recognized by McKithen v. Brown, a decision this Monday from Judge John Gleeson of the federal trial court for the Eastern District of New York. It's a long opinion, but here's the bottom line:
The Petition Clause ... secures a right of meaningful access to whatever avenues remain [after normal appeals have been exhausted, avenues that include a clemency petition -EV], and the Due Process Clause confers a procedural right of access to evidence for DNA testing, if the testing can be accomplished at little cost and exculpatory results would undermine confidence in the outcome of the trial.
Seems like an important result, if it's ultimately upheld on appeal. The national media and the blogosophere -- including legal blogs -- seemingly haven't picked it up yet, though my searches found a short article on the subject in today's Daily News (New York).
If the Eighth Amendment secures us from Cruel and Unusual Punishment, and since any prison sentence for an innocent person is grossly disproportionate, then it seems like the Eighth Amendment might be a much better source from which to squeeze the alleged constitutional right. Failing that, any accused person can obviously petition the state legislature and governor.
When Congress sent the Fifth Amendment's Due Process Clause to the states for ratification, it also sent various other SEPARATE procedural amendments (e.g. the Fourth and Sixth), thus inviting the states to ratify the Fifth but reject either or both of the other two. Congress was not saying to the states: please feel free to reject the Fourth and/or Sixth, because they're part of the Fifth anyway. If Congress had wanted to say that the Fifth incorporates the Fourth and Sixth, then they all would have been bundled into a single amendment.
Due process means proceedings that are owed according to the law of the land, not according to natural law, or according to God's will, or according to the personal opinion of five ultra-wise lawyers who wear robes.
IMHO!
Giving people breaks to give them another chance just doesn't work if people are under the impression they're entitled to it. No punishment can ever be remitted if people are under the impression they are getting what they deserve. The whole concept of remmitting is that it sometimes benefits society to attempt to generate gratitude which will hopefully contribute to preserving the peace. Gratitude is only possible if people understand they're getting more than they deserve.
Without gratitude there can be no clemency. If people want just they easily can get it. Just let them serve out their terms. That's justice. No need for the Executive to bother getting involved. Indeed, to suggest that a clemency petition would be just is to suggest the existing sentence isn't just. If that's the case, let the judge fix it. It's not the executive's business. The executive's business is to ameliorate just sentences when special circumstances or moods suggest an inclination to mercy.
I think a Governor should pardon everyone who has been unable to obtain reasonable judicial or legislative help in getting DNA evidence.
(1) Gleeson was reversed by the SCOTUS on the NY Judges case last year.
(2) Gleeson is adorable. He has little curly hair, a button nose, and wears bow ties. I want to take him home and put him on my shelf.
(3) I have been studying for the bar too much.
The testing, BTW, is not particularly expensive.
Before depriving someone of life it would seem appropriate enough to permit the opportunity to demonstrate actual innocence.
How about before even putting them on trial?
I don't see how the Constitution confers an indefinite post-conviction right to present new evidence.
This is exacerbated by the interval between crime and proposed DNA testing. Even if one concedes testing might have influenced a jury in 1991, the potential for contamination or DNA deterioration post-crime nullifies any value of the testing at this late date. If, for instance, the knife has been stored in a plastic baggy - a common method especially if the agency felt the knife may have contained body fluids or biohazardous material - there will be no DNA remaining. Predictably given such a finding, the defendant will argue his DNA is not on the knife handle, and he must be granted a new trial. After 17 years.
I think that any material which might yield a result which bears on the facts at issue should be tested however appropriate. However, allowing or requiring tests which can prove nothing relevant should be recognized for the dodge that they are.
As for the apparently eternal right to resurrect and test material post-trial, that seems like an issue for trial, or, to paraphrase, use it or lose it.
In this case the trial took place at a time in which DNA evidence was just beginning to be used. It is hardly fair to expect the defense to have presented DNA evidence at the time.
Particularly at the Federal level, Presidents have often made mass pardons as a political decision intended to preserve the peace or to foster reconciliation after a conflict, including Lincoln's pardon of the confederates and Carter's pardon of draft dodgers. To inject a judicial element into pardons -- to require that specific procedures be performed to determine if a pardon is warranted, for example -- inhibits the use of pardons as an extrajudicial instrument for healing, which is perhaps their most profound and beneficial use. Reconciliation involves a voluntary giving up of claims without admitting wrong. Pardons can be a way for the government to settle disputes or even make a unilateral gesture of good faith. If there is no voluntary element and is viewed as a matter of right -- if a pardon carries with it the implication that the pardonee was right or is vindicated -- this purpose is inhibitted.
Perhaps I am imposing a non-lawlerly meaning of the term "due process," but if a truly innocent person is convicted of a crime, and if the fact that he be truly innocent can be proven incontrovertibly, is it not plausible to say that for that reason he did not receive, in his trial, all the process that he was due?
Of course, whether DNA evidence can actually prove anything "incontrovertibly" is another question, as jccamp pointed out.
Thanks for the clarification. Still, if the conviction came when DNA technology was not available I'd say there still should be a right.
I think Yankee_Mark has it right.
I think the issue here is people who got a perfectly fair and lawful trial, then went to prison in 1993, before DNA testing was as cheap and accurate as it is today.
If a person goes to jail today without standard DNA testing, then the case would probably be a Sixth Amendment case about ineffective assistance of counsel.
I don't think this is a fair characterization.
Given the all but unsurpassable standard of review for sufficiency of the evidence, Clemency petitions have become the primary avenue of appeal for those who maintain that they are factually innocent.
Further, Clemency petitions in most states aren't simply at the whim of the governor, but have taken on many of the aspects of independent review of a conviction, there's already considerable procedures and deadlines etc. in place for submitting these petitions.
If the clemency process were actually what you characterize it to be, you might be right, it's something granted that is not deserved. Freedom to the guilty.
But if we narrow this to individuals who are factually innocent but imprisoned, (and there's no denying that some exist), the argument breaks down entirely. These people aren't being granted something they don't deserve, they're having a punishment they didn't deserve lifted. Further, the functioning of the law has made it such that if there were no substantive legal errors, clemency is the only avenue wrongfully convicted people actually have to challenge their sentences.
"No verdict from any court is final until the accused has been acquitted, or pardoned. Then it is final."
The judge seemed to ruled to the contrary, as...
"In sum, although prisoners retain liberty interests regarding the conditions of their confinement, and although capital prisoners retain some degree of life interests in receiving clemency, prisoners do not have liberty interests in release from custody before the end of valid sentences."
...but then he goes on to establish an apparently never-ending right to clemency, which would include any evidence which might tend to increase the likelihood of clemency being granted.
So I guess this is just semantics, and Kazinski is correct.
Count me in that company. And if agreement with Corneille1640 is so widespread outside the circle of initiates perhaps the "lawyerly" interpretation should be reconsidered.
As the scientific ability to collect and define DNA increase, we now face the issue of having too many discrete individuals connected to a piece of evidence. For instance, in this case, if 5 people handled the knife in the time before the crime, and 5 more handled it while it was collected, examined and stored, and another 5 people touched it during trial, we might now get up to 15 sets of DNA on the knife, not counting whoever wielded the knife during the crime. The DNA test can't establish time or place that any set of DNA was transferred to the knife. The DNA test cannot establish that other DNA was not contaminated, removed or degraded. After so much time, it is also likely that the DNA results will not be able to identify any individual at all. The results may be something like 1% of the population for any given identified specimen.
The presence or absence of the defendant's DNA does not prove anything, except that his DNA isn't on the knife. It is not proof that he didn't handle or touch the knife, or use it as charged and convicted. By the same argument, the presence of his DNA proves only that he handled the knife at some point, which is not unreasonable since he lived in the location of the crime (which is probably why the government never tested the knife for fingerprints or DNA at the time of trial. Whether positive or negative, the results would neither prove nor disprove the government's theory of the crime.)
The tests were meaningless at the time of trial, and remain meaningless now.
To say he covered all eventualities seems an understatement.
You think you are making a brilliant argument here, but I would say, in terms of stationery and postage, why not? If you have an indigent prisoner, in jail, and the state decides they want to cut down on clemency petitions so they stop providing prisoners who can't afford to buy stationery and postage any way of filing the clemency petition, why wouldn't that be a constitutional violation?
This is one area where I think originalists and strict constructionists and judicial restraint advocates really look silly. The Constitution guarantees a certain level of procedural fairness when dealing with the government, and it doesn't specify the procedures in detail because there are a million ways (including new ways not thought of in 1789) for the government to impose unfair procedures. This is one area where we really need courts.
According to the opinion--the purpose for the DNA test was to determine if someone else's DNA was on the handle of the knife (though the reason changed--initially it was to see if the victim's blood was on the blade). The Defendant's contention was that it was a his wife's friend's boyfriend who stabbed her.
Probably because in your two examples--unlike the example of the prisoner--it is not the Government itself which is preventing access to means to execute the right.
I refer you to Orin's posts from last week on the is/ought descriptive/normative distinction. Whether I'm "perfectly comfy" with a particular state of affairs is an entirely separate question from whether the Constitution speaks on a subject.
I saw that. However, the defendant cannot identify exactly whose DNA he expects to find. He is merely alleging that an unknown person actually did the stabbing. I am suggesting that the presence of non-defendant DNA is entirely likely - assuming any useable DNA can still be recovered - since any number of people have handled the knife, both pre-crime and post-crime. The presence of foreign DNA on the knife handle proves nothing except that persons other than the defendant have touched the knife. We already know that to be true. So we could concede that other persons' DNA are present, without having to do a test.
This might be different if the defendant was alleging the presence of a specific individual, and that individual was never lawfully in a position to touch the knife. But none of that is true. The defendant cannot identify any particular person whose DNA appearing on the knife will tend to disprove the defendant's guilt. The defendant cannot also state that, if we agree for the sake of argument the existence of a boyfriend, that this boyfriend was never is a position to handle the knife before the crime - for instance, while he was visiting his girlfriend.
The state's representative, responding to the defendant's lawsuit, could have stipulated to the presence of foreign DNA on the knife, with the conclusion "So what?"
If the lawyerly "reasonable interpretation" says it's OK to deny a convicted felon access to evidence that might plausibly establish his innocence I'll pick "non-lawyerly."
Why "due process" doesn't include such access is a mystery to me and, I suspect, many of the uninitiated. No need for infinite stretches. Just common sense. And what's wrong with wanting to check to see if maybe that guy really shouldn't be in jail?
If the lawyerly "reasonable interpretation" says it's OK to deny a convicted felon access to evidence that might plausibly establish his innocence I'll pick "non-lawyerly."
Why "due process" doesn't include such access is a mystery to me and, I suspect, many of the uninitiated. No need for infinite stretches. Just common sense. And what's wrong with wanting to check to see if maybe that guy really shouldn't be in jail?
That's not persuasive. Providing a lawyer costs a heck of a lot more money than providing stationery does, and denying a lawyer is not a complete denial of access.
You are looking for big bright lines in the area of procedural due process, and no such lines ever have or ever can be created.
I feel like I'm bing demonized here. I already said in this thread that I think such convicted felon should be pardoned if they can't get reasonable help from other officials to obtain DNA testing.
All I'm saying is that the courts cannot simply override every other government entity, plus overriding the democratic process, whenever the courts think that would be a good thing. The Constitution does not give court power to do that.
There is much suffering right now in Darfur, so do you think that SCOTUS should issue a writ of mandamus to arrest the President of Sudan? Of course not. There are limits on the power of judges, and those limits ought to be respected by them and by us. If you want to give unlimited power to judges, they may decide how you like today, and how you don't like tomorrow.
Do you think that George Washington was some kind of quibbling, nitpicking lawyer when he said this in his Farewell Address:
If convicts and other aggrieved individuals would spend their time and energy petitioning their elected officials for changes in the law, instead of demanding that judges take care of everything, then they might well get faster action.
I am not suggesting that judges be given unlimited power. Or anyone else, Presidents included.
I'm not aware that the "Law of the Land" leaves no scope for this sort of ruling. Previously unavailable evidence is available. Does the law really clearly say the guy has no right to it? Or is that the sort of thing on which there can be reasonable differences of opinion? Somehow giving him access does not seem like the first step on the road to tyranny. I'd say it was the other way around.
Further, I don't really understand your concept of due process. You seem to be saying that there is no such thing as a statute that violates due process, and that only violations of statutes can constitute violations of due process.
Is it really ridiculous to disagree with that?
If convicts and other aggrieved individuals would spend their time and energy petitioning their elected officials for changes in the law, instead of demanding that judges take care of everything, then they might well get faster action.
Because legislators really pay a lot of attention to convicts' complaints, justified or not?
I do believe that no federal statute could possibly violate the Third Amendment during wartime. However, the Due Process Clause is quite different, and packs a much greater punch, than the Third Amendment.
Come to think of it, maybe part of the problem here is our tax laws. 501(c)(3) organizations are forbidden to lobby for legislation, but are they free to seek new interpretations of the law in court? Hmm.
No, "can be". The only bright line on procedural due process to simply permit its denial in all circumstances. Any other line-drawing is going to be less than bright.
Procedural Due Process is simply not amenable to a "The Rule of Law is a Law of Rules" approach, unless you just decide to screw people over en masse.
[Important Note to Helpful Readers: If we have confusing typos and especially ugly formatting errors, such as an unclosed underline or bold tag, we'd love to hear from you about them -- but please e-mail the author about this, rather than leaving a comment. We often won't read the comments for a while after the post, and if there's a glaring formatting error, we'd see it quickly when we revisit the post, even without the comment; and in any event the comment likely isn't going to be that helpful to your fellow comment readers. So please e-mail us directly about glitches like this. Thanks!]
Comment Policy: We'd like the posts to be civil, of course (no profanity, personal insults, and the like), but we're also hoping that people try to be as calm, reasoned, and substantive as possible. So please, also avoid rants, invective, substantial and repeated exaggeration, and radical departures from the topic of the thread. Sticking with substance -- and staying on-topic -- will make the comments more helpful to other readers, and more pleasant.
As editors, we reserve the right to delete posts, and even to kick out posters, though we hope that both of these will be exceptional events. (We also reserve the right to be busy with other things, and therefore (1) not remove all the posts that might merit removal, and (2) ignore demands such as "You should remove A's posts, because they're just as bad as B's!")
Here's a tip: Reread your post, and think of what people would think if you said this over dinner. If you think people would view you as a crank, a blowhard, or as someone who vastly overdoes it on the hyperbole, rewrite your post before hitting enter.
And if you think this is the other people's fault -- you're one of the few who sees the world clearly, but fools wrongly view you as a crank, a blowhard, or as someone who overdoes it on the hyperbole -- then you should still rewrite your post before hitting enter. After all, if you're one of the few who sees the world clearly, then surely it's especially important that you frame your arguments in a way that is persuasive and as unalienating as possible, even to fools.
Our goal is to provide an interesting and pleasant environment that can help inform readers. To do that, we'll occasionally have to exercise our editorial discretion. Think of this as an in-person discussion group, where having different voices is critical to a great conversation -- but where sometimes the leader has to deal with cranks who sour the conversation more than they enliven it.
Naturally, there's always a risk that this discretion will be used erroneously, no matter how well-intentioned the editor. But discussion groups (especially on the Internet, but also off it) generally need an editor who'll occasionally make such judgments.
And, remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.