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tsk9653
Tsk9653  (Level: 113.2 - Posts: 1466)
Sat, 20th Jun '09 9:33 AM

SCOTUS RULING

Well, for all of my right wingnutty friends on Sploofus, I hope you are happy with young Bush's Supreme Court nominees. But at least their not "activist judges" right? This is an appalling ruling:

http://yglesias.thinkprogress.org/archives/2009/06/conservative-justices-strange-enthusiasm-for-the-punishment-of-the-innocent.php

caramel1
Caramel1  (Level: 128.2 - Posts: 21596)
Sat, 20th Jun '09 9:48 AM

I hope you consider me among your friends, TSK, wing-nut or not. You are a formidable foe. This is an awful ruling. However, for this one believe there could be numerous rulings cited like the "whacko" who eventually shot Dr. Tiller but was released on a whole different charge on a" technicality". Judge Sotomayor's ruling on the case of the white firefighters affected me personally as had a husband who was not promoted simply because he was not a minority. Have two sons and don't want them to suffer from an empathetic "activist" judge. She is a "shoo in" though so guess it doesn't matter- Linda

jank0614
Jank0614  (Level: 67.1 - Posts: 4597)
Sat, 20th Jun '09 10:07 AM

Ah, but of course you use such a left wingnut source that it leaves out the important details, following rather the extremist way of picking and choosing parts of the story - just enough to make ugly attacks against those with whom they disagree. Fortunately, we here at Sploofus are readers and don't take extremist attacks at face value without at least doing a bit of investigation.

In fact, this case proves just the opposite from your assertion. THIS Supreme Court is now proven NOT to be legislating from the bench.

CNN provides a factual explanation of the ruling at http://www.cnn.com/2009/CRIME/06/18/rapist.dna/

The FACT (and actually the Alaskan LAW) mitigated by your extremist source is this:

"Forty-four states and the federal government have laws allowing post-conviction access to biological evidence for such testing, but that number does not include Alaska, where William Osborne was sentenced 15 years ago for a vicious attack on an Anchorage woman...

...Osborne's trial attorney in Anchorage made a strategic decision 16 years ago TO FORGO more sophisticated DNA TESTING of the evidence in the criminal assault case, believing it might end up working against her client. Several years later, the Alaska inmate sought access to the state's biological evidence to have a state-of-the-art DNA test done."

The Supreme Court merely did not override the Alaska state law.

Now this spolights the work that needs to be done needs to be done in Alaska - it's a state problem, not a Supreme Court problem. And I know some in America have long forgotten, but the REAL job of the Supreme Court is not to MAKE law, but to interpret law in the light of the Constitution, which they actually did in this case.

Alaska has a bad law and it needs changed NOW (as it also needs changed in the other 5 states). Then this person will have the law on their side for further DNA testing.


smoke
Smoke  (Level: 96.7 - Posts: 12009)
Sat, 20th Jun '09 10:07 AM

That's sickening. Certainly none of the dreaded empathy to be seen in that sorry mess.

Shame, shame.

jank0614
Jank0614  (Level: 67.1 - Posts: 4597)
Sat, 20th Jun '09 10:15 AM

Feelings aren't law.

The one who also shares in the blame is the sorry lawyer who refused DNA testing for the original trial for fear it would prove the client was guilty.

jank0614
Jank0614  (Level: 67.1 - Posts: 4597)
Sat, 20th Jun '09 10:18 AM

If I'm not mistaken, even if a DNA test had been given to evidence 16 years ago and it had a positve or false positive, Alaskan law would support retesting by more modern means. The law is only that if you refused it the first time, you don't get to change your mind in the future.

But Alaska can fix this quickly by changing the law quickly.

smoke
Smoke  (Level: 96.7 - Posts: 12009)
Sat, 20th Jun '09 10:20 AM

So punish the guy for having a bad lawyer? You get the justice you can pay for, right? Unless you want to pay for a DNA test.

Doesn't matter. Even if the guy is guilty, they're denying him a chance to prove his innocence, and denying it to others who may be innocent. It's immoral to keep people in cages if they can prove they're innocent. How can that be justice? How is that Life, Liberty, and the Pursuit of Happiness?



caramel1
Caramel1  (Level: 128.2 - Posts: 21596)
Sat, 20th Jun '09 10:24 AM

AND. Dr. Tiller who you admire so much, Smoke, is dead because he had a slick lawyer who got him off on a "technicality" on a previous case involving weapons

jank0614
Jank0614  (Level: 67.1 - Posts: 4597)
Sat, 20th Jun '09 10:26 AM

Sigh...it does absolutely no good to discuss law and fact, does it?

The United States was created on a foundation of laws. And the citizens have a right to trusting that the laws will be upheld.

Or why bother making laws if they're all thrown aside by the emotions of the day.

That will be the death of civilation.

We could go by the emotions of the family of the person who was BRUTALLY raped.

Let's let THEIR empathy and love for the victim ALSO matter. Let's just go gut the bas***d in jail. I mean, why is their emotion of less importance to you than the emotion of the accused?

Who gets to decide which laws we'll uphold and which laws we'll throw over by emotion?

smoke
Smoke  (Level: 96.7 - Posts: 12009)
Sat, 20th Jun '09 10:40 AM

Thank you for minimalizing my position to emotionalism.

There is a test that can prove a person's innocence, and a conservative cabal on the highest court in the land has denied that right to citizens when it could have been affirmed. I think that's outrageous. Outrage is an emotion. You nailed me. But I'm not a lawyer, just a concerned, emotional citizen, so Tsk can speak to the law.

This just makes me sad that anyone would defend refusing him the test.

Not debating it. I think it's wrong. The end.





caramel1
Caramel1  (Level: 128.2 - Posts: 21596)
Sat, 20th Jun '09 10:44 AM

Dr. Tiller is very dead and but for a slick attorney and an empathetic judge might not be...

tsk9653
Tsk9653  (Level: 113.2 - Posts: 1466)
Sat, 20th Jun '09 10:51 AM

1. Linda, I do indeed consider you a Sploofus friend.

2. This is an excerpt from the cnn link posted by Jank:

" The justices ruled 5-4 that inmates cannot use a federal civil rights law to press for advanced DNA testing that was unavailable at the time of the crime.

Forty-four states and the federal government have laws allowing post-conviction access to biological evidence for such testing, but that number does not include Alaska, where William Osborne was sentenced 15 years ago for a vicious attack on an Anchorage woman.

"He has no constitutional right to obtain post-conviction access to the state's evidence for DNA testing," Chief Justice John Roberts wrote for the majority. He was supported by his conservative colleagues Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito.

In dissent, Justice John Paul Stevens said, "There is no reason to deny access to the evidence and there are many reasons to provide it, not the least of which is a fundamental concern in ensuring that justice has been done in this case." Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer backed his conclusions."

There is a reference in the CNN article that the Defendant's defense attorney had earlier rejected the use of less sophisticated DNA tests. Since I have not yet read the actual opinion, I don't know if this was relevant to the ruling. I have seen several news sources reporting the holding of the case as "no constitutional right to post-conviction DNA tests" -- which would be a broad ruling not based on an alleged waiver by Defendant of his constitutional rights. I acknowledge reporting on SCOTUS decisions is notoriously inaccurate with respect to the actual grounds for SCOTUS rulings. It seems unlikely, however, that the SCOTUS would grant cert in this case, only to hold that he waived any rights he might have to post-conviction DNA testing, and reserving for another day the question whether their is a constitutional due process right to such testing.

In any event, the testing would even have been paid for by the Defendant, imposing no burden on Alaska. I'm more interested in not imprisoning innocent people. If the test showed him to be the attacker, he stays in prison, but denying the test means the state might be incarcerating an innocent person.

As reported, this ruling would be precedent to deny post-conviction testing, using other, as yet undiscovered, forensic testing that could be dispositive of guilt or innocence.

smoke
Smoke  (Level: 96.7 - Posts: 12009)
Sat, 20th Jun '09 10:52 AM

I am not talking about Dr Tiller whatsoever, nor about empathy, or emotions or Sotomayor, I'm talking about the HUMAN right to prove yourself innocent by whatever means available, and the court that refused it. No more.

garrybl
Garrybl  (Level: 279.5 - Posts: 6639)
Sat, 20th Jun '09 12:28 PM

I'm a little confused here --just dont understand what's written so this is a request for info -- truly, nothing more nothing less.
Caramel can you clarify: were you saying Tiller died because of a slick attorney and an empathetic judge in a case where HE was a defendant or where his killer was?

Barry

bigmama60
Bigmama60  (Level: 95.2 - Posts: 6648)
Sat, 20th Jun '09 12:38 PM

Maybe if some one in those justices, families, or perhaps even one of those justices in favor of denying impartiality through DNA, it would allow those justices to see this appalling mistake. But, I guess I’m forgetting this is America where it’s okay to loudly support Iranians’ inhumane treatment; but deny freedom to her own.

caramel1
Caramel1  (Level: 128.2 - Posts: 21596)
Sat, 20th Jun '09 1:01 PM

http://www.mcclatchydc.com/251/story/69151.html if you read this in its entirety, Barry, you will see a court overturned a probation thing due to weapons in the early 90s-think some would call that a "technicality" This might be a blog but a fact is fact-harder to find a news source that even covered this aspect as they were too busy blaming O'Reilly for calling Tiler 'Tiller the baby Killer" This guy was a "whacko" long before he killed Tiller

smoke
Smoke  (Level: 96.7 - Posts: 12009)
Sat, 20th Jun '09 1:03 PM

Which has nothing to do with this Supreme Court ruling. This isn't about cases being dismissed or lost on technicalities, but the right of the accused to prove innocence with available technology.

caramel1
Caramel1  (Level: 128.2 - Posts: 21596)
Sat, 20th Jun '09 1:04 PM

Barry, you know I don't type well, and you are aware of the reason as I am aware of your reason for pointing out that I did not make my post clear so - CHEERS

caramel1
Caramel1  (Level: 128.2 - Posts: 21596)
Sat, 20th Jun '09 1:07 PM

It does ,however, say much about how the Justice System in our country works or does not work

collioure
Collioure  (Level: 104.7 - Posts: 9952)
Sat, 20th Jun '09 1:13 PM

Thank you, Jank, for shedding the true light of law on this decision. I wasn't about to take TSK's source in any case as the final word because the article was so emotional and because the appellant did not get the vote of swing Judge Kennedy (who is not a conservative, TSK).

I gather it is up to the state of Alaska to change its laws and allow the inmate to prove his innocence.

(Another leap of faith, TSK.)

tsk9653
Tsk9653  (Level: 113.2 - Posts: 1466)
Wed, 24th Jun '09 7:13 PM

1. I have now had an opportunity to read the opinions in "Osborne", and the initial link I provided fairly characterizes the ruling. It directly quotes the first two paragraphs of Stevens' dissent. The majority holds that if an individual state doesn't want to give you access to evidence that could conclusively establish your innocence post-conviction , too bad, so sad -- its a decision for the states, and the right to due process does not include the right to access to such evidence. I happen to think the dissent got it right.

2. As I suspected would be true, the Court did not address whether their was a waiver of any due process right because Osborne didn't undergo the less sophisticated tests that were available when he was charged.



jank0614
Jank0614  (Level: 67.1 - Posts: 4597)
Wed, 24th Jun '09 7:19 PM

Tsk - as an attorney, do you think if Alaska quickly changed their law to match that of the other (was it 44?) states that allow the testing, would it allow this person to have access to the evidence for further testing? Or would that kind of law only apply to cases from the time it was signed?

tsk9653
Tsk9653  (Level: 113.2 - Posts: 1466)
Wed, 24th Jun '09 7:36 PM

Jank: I couldn't say for certain. The Alaska legislature could establish a cut-off date in such a statute, allowing people convicted after a certain date to have access to the evidence, and that date could include Osborne. The legislature could specifically provide it applied only prospectively, that is, to people convicted after the date of the enactment, in which case it would be of limited utility. If the legislature is silent and doesn't address an effective date, the general rule is that the statute applies prospectively only.

diva305
Diva305  (Level: 146.6 - Posts: 1651)
Wed, 24th Jun '09 10:16 PM

Gee I dunno Atty Tsk-doesn't a S.Ct. opinion mean the MAJORITY affirms a ruling?
And you think the dissenters are right? Who can you appeal that to I wonder?

Hmmmmm.....better go check my law books.

collioure
Collioure  (Level: 104.7 - Posts: 9952)
Thu, 25th Jun '09 4:24 AM

TSK writes, "the initial link I provided fairly characterizes the ruling."

Oh, my! It was written to make us believe the defendant was innocent and that the Court was unsympathetic.

In fact the Court including the swing Justice applied the law, the defendant had confessed to the crime and semen matching at the time had provided a result with 95% confidence. Moreover, Osborne's lawyer refused DNA testing because she believed it would provide an even stronger match. FYI Osborne was released on parole in 2007 and soon arrested for committing yet another crime.

But, if you can't work your way through Keith Olbermann's juvenile journalistic dishonesty, you might think this article a fair characterization. It is everything but.

tsk9653
Tsk9653  (Level: 113.2 - Posts: 1466)
Thu, 25th Jun '09 8:21 AM

Diva: Yes, I think the dissent reached the correct result, but at least with respect to the case presented, there is no further appeal. Maybe if a new justice replaces one of the five in the majority, the holding of the case might be overturned in some subsequent Supreme Court case, but that would be a long shot.

The dissent is right because the testing could definitively establish Osborne's guilt or innocence through testing not available when he was charged, and Osborne is willing to pay for the testing himself. So, we have a case where the requested relief -- access to some DNA for testing -- imposes no substantial burden (really, no burden) on the state, but which could establish Osborne's guilt or innocence. Under such circumstances, no doubt in my view that Osborne should have been found to have a due process right to the DNA post-conviction. But then, I don't see how society benefits by incarcerating people who aren't guilty of the crimes for which they have been convicted.

diva305
Diva305  (Level: 146.6 - Posts: 1651)
Thu, 25th Jun '09 10:37 AM

Atty Tsk,
How many cases have you argued before the Supreme Court if I may ask?

collioure
Collioure  (Level: 104.7 - Posts: 9952)
Thu, 25th Jun '09 3:24 PM

Palma, it has yet to register on TSK that this guy is a recidivist who is back in jail already. Apparently he was paroled while his earlier case rose to the Supreme Court and quickly committed another crime.

TSK apparently thinks he's innocent of the first crime. I'd lay 50 to 1 his DNA matches if it is ever tried.


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