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>DNA Evidence Not Always Admissible


Inmates Lack Rights To Testing

by Don White

Recently in a Hub blog, eovery brought up a good point. He said he disagreed with the Supreme Court ruling disallowing DNA testing, a very understandable response. Since most people have similar questions about this and because it is controversial – and on the face it does not seem fair – I have written this blog to, hopefully, help answer some of the questions. In the case in point the Supreme Court refused to hear a case and remanded it to the Alaska court that had already acted. There are many reasons the Supreme Court will refuse to hear a case involving DNA. Here are a few:

1. Most such cases belong in state courts and should not be brought up to the Supreme Court of the United States (SCOTUS). The state supreme court is designed to be the court of last resort in most cases. Remember the 10th Amendment?

The Tenth Amendment (Amendment X) of the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791. The Tenth Amendment restates the Constitution’s principle of Federalism by providing that powers not granted to the national government nor prohibited to the states are reserved to the states or the people.

Many attorneys petition SCOTUS and the conviction argument winds up headed for the supreme Court, but most of them don’t belong there. If it isn’t clearly stated in the Constitution, it does NOT belong in Washington! One could argue that Democrats like to take away states’ rights, while Republicans scrupulously guard them.

2. Sometimes courts will hear new DNA evidence if the evidence was not previously subjected to a genetic marker analysis. There are reasons why the court will allow DNA evidence:

If the evidence was previously subjected to a genetic marker analysis (GMA), the court can order GMA if the court finds that: (a) the result of the previous analysis was inconclusive; (b) the evidence was not subjected to the type of analysis that is now requested and the requested analysis may resolve an issue not resolved by the previous analysis; or (c) The requested analysis would provide results that are significantly more accurate and probative of the identity of the perpetrator than the previous analysis.

Sometimes the prosecuting attorney will offer the suspect a chance to plea bargain on one of the counts against him. If the defendant agrees to that in exchange for some time knocked off his sentence, he has waived a chance to have subsequent DNA tests.

Washington Post writer Robert Barnes reported the ruling by the Supreme Court in a June 19, 2009 article that prisoners do not have a constitutional right to DNA testing after their conviction even though the technology provides an “unparalleled ability both to exonerate the wrongly convicted and to identify the guilty.” This is now the law, but it doesn’t mean a state couldn’t accept a certain case that may fit outside the confines of that ruling and rule in that case that new DNA testing could be accomplished.
“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 for the majority in a 5 to 4 decision.
Judge Roberts said that “to suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response,” The case was one of the most anticipated of the term, given the revolutionary role DNA testing has played in modern criminal proceedings. The Innocence Project, a group that represents those who say they have been wrongfully convicted, said such testing has exonerated 240 people nationwide, at least 17 of whom had been sentenced to die.
In a statement that totally disregards state’s rights and varying sets of evidence and parameters as we listed above, dissenting justices, led by John Paul Stevens, said the right to post-conviction DNA testing should not depend on the widely varying laws enacted by the states. Allowing a prisoner to test DNA evidence at his own expense would “ascertain the truth once and for all,” Stevens wrote.
He was joined in dissent by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
The case at hand comes from Alaska, one of three states without a law allowing post-conviction access to biological evidence.
William G. Osborne was convicted of the brutal rape and assault of a prostitute in a secluded area near Anchorage International Airport in 1993. Osborne wanted to pay for a more discerning test of semen found in a condom at the crime scene, a test prosecutors agreed would almost definitively prove his guilt or innocence. But prosecutors refused to allow it, and Alaska courts agreed that Osborne did not qualify under the procedures they had established.
Osborne Appealed
Osborne appealed to the federal courts, and the U.S. Court of Appeals for the 9th Circuit in San Francisco recognized a right to such testing under the due-process clause of the Fifth Amendment.
But Roberts, joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr., said that was wrongly decided. “A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man,” he wrote, and thus states have more “flexibility” in deciding procedures for post-conviction relief.
The majority said Alaska’s procedures seemed sufficient and there was no reason for federal courts to “leap ahead” of the states.
“Federal courts should not presume that state criminal procedures will be inadequate to deal with technological change,” Roberts wrote. “The criminal justice system has historically accommodated new types of evidence, and is a time-tested means of carrying out society’s interest in convicting the guilty while respecting individual rights.”
Prosecutors had told the court that Osborne was not a good cause for those worried about the wrongly convicted. He was identified as the woman’s attacker not just by her but by an accomplice. At trial, one test of the semen found at the crime scene said it could have come from Osborne but also from about 15 percent of the population of African American men.
This proves the variability of DNA tests. But the conviction in court was established with eye-witness evidence which made this a more iron-clad case.
Osborne’s attorney decided not to pursue more exacting testing at the time because of a fear that it would implicate him further. Since then, Osborne has both professed his innocence and, in an attempt to win parole, confessed to the crime. He is now back in prison on an armed-invasion conviction that came after his release

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>Mad Scientist Did It


Anthrax Case Closed

By Don White

That was the big news this week. After ten long, hard years of investigating, the FBI threw up their arms and pinned it on a so-called “mad scientist” when there was scarcely a motive. Bring back the Frankenstein movies…

And why did it take them so long? We’ve had forensic science and DNA for years. It’s because this became an embarrassment to the FBI. Bush couldn’t go to China with this on his mind. They had to pin it on someone. And why haven’t there been other anthrax letters and scares in eight years? It’s because the real Marcus Junius Brutus killed himself eight years ago. Enough already…But not for the relentless FBI.

Police often get the cart before the horse. They find a suspect and do their darndest to produce evidence to convict him. And they aren’t above manufacturing evidence or changing scientific clues. Many people believe science is gospel, it can’t be wrong. Well, the fact is it can and often is wrong. Scientific crime solving or sci-crime is a big industry. People get paid lots of money to put cases to bed and bodies in jail. Just look at TV shows like “Bones” and “CSI” to get a flavor of this. It’s not as cut-and-dried as the FBI would want you to believe.

To investigators, a closed case is a good case. Thus, the FBI has declared a ten-year-old anthrax case closed, pointing the blame for 5 deaths at suicide victim Bruce Ivins. He must have known authorities were closing in on him, right? He killed himself as the Justice Department was preparing paperwork to bring charges.

If you heard the Feds were closing in on you, you’d probably kill yourself too rather than spend the rest of your life in a box. But how will we ever know if he was the guilty party or not? We won’t. It’s a fascinating case, but motive? What was his motive for sending around these envelopes containing anthrax. Some said he wanted to get back at someone in government for holding up a promotion. Now, that’s a pretty flimsy reason to hold up the world.

Some said he had to be nuts. That’ll work. He probably could have gotten off on an insanity plea. I know if the ACLU had gotten wind of this anthrax stuff—it would have been a good day, and the world would have been far better off. But, my point is they would have come to his rescue. The worst he could have gotten was life in a country club somewhere where he could spend his days in the garden picking daisies, mixing potents and putting toxins in the food of fellow inmates. Imagine the money America could have saved by placing him in every prison in the country. Soon the prisons would have been empty. We could have torn them down and installed ten million oil wells or built McCain’s 450 atomic reactors to give a few wild-eyed Democrats a real rush.

After ten years, because of the advent of DNA, prosecutors became confident that the anthrax crimes were the work of a man who spent his career developing anthrax vaccines and cures to save lives at the bioweapons lab at Fort Detrick, Md. Do you find something wrong with that statement?

Sure, he did it! For crying-out-loud and X$**!><, he was a life-saver, not a killer!!!

Authorities said they were confident Ivins could be convicted. They always are, aren’t they? But how many times are they “dead” wrong? A lot. There are thousands of innocent people serving life sentences in prison today because some mad scientist in the FBI Crime Lab made a mistake. I say we investigate the FBI. We would probably find dozens of nutty scientists who are destroying something we eat as we innocently sit at the dinner table…

So, this case goes down as another victory for science and the FBI over crime and the underworld? Well, it’s not your usual case because to come to the conclusion the mad scientist did it they had to read a lot of comic books, gory stuff with reanimated human beings reconstituted from bones and organic body parts and organs from local charnel houses.… finally resorting to DNA evidence. Why didn’t they use such DNA evidence before? They said it wasn‘t available to them before. But DNA wasn’t discovered yesterday. Criminal investigators have used DNA to convict people for decades. Watson and Crick described structure of DNA as early as 1953.

Officially, DNA was discovered no later than1962. when a Cambridge University graduate student Francis Crick , along with Maurice Wilkins of Kings College in London, and research fellow James Watson won a Nobel Prize for physiology/medicine. It was heralded as the greatest scientific discovery of the last 100 years. Of course, we even had DNA when FBI Director Robert Mueller was a kid.

Detectives have known about DNA. Didn’t Sherlock Holmes have something to do with chemistry in his apartment? And Mike Hammer and Dick Tracy are some other big-time names that were using DNA at least 50 years before the FBI decided they were onto something.