That's not enough at the post-conviction stage -- that trial is over, the convicted felon must now affirmatively prove his innocence to gain relief.

That is kind of hard when people are blocking access to that evidence.

And yes, this guy is a dirtbag, but there is much wider implications than just 1 dirtbag here. You obviously know this, but keep harping on the dirtbag nature of the guy who brought the case.

The cost, by the way, is the cost of defendants gaming the system to have two bites of the apple. In the first trial, the defendant offers no evidence and disputes the prosecution's case in order to raise reasonable doubts. If the defendant loses, then he would seek to find and admit evidence that he could have brought in the first trial.

So what, if the person is innocent, then where is the problem? If they aren't where is the problem? The only problem is in false negatives which are generally quite low to begin with.

YAJ,

The reasoning that when, where, how, etc. a convicted felon can appeal based on DNA is best left to the legislature is by no means unreasonable.

The problem is that politicians are not at all above throwing people under the bus to advance their careers. So a few innocnet people rot in jail so Congressmen/State Representative/Senator Whosit can further his career as a "tough on crime" pol is not at all unheard of. Especially when we have a method that where the science is indisputable and the results can often be highly accurate. Quite different, IMO, than laws for when to use deadly force.

This is, alas, consistent with prior law, which made evidence of “actual innocence” surprisingly unimportant post-conviction

Having worked as a student, helping lawyers gather evidence of innocence, I think this is a bit of an exaggeration. The burden to present new evidence of innocence is high. What typically is uncovered is evidence that should have been considered by the jury and might have raised reasonable doubts. That's not enough at the post-conviction stage -- that trial is over, the convicted felon must now affirmatively prove his innocence to gain relief.

This particular case involved a guy who presented no new evidence of innocence, but speculated that he might find some with access to the DNA material. Apparently many states and the federal government have a process of allowing just that, but the rules hinge on timeliness of the request, whether the scientific technology was available at the time of the trial, and whether the previous lack of DNA testing appears to have been strategic. Alaska and two other states appear to be unique in not having a specific process, but these issues were resolved through more general procedural avenues.

The cost, by the way, is the cost of defendants gaming the system to have two bites of the apple. In the first trial, the defendant offers no evidence and disputes the prosecution's case in order to raise reasonable doubts. If the defendant loses, then he would seek to find and admit evidence that he could have brought in the first trial.

I would think that keeping an innocent person incarcerated for a number of years,

Perhaps I wasn't very clear. I'm saying that may be the percpetion on the part of the government, not that I agreed with it.

In fact I'd note that the convict was offering to pay for the DNA test on his own. The court ruled EVEN IF THE CONVICT IS PAYING FOR IT, he has no right to the test. Therefore cost clearly is an excuse.

Well, likely so. I doubt the DNA testing itself was the only cost consideration, though. The court costs, the cost of making the court system bigger to handle the load of the increased appeal load, and of course the cost of wrongful improsonment suits all end up in the field of vision of procecutors.

Again, I don't agree with the perception, but I do understand what drives the reaction.

I think this set of convicts is very different from those who were convicted when the testing wasn't available or so cost prohibitive that it wasn't worth using in certain cases where other evidence seemed overwhelming.

I do think though, at some point it does have to end. In a case where one DNA test inicates guilt, I am not convinced they should keep testing the DNA with newer tests-especially when other evidence indicates guilt.

I also think YAJ makes a good point. When, where and how a convict should have access to DNA is a legislative issue-it is policy, and it does make sense that this stuff be decided at that level.

So I guess I can see both sides on this one.

As for the SC ruling, yeah I would try to look at the cost vs. benefit. DNA testing isn't infallible, and the cost is significant. And yet jailing innocent people is something I feel that is very, very bad. I tend to agree with the old adage, "it's better to let 10 guilty people go than hold 1 innocent person."

What an interesting time to suddenly find one’s federalist views.

Given that the 5 Justice majority is Roberts, Scalia, Alito, Thomas and Kennedy, it isn't like this is the first time they have ever heard of the federalist argument. The reasoning that when, where, how, etc. a convicted felon can appeal based on DNA is best left to the legislature is by no means unreasonable.

The argument that this would create a patchwork of justice indicates a total lack of familiarity with the US justice system. As an example, when are you allowed to use deadly force. Surprise, we have a 'patchwork' of answers as different legislatures (and unfortunately some courts) have come up with different answers. Does that mean that because the same fact case would produce different results we don't have justice? No. It indicates that in the policy debates, different legislatures have come down at different points on the issue.

Try reposting this where you remove all policy making arguments and see what you have left. The courts aren't supposed to make policy nor the fine fiddly details. You may not like the result, but this is the proper ruling.

He confessed to being at the scene of the crime, but blamed his friend for the rape and assault, didn't report the crime, was identified in a line-up, was connected with physical evidence to the crime, including DNA testing which indicated that he, not his friend, left sperm in the condom. The convict wants more exact DNA testing, now that he has nothing to lose.

DNA testing should accomplish this. When it comes back positive, the circus should end.

Steve

That isn't nearly as bad a reading...problem is that there are people in jail where DNA is available and testing was not available at the time of their trial. Where do these people fall, especially if they are asking for the test? I can imagine a guilty person not wanting to give that kind of evidence, but an innocent person?

And before you say, "Oh, yeah allow testing." Keep in mind that prosecutors routinely engage in all sorts of behavior to prevent such tests. Even when there are laws indicating otherwise.

if a defense lawyer fails to seek DNA testing during trial, and does so for tactical reasons, there is no constitutional right to seek access following conviction.

Once a person is convicted, and his appeals are exhausted, he is a felon. He has no presumption of innocence. The burden on the convicted felon to reopen the case and sift the evidence is high. He needs to show that new evidence exists that wasn't available at the time of the trial. If you don't do that, the trial never ends. Never.

This is disturbing when the issue appears to come down to the lawyer's strategy, but I suspect many defense lawyers will advise their client not to participate in DNA testing as a matter of course.

Do we have statistical false negative rate on DNA testing?

A quick google pulls up results ranging from 0.001% to 0.01%. I'd say this is hardly a worthy talking point.

Depends on the DNA. If the DNA sample is good then the test should have a very low probability of error, although it could still happen. And we can't rule out human error (mixing up samples for instance).

What you've completely ignored is that DNA tests are not infallible. If you create a "Constitutional Right" for 100,000 guilty people to get DNA testing to "prove" they're "innocent", some of the tests will, falsely come back saying they are innocent.

Yes, but this is true of all evidence, and I'd wager that DNA evidence has a lower false negative rate than say eye witness testimony. The thing with DNA evidence though is that it isn't going to nearly as subjective as say memory.

You want to argue that the false imprisonment rate will be significantly greater than the false negative rate, you're welcome to make that claim. But completely ignoring it makes you really not worth listening to.

By this logic we shouldn't listen to the Supremes either, aside from the fact that a few politicians gave them such authority. We have a group of nine procedurally obsessive complusives who seem to have an unhealthy aversion to empirical evidence.

A quick google pulls up results ranging from 0.001% to 0.01%. I'd say this is hardly a worthy talking point.