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Did Obama Wimp Out on a Rape Case?
Obama is no federalist. Nor has he, in the past, subscribed to the sort of “originalist” arguments that say we can’t read rights into the Constitution that weren’t there in the beginning. Yet that is the gist of the federal government's brief in Osborne, which says “There is no tradition in this country of granting convicted criminals post-conviction access to the prosecution’s evidence locker…. And constitutional rights do not spring into existence simply because science has advanced.”
On the other side, one amicus brief filed on Osborne’s behalf by several former prosecutors (including former US Attorney General Janet Reno) points to several cases in which prosecutors vigorously fought DNA testing for years. When the tests were finally done, they not only cleared the defendant, but, by using DNA databases, identified the actual culprit, who in some cases had gone on to commit more crimes. It also noted that there have been earlier cases, similar to Osborne’s, in which defendants convicted on apparently “overwhelming’ evidence” of guilt were later exonerated by DNA testing.
In the end, the more likely explanation for the Obama Justice Department’s position in Osborne is inertia and deference to tradition. The Bush administration wasn't obligated to take a position Osborne, but it did anyway, filing a brief just days before Bush left office. That's the brief that Obama's deputy solicitor general defended on Monday, continuing the tradition by which a new administration generally argues the old administration's positions in holdover federal court cases.
The argument is that this tradition somehow preserves the integrity of the solicitor general's office. But the solicitor general serves at the pleasure of the president, and is supposed to represent an administration's opinion of what the law is, or ought to be. A change of party in the White House is of course going to bring a change in legal philosophy.
If you happen to be someone wrongly incarcerated in one of the six states that don't guarantee post-conviction DNA testing, hoping for access to the evidence that could set you free, it must be pretty hard to swallow the idea that reverence for some procedural tradition may have prompted the "hope and change" president to argue you have no right to prove your innocence.
Radley Balko is a senior editor for Reason magazine, and maintains a blog at TheAgitator.com.
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Lloyd Grove is editor at large for The Daily Beast. He is also a frequent contributor to New York magazine and was a contributing editor for Condé Nast Portfolio. He wrote a gossip column for the New York Daily News from 2003 to 2006. Prior to that, he wrote the Reliable Source column for the Washington Post, where he spent 23 years covering politics, the media, and other subjects.
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The State's compelling interest in keeping convicted innocent people locked up must be preserved.
NOT!
This is very disappointing.
What is going on in Obama's Justice Dept.?
We expected better of Eric Holder and Company. It is still early, and many of Obama's appointees are still not in place, but early signs on controversial litigation positions have not been particularly encouraging.
How about some serious reporting, beyond individual daily headlines?
This is very, very disappointing.
DNA since it's been proven beyond any doubt what-so-ever access should be allowed to ANYONE!
Way too many people are convicted wrongly, and even ONE person convicted wrongly is way too much!
He needs to keep his word!
He's showing his true colors now.
Is it too early to start making "Don't Blame Me--I Voted for Ron Paul/Bob Barr?"
Yes, this is extremely disappointing to know that the President of the United States doesn't care enough to weigh in on the side of DNA testing for ALL PERSONS.
The author neglects to mention several salient details about Mr. Osborne's case which make it extremely difficult (in my opinion, at least) to mount such a larger defense for prisoners rights -- namely, he confessed to the kidnapping and rape before a parole board, which released him after serving 14 years on a 26 year sentence. His original lawyer refused a more detailed DNA analysis at the time because she was afraid it would provide unchallengeable proof of his guilt. And while a 15% genetic commonality amongst all blacks in North Carolina (the state with the largest percentage of blacks) would certainly implicate injustice, the fact that Alaska remains in the top 5 of states with the smallest percentage of blacks makes for an extremely weak argument.
And to top it all off, Mr. Osborne is now in prison serving out a sentence for a home invasion he committed after being paroled for the rape conviction, and how must serve out the remaining 12 years on the rape conviction as well.
Perhaps what actually stirred the "withering cowardice" of the Obama administration is the fact that allowing such a weak case on the part of the defendant to go forward also negatively impacts the victim -- even if the victim earns her living "on her back." Or perhaps it was this argument offered by Osborne's own lawyer that took the wind out the DOJ sails: "This... is the very first case litigated to our knowledge anywhere in the country where the prosecutor concedes that a DNA test result could possibly be absolutely slam-dunk dispositive of innocence, but doesn't consent to it."
Obama simply doesn't want to be called "soft on crime." This has everything to do with him wanting to maintain power. Politicians are not interested in the preservation of justice.
This may just have been too weak a case to use. Lighten up folks and give Obama some room and air. He can't do it all in a few weeks.
It's been 30 days and Obama doesn't have everything fixed that it took Bush 8 years to screw up.
Gee, you would think he'd be done by now. RIGHT?
The real reason is you can wear gloves, not leave any hair, and not jack off at the scene of the crime and CSI wont have any DNA evidence.
Therefore if you make every case dependent on DNA or its an acquittal, you let murderers go free. I for one don't support the death penalty. I like exile. Old school style, on one of the Aleutian Islands in the Bering sea.
There's a difference between supporting legislation to change the law (as Obama did) with concluding the old law is unconstitutional. To confuse the two issues is to fundamentally misunderstand the difference between two of our branches of government.
Thank you.
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