates should have the right to test DNA evidence used to convict them. They certainly should have the right to test the evidence prior to a conviction. The issue of cost is not relevant in this particular case, because Osborne's lawyers will pay for the DNA analysis. Because I strongly believe in due process and because science can answer the question of guilt or innocence, I believe that the Court should rule against Alaska and reject the Bush-Obama arguments.

William Sessions, a former federal judge and Director of the FBI during the Reagan administration, has a very passionate take on the case that appears on Slate.Com. I close this essay with a slice of Sessions' argument:

It's a generally laudatory goal for a new president to continue the DoJ polices of the previous one when he takes office. But a change in position may be warranted in some cases. Osborne is one of them. The Justice Department's decision is particularly perplexing because when President Obama was an Illinois state senator, he responded to that state's wrongful conviction problem by leading a bipartisan effort to help prevent convictions of the innocent, including laws allowing access to DNA evidence.

Evidence of innocence does—and must—matter to all of us, whenever it is presented. I have no idea whether Osborne is guilty. If the DNA shows that he is, so be it. But what if it shows he is not? Wouldn't victims of crime want to know if the wrong person is imprisoned, and the real perpetrator is still on the streets, free to commit more crimes? Wouldn't all of us want to know this?

Former Attorney General John Ashcroft has called DNA the "truth machine of law enforcement." Why should our criminal justice system be afraid of that truth machine? . . . .

Note: The SCOTUS Blog contains excellent coverage of this issue. Law.Com also has helpful analysis.

Palin: A Roveian Strategy?

Most commentators believe that by selecting Alaska governor Sarah Palin as his running mate, Senator John McCain has made either the most brilliant or reckless decision of his political career. Palin certainly carries a lot of obvious risks. She is a first-term, young governor of a thinly populated, non-mainland state. Prior to that she was a mayor of Wasilla, an obscure and tiny town in that same state. Her academic credentials pale in comparison to those of the other candidates and of those who have moved on, like Clinton and Romney. Although web chatter has long suggested that Palin could make the ticket, most reputable political commentators rejected such musings as pure folly.

Well, folly has become reality. McCain's choice has shocked the media and blogsphere, and people are now combing through Palin's limited background to discover who she is. Currently, we have learned that she is a mother of five children, the youngest of which is a few months old and has Down Syndrome. She and her husband, who dropped out of college, eloped because they could not afford a wedding. She was runner-up for Miss Alaska, after winning the Miss Wasilla competition that year. She is pro-life and pro-gun, favors drilling in the Arctic National Wildlife Reserve (unlike McCain), opposes having the polar bear on the endangered species list, and is under "investigation" for allegedly pressuring a subordinate to fire a state trooper involved in a nasty divorce and custody battle with her sister. She believes that public schools should teach both evolution and creationism, and she is unsure whether global warming is "manmade." Palin, like McCain, also has a reputation for rooting out corruption, even if it means challenging her own party. In Alaska, she is known as the "Barracuda" for her toughness, a name she first earned playing high school basketball. Like Obama, Biden, and McCain, Palin, a self-proclaimed "hockey mom," opposes same-sex marriage, but she vetoed legislation that would have prohibited the state from providing benefits to same-sex partners of state employees. And the information on Palin continues to emerge.

Democrats have generally ridiculed Palin's candidacy. The Obama campaign, for example, said that McCain wishes to put a "former mayor of a town of 9,000 with zero foreign policy experience a heartbeat away from the presidency." The campaign later backpedaled from that statement and issued a new one praising her candidacy as indicating that "old barriers" are falling in politics. Representative Jim Clyburn likened Palin to Dan Quayle, Bush, Sr.'s intellectually challenged Vice President, who was constantly ridiculed during the 1988 campaign and during his term in office. After I learned of the announcement, I immediately emailed friends proclaiming that McCain had just picked "Danielle Quayle" as a running mate. Finally, Newsweek writer Jonathon Alter, who has been openly supportive of Obama, predicts that Palin's candidacy will "belly-flop."

Despite my own serious doubts about Palin's qualifications, I believe that the Democrats will harm their own chances in November if they continue to mock Palin and depict her as a lightweight. According to popular accounts, McCain selected Palin in order to siphon off disgruntled Clinton supporters from the Democratic party. Although Palin's praise of Clinton in her acceptance speech supports this assertion, McCain probably does not believe Palin will attract many of Clinton's supporters. For the most part, pro-choice, pro-glbt, antiwar, public health care-supporting women will not vote for McCain, regardless of their bitterness over Clinton's failure. On the other hand, Palin help McCain lure politically independent white women and conservative Democrats, who are either pro-life or who do not centralize abortion as a political concern. If these women are angry about Clinton,would like to see a woman hold high office, or cannot bring themselves to vote for a black man, then Palin might have even more appeal. A Gallup analysis indicates that while McCain has a large lead over Obama among independent white men, the two are basically tied among independent white women. In a tight contest, a shift of a few points among this latter group could make the difference, particularly in battleground states like Ohio, Pennsylvania, Florida, and Missouri, where Obama failed to attract many white voters outside of progressive urban areas.

Furthermore, Palin apparently excites Republican religious conservatives, who have always had a strained relationship with McCain. Although Palin's veto of antigay legislation suggests that she has moderate political leanings, her political record is indisputably conservative. Accordingly, Palin could help shore up support for McCain among evangelicals and other socially conservative voting blocs. This same group helped put Bush over Kerry in 2004 and could potentially work again this year. Early signs indicate that the Republican party's conservative base has responded warmly to Palin, citing her strong opposition to abortion. Furthermore, McCain has reported that he raised a whopping $7 million the day he announced Palin's candidacy. An emboldened conservative base could prove destructive to Obama in November.

Democrats should also retire their suicidal belief that the public wants a president (or vice president) with great intellectual depth. The last two elections refute that notion. And despite the parallels between Palin and Quayle, Democrats must remember that Bush and Quayle won -- and they might have won again if Ross Perot had not run. If Palin comes across in the debates and on the stump as competent and charming, then she may pass the bar set by the United States electorate. To the extent that Democrats construct Palin as a lightweight ex-beauty queen, an "adequate" performance could actually make her look impressive.

Finally, Democrats must avoid portraying Palin in sexist terms, or they risk angering and driving away women voters. Lingering bad feelings over Clinton make this particularly important. Some male television commentators and bloggers have already asked whether Palin, a mother of five, will have enough time to raise her family and serve as Vice President. I do not recall ever hearing a male candidate asked a question like this. Others have queried whether Biden will have to treat Palin softly in their debate in order to prevent being perceived as too tough on a young woman ("girl"?). Would the same question apply if McCain had selected a young man? Should McCain go soft with Obama because who is only two years older than Palin? Democrats must even address Palin's experience issue - which is a real concern - with sensitivity, because they rejected Clinton's critique of Obama's thin resume, and because Democrat John Edwards had only two years of Senate experience (his only political position) when he ran for Vice President with John Kerry in 2004. If Democrats can accept the limited political experience of Edwards and Obama, then why not Palin? On the experience question, McCain has clearly ceded this as a point of attack. Palin neutralizes Obama's weakness in this area, and McCain's latest ads have asserted that Obama lacks substance, not experience.

Perhaps McCain's attack on Obama's experience was really a Roveian ruse, designed to deter Obama from selecting a young, change-oriented Democrat as a running mate. Rove himself argued in June that Governor Kaine of Virginia was too inexperienced to serve as vice president, even though he has about the same political experience as Palin, whose candidacy Rove has now praised. By pressuring Obama to go for a more senior and "safe" Democrat, Rove and the Republicans could ensure that McCain would grab attention by picking a younger, charismatic, reform-minded female upstart. Furthermore, by picking Biden, Obama has neutralized a key component of his campaign: that voting for "Bush's war" demonstrates a lack of "judgment." Biden, like Clinton and McCain, voted for the war. Now, the campaigns will likely focus on who can end the war. The fact that one of Palin's sons will soon go to Iraq as a soldier will help blunt Obama's arguments that McCain will keep the war going for "100 years." It's easy to imagine Palin in a debate saying something like "As a mother of a son in Iraq, I want that war to end as soon as possible and will do whatever it takes to make that happen."

The Democrats had a surprisingly unified convention, and according to most pollsters, Obama enjoyed a nice post-convention bounce. McCain has grabbed the attention with his shocking selection, and we will soon figure out whether his gamble will work for him. As the public continues to scrutinize and debate Palin, the Democrats must decide to take her candidacy seriously, for she brings more to the Republican ticket than a vagina. McCain picked Palin to accomplish a complex set of political goals, including mobilizing the conservative wing of the Republican party, attracting moderate and conservative women, helping to put the maverick status back in McCain's brand, energizing his dull campaign, and re-awakening the beleaguered Republican party. Palin now faces the difficult, if not impossible, task of convincing voters in a very short amount of time that they should place her within a heartbeat of the presidency. She will have very little room for error. And while Palin's candidacy looks, at first glance, like a nice gift for the Democrats, Obama and company must take Palin seriously, or they risk squandering their opportunity to win. Whatever happens, the next two months will likely present many other surprises and moments of excitement.

Update: A new CNN poll shows that the race is a dead heat again. Presumably, Palin has helped neutralize Obama's bounce. http://politicalticker.blogs.cnn.com/2008/08/31/cnn-poll-obama-49-mccain-48/