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Ex-Fed Prosecutor Parker: State of Alaska and Prosecutor to Blame in DNA/Supreme Crt Case

Ross Parker

Ross Parker

By Ross Parker
ticklethewire.com columnist
The greater majority of Americans long assumed that the criminal court system worked just fine. With criminal defendants afforded substantive Constitutional rights, many people assumed the nation’s prison held no innocent men or women.

This blithe assumption was upset in recent times by the use of DNA technology in post-conviction settings, which scientifically demonstrated that the innocent do indeed – even if only rarely– get convicted in this country.

Not only has the infallibility of the jury system suffered a blow by this development, but whole categories of evidence upon which we prosecutors relied upon like confessions and eyewitness identifications, which were utilized in over 75% of the wrongful convictions, have been called into question and become the targets of “reform” movements.

Last week the Supreme Court ruled in the 5-4 Osborne decision that an Alaska inmate did not have the right under the Due Process Clause, in the context of a Section 1983 civil rights suit, to have access, at his own expense, to semen evidence from his rape trial for DNA testing.

Although the Court recognized the “unparalleled ability” of DNA to exonerate the wrongfully convicted and identify the guilty, the majority held that the power to establish rules to regulate the use of this investigative resource belongs primarily to the state legislatures. Since Alaska’s post-conviction relief procedures were not fundamentally unfair, the federal courts could not upset procedures which disallowed “freestanding” discovery rights.

The majority relied on principles such as federalism, comity, finality and states’ rights, to reject the broad-based due process right of access to evidence for testing purposes advocated by Justice Stevens’ four-member minority.

Read by a career legal technician, particularly an ex-prosecutor, the majority opinion seems to rely on sound, time-honored legal reasoning. It is, moreover, as pointed out by Attorney General Eric Holder, both limited in scope and unlikely to foreclose the DNA testing examinations being conducted by the tens of thousands in the state and federal crime laboratories.

However, now that we must acknowledge that there are factually innocent people in prison and that there is an inexpensive and uniquely definitive test to exonerate them, as well as confirm the rightness of the imprisonment of the guilty, principles such as finality and comity seem rather underwhelming. One wonders whether the moral credibility of the nation’s criminal justice system would not benefit from the

Supreme Court stating, for the first time, that there is a fundamental right to be released from punishment upon proof of actual innocence.

Whatever your doubts about the balance struck by the Supreme Court in Osborne, the real target for moral criticism in this case ought to be the State of Alaska and its Prosecutors. In addition to having no law on DNA testing, the state has apparently never authorized a post-conviction DNA test, either at the instance of the prosecution or as a result of a court’s order.

What was the Prosecutor thinking? Instead of consenting to a simple test and settling the defendant’s culpability once and for all, they chose to spend thousands of hours of litigation, undoubtedly hundreds of thousands of dollars, and years of time litigating an issue without articulating a single reason justifying these extraordinary expenditures. Why do it? Apparently because they can.

Prosecution policy-making like this weakens our system of justice and encourages “reforms” which complicate and impede law enforcement’s search for the truth.

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office.


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Time June 22, 2009 at 2:12 pm

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Time June 22, 2009 at 3:42 pm

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