Thursday, February 5, 2009

Prosecutors, Crime Victims, People Exonerated with DNA Testing and Others Urge U.S. Supreme Court to Recognize Constitutional Right to Post-Conviction DNA Testing

Amicus briefs filed in Innocence Project case set for oral argument March 2 at U.S. Supreme Court

(WASHINGTON, DC; February 5, 2009) – Prosecutors and victims of crime joined people exonerated with DNA testing and leading legal rights organizations this week urging the U.S. Supreme Court to recognize that the federal Constitution allows prisoners access to DNA testing that could prove their innocence.

Five amicus briefs were filed on behalf of William Osborne, an Innocence Project client, who has been seeking DNA testing for eight years to prove his innocence. Osborne was convicted of rape, attempted murder and related charges in 1993 in Alaska. Alaska is one of just six states without a law permitting prisoners to apply for post-conviction DNA testing. Prosecutors in Alaska have refused to permit Osborne to conduct DNA testing at his own expense, even though they concede that favorable DNA results would “conclusively prove Osborne’s innocence.” In 2008, the U.S. Court of Appeals for the Ninth Circuit ruled that it is unconstitutional to deny him access to DNA testing, and the state appealed that ruling to the U.S. Supreme Court, which will hear oral arguments in the case on March 2.

One amicus brief is from current and former prosecutors with nearly a century of prosecutorial experience at the local, state and federal levels, each of whom have substantial experience with DNA testing in criminal cases. Another is from victims and victims’ family members who have been profoundly impacted by post-conviction DNA testing. A third brief was filed by several of the 232 people nationwide who have been exonerated with post-conviction DNA testing, and another was filed by people who were granted clemency because of DNA testing. An amicus brief was also filed by leading civil liberties and legal rights organizations. Each of the briefs is summarized below, with links to the full text.

“These briefs reflect the growing consensus that everyone – prosecutors, defendants, crime victims, the government and society – has an interest in making sure people have access to DNA testing that can prove innocence,” said Peter Neufeld, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. Neufeld will argue the case at the Supreme Court next month. “In the vast majority of cases, prisoners are granted DNA testing under state law or because prosecutors consent to testing without a court order. Alaska is the exception. It is the only state in the nation with no known case of a prisoner receiving DNA testing, either through court order or a prosecutor’s consent. This case involves a very important constitutional protection – one that is the only option for William Osborne.”

For background on the case (including the Innocence Project’s brief filed on behalf of Osborne last week), go to:

Below are summaries of the amicus briefs filed in the case.

Current and Former Prosecutors

This brief was filed by current and former prosecutors with nearly a century of prosecutorial experience at the local, state and federal levels. They have handled rape and murder cases where DNA testing was relevant, and they have also prosecuted people where evidence indicated guilt but guilt was not certain. Some of them prosecuted people who were later exonerated through DNA testing, and some granted requests for post-conviction DNA testing that exonerated innocent people.

The brief notes that the pursuit for justice is a fundamental crux of our criminal justice system, and modern DNA analysis can, in many cases, fulfill the search for truth. The brief says that, as a result, the majority of prosecutors are willing to review cases where DNA testing could change a verdict – but that relying solely on the unfettered discretion of prosecutors can sanction injustice. The prosecutors argue that a limited federal right to post-conviction DNA testing would pose a minimal burden on state laws and procedures and would not affect state laws that are already in place. The brief also says state and federal resources would not be overwhelmed by a limited federal right to post-conviction DNA testing. (Donald B. Ayer at the law firm of Jones Day is counsel of record on the brief.)

Following are current and former prosecutors who signed the brief:

Janet Reno, former Attorney General of the United States; Thomas M. Breen, former Assistant State’s Attorney in Cook County, Illinois; Kenneth L. Gillis, who served in high-level supervisory positions in the Cook County, Illinois, State’s Attorney’s office for 12 years; Peggy A. Lautenschlager, former Attorney General for the State of Wisconsin; Carl J. Marlinga, who was the elected prosecuting attorney of Macomb County, Michigan (in suburban Detroit); Scott D. McNamara, who was elected to serve as District Attorney of Oneida County, New York, after having been appointed to that position earlier that year; Jim Petro, former Attorney General of Ohio; Craig Watkins, District Attorney for Dallas County, Texas; and Andrea L. Zopp, former assistant United States Attorney for the Northern District of Illinois then Chief of the Narcotics Bureau of the Cook County State’s Attorney’s Office and First Assistant State’s Attorney of Cook County.

Crime Victims and Victim’s Families

These victims and victims’ family members have been profoundly impacted by post-conviction DNA testing. They include victims whose misidentification of an innocent person resulted in a wrongful conviction later overturned with DNA testing and a woman who was raped by a man who remained at large while an innocent person was in prison for his previous crimes. They also include people who thought their loved ones’ murderers had been convicted – only to learn years later, through post-conviction DNA testing, that innocent people had been wrongfully convicted and justice had not been done.

This brief outlines the ways post-conviction DNA analysis serves and supports victims’ rights and notes that other crime victims and their families are likely to be affected by the resolution of this case. “Amici have all suffered in some way at the hands of criminals, but they have also experienced the power of post-conviction DNA testing to rebalance the scales of justice,” the brief says. While the federal government and all 50 states have passed legislation recognizing the rights of crime victims, the brief notes that innocent defendants should not be punished for crimes they did not commit – something the government and the victims of crime have in common. At the core is the power DNA testing has to determine innocence or guilt and to provide victims, defendants and society with finality. (Kenneth W. Starr at law firm of Kirkland & Ellis is counsel of record on the brief.)

Following are some of the victims and victims’ family members who signed the brief:

Melinda Elkins, who endured her husband’s false conviction for the rape and murder of her mother and the rape of her niece; Tracy Kenellopoulos, who was raped by a man with a history of sexual assaults, who remained at large because an innocent man was wrongfully convicted of his crimes; Jeanette Popp, who watched two innocent men go to prison for her daughter’s rape and murder; and Jennifer Thompson-Cannino, who twice testified against an innocent man she was convinced had raped her; she was victimized by the crime against her, and then by her own guilt when she learned she had misidentified the assailant.

People Exonerated with Post-Conviction DNA Testing

This brief was filed by several of the 232 people nationwide who have been exonerated with post-conviction DNA testing. The brief says they are “uniquely positioned” to help the Supreme Court understand the significance of its decision in this case. The brief – signed by people who falsely confessed to crimes, were misidentified by victims/witnesses or were implicated by unvalidated or improper forensic science, only to later be proven innocent through DNA testing – argues that even when guilt appears overwhelming, access to DNA testing can prove innocence. The brief also says the Supreme Court should recognize that people have a constitutional right not to be incarcerated or executed if they are actually innocent – an issue that the court has never resolved. (Paul A. Engelmayer at the law firm of Wilmer Cutler Pickering Hale and Dorr is counsel of record on the brief.)

Following are people exonerated through DNA testing who signed the brief:

Kirk Bloodsworth, the first person in the country exonerated from death row with DNA testing, after serving nearly nine years on a wrongful conviction for rape and murder in Maryland; Kennedy Brewer, who was exonerated in 2008 after 15 years of incarceration – and a full seven years after DNA testing proved his innocence in the rape and murder of his girlfriend’s three-year-old daughter in Mississippi; Roy Brown, who was sentenced to 25 years to life for murder in New York and served 15 years before he was exonerated through DNA testing in January 2007; Jeffrey Deskovic, who was 16 years old when he falsely confessed to murdering a high school classmate in Westchester County, New York, and served 17 years in prison before a District Attorney consented to advanced DNA testing and he was finally exonerated; Dennis Fritz, who served 11 years in prison in Oklahoma for a rape and murder that DNA eventually proved he didn’t commit; Bruce Godschalk, who secured DNA testing through a federal lawsuit after the District Attorney and state courts denied his request; he was exonerated in two rape cases after serving 15 years in prison; Kevin Green, who was convicted of second-degree murder and attempted murder after the severe beating of his wife resulted in the stillbirth of their unborn child in California. After 17 years in prison, Green was exonerated when state investigators running semen samples from unsolved cases against a new state DNA database matched several crimes to a convicted rapist, who then confessed to the attack on Green’s wife. Ray Krone, who was wrongfully convicted of murder in part because of testimony that his teeth matched bite marks on the victim. He served 10 years in Arizona prison – three of them on death row – before DNA testing proved his innocence; Christopher Ochoa, who falsely confessed to a Texas murder in order to avoid the death penalty and was finally exonerated after 12 years in prison; and Anthony Robinson, who was wrongfully convicted of sexual assault and whose pleas for DNA testing were denied for years before a District Attorney consented and the results proved his innocence.

Civil Liberties and Legal Rights Organizations

Three leading organizations in civil liberties and legal rights filed a brief underscoring the legal principles at stake in this case. The brief argues that under the Constitution’s protection of individual liberty, a state cannot continue to detain someone who conclusively proves through a DNA test that he is innocent of the crime that is the basis for his incarceration. When a person conclusively establishes his innocence through a DNA test, there is no possible legitimate state interest in continuing to detain him, the brief says. The continued imprisonment violates Due Process under any potentially applicable standard. The organizations argue that Due Process also guarantees access to the DNA evidence necessary to establish an actual innocence claim. The same fairness and truth-seeking principles that require pre-trial disclosure of exculpatory evidence also require the government to honor a specific post-trial request for DNA evidence that has the potential to establish actual innocence. (Walter Dellinger and Irving L. Gornstein at the law firm of O’Melveny & Myers are counsel of record on the brief.)

Following are organizations that signed the brief:

The American Civil Liberties Union (ACLU), a nationwide, nonprofit, non-partisan organization with more than 500,000 members dedicated to the principles of liberty and equality embodied in the Constitution; The Rutherford Institute, an international civil liberties and human rights organization headquartered in Charlottesville, Virginia that specializes in providing legal representation without charge to individuals whose civil liberties are threatened or violated; and The National Association of Criminal Defense Lawyers (NACDL), a non-profit organization that is the only professional bar association that represents public and private criminal defense lawyers at the national level.

People Who Received Clemency through Post-Conviction DNA Testing

This brief was filed by people who were exonerated when they were granted clemency based on DNA testing post-conviction. The brief notes that if they had been convicted in Alaska, “they could still be in prison today” and discusses the constitutional rights at stake when the innocent seek clemency. Prisoners who can demonstrate their innocence beyond dispute have a uniquely legitimate expectation that they actually will receive clemency. Not only have numerous individuals throughout history received pardons on innocence grounds, many have received clemency on the basis of DNA evidence. Amici are among these individuals. Their brief argues that denying a prisoner access to biological material that could decisively demonstrate his innocence deprives him of his liberty interest in obtaining clemency without due process of law.

The brief outlines the clemency process and the significance of DNA testing in many clemency proceedings. It argues that Alaska’s refusal to grant DNA testing in this case “flouts any possible sense of fair play” and is “perverse.” (Jeffrey L. Fisher at Stanford Law School’s Supreme Court Litigation Clinic is counsel of record on the brief; the law firms of Akin, Gump, Strauss, Hauer & Feld and Howe & Russell also worked on the brief.)

Following are the individuals who have received clemency through DNA testing who signed the brief:

Kenneth Adams, who was exonerated 18 years after being wrongfully convicted in Illinois for rape and murder; Marvin Anderson, who was exonerated 19 years after being wrongfully convicted and imprisoned in Virginia for robbery, forcible sodomy, abduction and two counts of rape; A.B. Butler, who was exonerated after almost 17 years in a Texas prison for aggravated kidnapping and rape; Kevin Byrd, who was exonerated 12 years after being wrongfully convicted and imprisoned in Texas for rape; Michael Evans, who was exonerated 26 years after being convicted in Illinois for a rape and murder he did not commit; Paula Gray, who was pardoned for innocence after serving nine years in prison in Illinois; Dana Holland, who was exonerated after serving 10 years of a 118-year sentence for two separate wrongful convictions for rape, armed robbery and attempted murder; Edward Honaker, who was exonerated after being wrongfully convicted in Virginia of seven counts of sexual assault and rape; Steven Linscott, who was exonerated after serving three years in prison and out on bond for seven years for a wrongful murder conviction in Illinois; Ben Salazar, who was exonerated five years after being wrongfully convicted of aggravated sexual assault of a pregnant woman; and Earl Washington, who was exonerated 16 years after being wrongfully convicted and sentenced to death in Virginia.


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