Blog on the Run: Reloaded

Monday, June 22, 2009 8:53 pm

Truth, justice and the American way

In theory, and at its best, the American criminal justice system both finds out the truth and metes out appropriate justice to the deserving, guilty and not guilty alike. As a state prosecutor whom I used to cover would always tell juries during both opening statements and closing arguments, “verdict” comes from Latin meaning, “to speak the truth.”

But in real life, most days, the anti-crime politics of The American Way have turned what is supposed to be a search for truth, if not justice, into a conviction machine. And conviction machines, like sausage machines, frequently produce repulsive products.

I suppose one probably could find a more repulsive product than the Supreme Court’s 5-4 ruling last week in the case of an Alaskan prisoner named William G. Osborne. But the search would stink to high heaven and probably would lead to the discovery of the execution of innocent people.

The court denied that prisoners have a right, post-conviction, to obtain DNA testing that might conclusively prove their innocence (or guilt). What’s particularly galling in this case is that Osborne has been in prison since 1994, when DNA testing was much less precise than it is now. It’s not like Osborne is only now raising an issue that he could have raised 15 years ago. (And even if he were, so what? The failure of his counsel to have done so at the time should have been treated as prima facie evidence of that counsel’s incompetence, had such testing then been available.)

The Times editorial noted that Chief Justice John Roberts, in his majority opinion, acknowledged that DNA testing is more precise than ever before. But, the Times said, “he treated that breakthrough more as an irritant than an opportunity.”

Think about that: Roberts didn’t give a damn that 1) an innocent man might be in prison and 2) a rapist might still be running around free. Neither did four of his colleagues. Their vote in this case, a clear violation of a defendant’s right to confront evidence against him, is not strict constructionism. It is sociopathy, and it ought to be grounds for impeachment. At the least, no sane person can call it justice.

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