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Convict Denied Access to DNA Evidence

This past Thursday, the U.S. Supreme Court ruled that prisoners have no constitutional right to DNA testing that might prove their innocence. The 5-to-4 decision concerned William G. Osborne, who was convicted in 1994 of kidnapping a woman, sexually assaulting and beating her, and leaving her for dead.

Prosecutors have conceded that biological testing on evidence found at the Anchorage, Alaska, crime scene could categorically establish Osborne's guilt or innocence. Furthermore, Osborne has offered to bear the cost of the testing—but is being denied access to the evidence.

Chief Justice Roberts, while acknowledging DNA testing's "unparalleled ability both to exonerate the wrongly convicted and to identify the guilty," argued that "to suddenly constitutionalize this area, would short-circuit what looks to be a prompt and considered legislative response."

Justice Alito added that allowing Osborne to forgo testing at trial and then request it from prison, "would allow prisoners to play games with the criminal justice system. After conviction, with nothing to lose, the defendant could demand DNA testing in the hope that some happy accident – for example, degradation or contamination of the evidence – would provide the basis for seeking postconviction relief."

Alito was also concerned about the significant costs the states would incur were prisoners "given a never-before-recognized constitutional right to rummage through the state's genetic-evidence locker..."

To sum up the decision – or, to be more accurate, my interpretation thereof – the Court saw fit to uphold the integrity of the judiciary process, when flawlessly executed, even at the expense of losing an opportunity to exonerate a convicted individual.

In lieu of commentary, I'd like to contrast this decision with the way Jewish law handles post-conviction exoneration.

The following is a translation from Maimonides' Mishneh Torah, Laws of Sanhedrin 13:1:

One who is sentenced to death is taken out of the courthouse. A kerchief-bearing person stands at the entrance of the courthouse—together with a horse [and rider]. And it is announced:

"So-and-so is being taken to be executed via these-and-these means for this-and-this crime that he committed in this-and-this location at this-and-this time—based on the testimony delivered by so-and-so and so-and-so. Whoever has reason to exonerate the defendant, let him approach!"

If someone comes along and says, "I have exculpatory evidence!" the kerchief bearer waves and the horse-rider races [to the execution site] and the defendant is returned to the courthouse. If the exculpatory evidence is confirmed, he is exonerated; if not, he is again taken to be executed.

Even if the defendant himself says, "I have what to say to exonerate myself," even though it seems that there is no substance to his argument, he is returned to the courthouse a first and second time—perhaps it is due to fear that he can't properly express his case; maybe in the courthouse he will calm himself and state his argument.

If they returned him to the courthouse and found that, indeed, there was no substance to his argument, he is taken back to be executed. If a third time he says, "I have what to say to exonerate myself"—if there is substance to what he is saying, he is returned to the courthouse, even if this repeats itself many times...

Note: Although the above passage describes the procedure for capital cases, Maimonides explains (ibid. 11:4) that this all also applies to cases of manslaughter, which is punishable by exile to a City of Refuge, a punishment significantly less severe than incarceration in a prison cell.


Reader Comments
Latest Comments:
Posted: June 30, 2009
DNA test of convict
I wonder how Mr. Osborne decided no to accept DNA test. How his lawyer accepted it. What is the background of Mr. Osborne. Is he a habitual offender, rapist or such criminal. What is his family history. The crime he committed is raping and torture. In such cases circustancial evidence must have been presented by a Govt. lawyer beyond any doubt. Any where in this world the criminal gets maximum benefit making conviction a joke. Poor victim always suffers severe indignity and trauma.If Mr. Osborne is proved guilty on all counts then DNA evidence is not required. He is toying and playing with justice.
Posted By Walsh, Bangalore, India

Posted: June 28, 2009
The article states Mr Osborne chose to not be tested for DNA evidence during his trial. If in fact he elected not to undergo the tests at that time, then I accept that he has, indeed, given away his chance. However, if in fact Mr Osborne was coerced into not being tested, or not givien full/correct information about the test, then he should be allowed to undergo the test now.

I agree people should not be given free rein to play havoc with the system, but that does not mean they should be denied the evidence that would prove their innocence.
Posted By tlg, nyc

Posted: June 28, 2009
Justice is Big Business
Shalom,
the justice system employs a vast number of people, all being well paid. As any corporate entity, it wants to grow, not shrink!
I'm sure if any of the Judges who oppose DNA access were incarcerated, perhaps falsely, their opinion would be in favor of. Morally & ethically,
any avenue to prove innocence or guilt defiantly should be employed. The judges day of judgment before G-d will come. Apparently, the
US has more incarcerated people per capita, than any other country in the world. [ LA Times ]
WHY?
Posted By Tone Lechtzier, Lake Creek, OR US

Posted: June 23, 2009
JUSTICE?
Apparently, Justice Alito is not at all interested in justice being served. He is more interested in the protecting the pride of the judicial system.

Can you imagine how many sentences would be overturned with DNA testing.
The judicial sytem would be revealed as the circus it really is.
Posted By Anonymous, BROOKLYN, NY

Posted: June 23, 2009
Justice and Chesed
Thank you for posting this, Rabbi Silberberg:

It goes to show that the Torah might still be a better basis for some judicial decisions then 'secular' philosophy; and it stands to correct some peoples' wrong assumption the laws decreed by Torah and halacha are somehow inherently more prone to cruel retribution then, say, that inspired by the 'greek' testament.

On what do people base their value of a human life appealing for exoneration and redemption? If secular, then what: To deny the soul and relegate the body to only the couple of bucks it is worth materially?

But Judges Roberts and Alito are avowed Xtianists, professed men of faith.

What next?

Are they now going to claim that the resurrection is unconstitutional?

That may explain why, if I have any say in the matter, if I must be judged for my sins and errors by any human agency apart from G-d Himself, I'd rather it be a Sanhedrin made up of Chasidic rabbis such as yourself; balancing judgement with G-dly chesed.
Posted By Thomas Karp, New Haven, Ct.


 



By Naftali Silberberg   More by this authors...  |   RSS Listing of Newest Articles by this Author
Rabbi Naftali Silberberg resides in Brooklyn, NY, with his wife Chaya Mushka and their three children.

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