SCOTUS DNA ruling not a problem for Texas, but maybe for Sotomayor

A number of readers have asked my views on last week's Supreme Court decision in the Osborne case out of Alaska where a slim, 5-4 majority ruled there is no constitutional right to postconviction DNA testing.

My first, admittedly parochial thought: Texans needn't particularly care. We have strong statutory access to post-conviction DNA testing in Chapter 64 of the Code of Criminal Procedure. According to media accounts, 46 states have DNA testing statutes on the books, and Texas has one of the best.

However, in the big picture, at least on the margins, the Osborne decision, as the Washington Post put it, "increased the risk that the wrongly convicted could be kept behind bars. Michael Landauer at the Dallas News Death Penalty Blog laid out the crux of the issue facing the court:

I'm torn. ... I have a hard time thinking it's OK to limit any evidence from being submitted that might prove guilt or innocence. Why would we do that? It drives me nuts that the appeals process is treated by some as a chess match instead of a search for truth. Once the jury speaks, that search ends and it's all about tactical, constitutional arguments, it seems.

Still, I would hate to see people who are so clearly guilty use this as a ploy to sorta roll the dice. We saw on Dallas DNA, the show about exonerations in our county, that some people really do that. They waste the courts' time just for kicks.

Landauer captures the issue precisely: This is basically about the convenience of judges and concerns about clogged court dockets vs. the right of innocent people to dispute their sentence, with a little snooty judgmentalism thrown in toward those who would "roll the dice." I replied thusly in the comment section:

Yes, on Dallas DNA and in some other instances, people who, in hindsight (after DNA fingered them), were clearly guilty tried to "roll the dice." They failed, and while their actions constitute an annoyance, it's not an intolerable one balanced against the large number of recent exonerations.

The problem is, we can't tell who is "clearly guilty," for sure, anyway, until AFTER the DNA test. Some people former Dallas DA Bill Hill thought were "clearly guilty" were granted DNA tests under Craig Watkins and turned out to be innocent!

As for those who would "roll the dice," there are already provisions in Chapter 498 of the Government Code to punish convicts for frivolous lawsuits by forfeiting their good time. (A bill to ramp up those penalties this session passed out of committee in the House but failed to receive a floor vote.) In practice, though, that seems like a different issue: It's simply untenable to deny actually innocent people access to a forensic test that could prove their innocence just because guilty people might ask for them, too.

How commonly do guilty people seek DNA testing? I've never seen a quantitative analysis, but this spring Mike Ware of the Dallas DA's Criminal Justice Integrity Unit told me that, among their DNA testing cases, the results so far had panned at roughly one-third each: Definitively innocent, definitively guilty, or inconclusive. (An example of inconclusive results might be if the DNA does not match but there were multiple suspects so the defendant can't be conclusively eliminated. Nobody knows how many different people's DNA might be on a sample until they run the tests.)

At the end of the day, if you do the tests (as Texas law requires), guilty people gaming the system will be identified and won't receive relief. However, if the state doesn't allow the test, the harm comes specifically to innocent people who've been wrongly convicted. Whatever the legalities, from a political perspective that's an insupportable stance.

The Dallas DA's office is an exception, both in Texas and nationally. If the DNA might be probative, they support requests for DNA testing through their Conviction Integrity Unit pretty routinely, even teaming up with my employers at the Innocence Project of Texas to vet all their old DNA cases, a process that's now nearly complete.

Elsewhere, though, for the most part prosecutors react defensively to requests for DNA testing because it implies their office might have got it wrong. IMO this prosecutorial impulse to vigorously oppose post-conviction DNA testing is misguided and runs counter not only to the interests of justice but the DAs' and judges' political interests. It opens them up for legitimate criticisms they cannot counter if someone they denied DNA testing to someone who was later proved to be innocent. In such situations, "I'm sorry" really doesn't cut it as a response.

Which brings us to our case study of the day on how denying post-conviction DNA testing can come back to haunt you. Go read this excellent piece from Politico by Jeffrey Deskovic, an innocent man falsely convicted of murder and rape at age 17 who was denied DNA testing by Judge Sonia Sotomayor during his habeas appeal. He spent six extra years in prison because of her decision, all for a crime DNA later proved he didn't commit. The headline of Deskovic's piece: "Sonia Sotomayor's 'empathy' isn't all it's cracked up to be." The whole article is worth a read, but these are the main conclusions he draws:

Despite Sotomayor’s rhetoric, her ruling in my case showed a callous disregard for the real-life implications of her rulings. She opted for procedure over fairness and finality of conviction over accuracy. Many of the victims of wrongful convictions serving long sentences had exhausted their appeals long before they were exonerated. In how many of those cases did Sotomayor vote to refuse to even consider evidence of innocence?

My case is far from unique in an age when the reality of wrongful convictions is well-established. We face the prospect that Troy Davis, an innocent man on death row in Georgia, faces imminent execution, absent intervention by the high court or by President Barack Obama.

I would like an opportunity to testify at Sotomayor’s confirmation hearings to let the senators — and the country — know that we need a Supreme Court justice who understands the problem of wrongful convictions and is ready to correct them where the facts deem it necessary. Procedure should never be used as an excuse to override justice. The state must not be permitted to take away an individual’s liberty and later argue that his or her actual innocence is no longer relevant. Truth-seeking is central to our understanding of justice.

In my case, Judge Sotomayor did not demonstrate that understanding. If that is her idea of “empathy,” a trait that Obama sought in his appointee, then God help us all, especially those who are wrongfully convicted and possibly sentenced to death. Innocence can never be ruled as out of order in court.

Judge Souter, who Sotomayor will replace, held in Osborne that there is not a constitutional right to DNA testing, which judging by her ruling in Deskovic's case appears to also be her position.

RELATED: Picking Sonia.

MORE: See an excellent analysis of this case from national Innocence Project staff attorney Nina Morrison.