Cert. Grant: Do Prisoners Have a Right to Use New Technology To Prove Their Innocence?

The Supreme Court today granted certiorari in District Attorney’s Office v. Osborne (No. 08-6, opinion below: 521 F.3d 1118 (9th Cir. 2008)). At issue is whether a prisoner convicted of rape can sue a prosecutor’s office to obtain DNA evidence for more sophisticated testing than was available at the time of the prisoner’s trial. Lurking in the background is the difficult constitutional question of whether the prisoner would be entitled to obtain his release through a federal habeas corpus petition if DNA testing proved his innocence. The Supreme Court has repeatedly dodged this issue in the past, refusing squarely to hold whether or not innocent prisoners have a constitutional right to be relieved from their punishment under the Due Process Clause. See, e.g., House v. Bell, 547 U.S. 518 (2006).

The formalists on the Court have a hard time swallowing any constitutional rights that are not spelled out in explicit detail in the text of the Constitution, but I’ve always thought that “due process,” if it is to mean anything at all, must surely include a right not to be punished if one is not guilty. I think most Americans would be shocked to learn that the state may simply ignore persuasive evidence of innocence and continue to hold a prisoner for years (or potentially even execute the prisoner) despite grave doubts as to the prisoner’s guilt. New forensics technology (especially DNA testing) will eventually force the courts to tell us once and for all whether that is indeed the state of the law.

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Seventh Circuit Week in Review

The Seventh Circuit had a busy week, with six new opinions in criminal cases. The government won all six.  I’ll provide just a brief description of each.  At the outset, though, it is interesting to note that five of the six involved gun charges.  Even in the wake of the Supreme Court’s recognition of an individual constitutional right to possess firearms in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), it still appears to be business as usual in the world of gun prosecutions.

In United States v. Whitaker (No. 08-1259), the court (per Judge Ripple) affirmed the defendant’s conviction of being a felon in possession of a firearm.  On appeal, Whitaker argued that his Fourth Amendment rights had been violated by the search of his car that turned up the incriminating firearm.  The search followed two 911 calls, in which tipsters alerted police to an altercation in a parking lot.  One of the tipsters further indicated that a man involved in the altercation was carrying a gun.  When police officers arrived on the scene, they found Whitaker and (after a search of Whitaker’s nearby parked car) the gun.  In seeking to have the gun suppressed, Whitaker relied on Florida v. J.L., 529 U.S. 266 (2000), in which the Supreme Court held that stopping an individual solely on the basis of an anonymous tip usually falls beyond the bounds of reasonableness.  However, the Seventh Circuit distinguished J.L. based primarily on the fact that the tipsters in Whitaker alterted police to an ongoing altercation; “when the police respond to an emergency as a result of a 911 call, the exigencies of the situation do not require further pre-response verification of the caller’s identity before action is taken.”

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Halloween Frights

It’s Halloween, so children have dreams of scaring adults, and adults have nightmares about other adults harming children. Lawmakers in Missouri this year have been concerned about a particular kind of harm: sexual offenses against children. They passed a state law that prohibited convicted sexual offenders from having any “Halloween-related contact with children,” and required the offenders to remain at their homes on Halloween night between the trick-or-treat hours of 5 p.m. to 10:30 p.m. unless they have “just cause” for leaving. The law did not define either “just cause” or “Halloween-related contact.” The law also required sexual offenders to turn off any porch lights and to post signs stating “no candy or treats at this residence.”

On Monday a federal judge issued an order blocking most parts of the statute as unclear, leaving in place only the provisions requiring that porch lights be extinguished and that there be a sign announcing that no candy would be given out at the offenders’ residences. Opponents of the law had argued that it was unclear; for example, did it prohibit contact between the sexual offenders and their own children on Halloween even if such contact would not be prohibited on other days? Would a convicted sexual offender have to avoid the decoration section of stores if children were there picking out their pumpkins? Opponents also argued that the law was an unfair double punishment for a crime for which a sentence had already been served.

Did the court make the right decision? I would say yes.

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