Actual Innocence and DNA Testing Waivers

In this post exploring DNA testing waivers, the real issue of interest to me is why innocent accused plead guilty to crimes they did not commit. Does this interest anybody else? Does it not trouble you?

A snippet: Defense lawyers who have worked on DNA appeals strongly oppose the waivers, saying that innocent people sometimes plead guilty -- mainly to get lighter sentences -- and that denying them the ability to prove their innocence violates a fundamental right. One quarter of the 243 people exonerated by DNA had falsely confessed to crimes they didn't commit, and 16 of them pleaded guilty....

from the Post article Doc cites.

Actual Innocence, DNA Testing, Sec. 1983, Osborne in the Supreme Court

At this link is the transcript of oral argument in the Supreme Court in the Osborne DNA case from Alaska in which the government argues that new evidence in the form of DNA testing should be denied, remain untouched, apparently in the interests of "finality", one, because 1983 civil claim is not the appropriate way to ask for it, and it is more of a discovery request, and prisoner does not have a federal constitutional right to his own DNA for testing, and because he refuses to swear unde penalty of perjury that he is actually innocent and has confessed twice, and remarkably, that there is no right to present new evidence that shows, or could show, your actual innocence (more to come) -- HuH?

I took some notes yesterday and stupidly kept thinking I'd return to post to the blog and didn't so it's lost, only to be retrieved from memory. Perhaps I'll not bother. Now to return to finish reading the transcript...,

For now, let's just say that this case tests whether or not there is a constitutional right to obtain evidence of actual innocence that is in the possession of the state.

Doc Berman's post on the case has the usual good commentary, here.

Section 1983, DNA, Claims of Innocence (and Potty Fodder for Newsletter)

Here is a new cert grant in a DNA evidence case, District Attorney’s Office v. Osborne (08-6) courtesy of SCOTUSBLOG. An implied question is whether an inmate has a right under the Fourteenth Amendment, after conviction, to seek that type of evidence when the right is based upon the Supreme Court’s 1963 ruling in Brady v. Maryland, requiring prosecutors to turn over evidence that would help the accused’s defense.

Fodder for the Newsletter, which I promise will be out before December. Now for the POTTY FODDER UPDATE, Dahlia Lithwick gives us the following in Slate: (Shit Doesn't Happen, The Supreme Court's 100 percent Dirt-Free Exploration of Dirty Words)

FCC v. Fox Television is not a First Amendment case. It's a First Amendment-minus case, in that while the various justices insist that it need not be decided on constitutional grounds, it nevertheless provokes one of the best First Amendment debates I have ever heard. Since the Supreme Court decided FCC v. Pacifica in 1978, which found the midday radio broadcast of George Carlin's "Filthy Words" monologue to be indecent, the FCC rule has been this: The agency may regulate a daytime broadcast of the sort of "verbal shock treatment" of the Carlin monologue, but it will overlook the "isolated use" of one-off potty words. A 2001 clarification of the FCC policy provided that a finding of indecency requires that the naughty word "describe or depict sexual or excretory organs or activities" and be "patently offensive as measured by contemporary community standards."

Enter Bono, who accepted his 2003 Golden Globe with the heartfelt (live) declaration that the honor was "really, really fucking brilliant." Oh. And Cher, who received her 2002 Billboard music award with the gracious, "I've also had critics for the last 40 years saying that I was on my way out every year. So fuck 'em." And the ever delightful Nicole Richie, who wowed them at the Billboard awards the following year with the observation that "it's not so fucking simple" to remove "cow shit out of a Prada purse."