Oh, and here’s what the court says about Dinkins’ expert who says new testing should be granted:
In other words, much better testing is now available, but the defendant is still fucked because an early form of the same testing was available then, and maybe it could have produced the same results as he’s seeking now. Blissful ignorance wins again.
Quite true, at least in the jurisdictions I’m familiar with. Once again, the conviction trumps actual innocence, so we don’t care what the evidence now shows. Also, good luck with an ineffective assistance claim. They virtually never go anywhere even when the attorney’s performance was truly atrocious.
But the problem with the alternative is that it effectively makes the trial go on forever. Every time you think of a new argument, you would effectively be granted a new trial. There would be no end.
As mentioned previously, there have to be some compromises accepted in the name of allowing the system to function at all. There may be an occasional wrong verdict, but they appear to be extremely rare. (And this is certainly not the same as your sweeping claims that we “don’t care” about actual innocence.)
No, the trial doesn’t go on forever that way. I’m talking about the same post-conviction proceedings that already occur (primarily habeas corpus proceedings), but without the procedural impediments to collection and consideration of new evidence that now prevent many actual innocence claims from being effectively investigated and presented.
After all, what’s the problem with giving the three guys in the cases above the DNA evidence they request? If it comes back with nothing new or further damning, the courts will have no problem concluding their innocence claim is without merit. If it comes back somewhat inconsistent with guilt, the court can consider that along with all the rest of the evidence of actual innocence–and there will still probably be plenty to keep the guy on death row. But no matter what the result is, it’s something the court should be able to consider in order to render the fairest decision possible.
Justice is not served by procedural barriers that promote ignorance.
Yes, and if we’re lucky, the wrong verdicts will become even more rare as we continue to stop evidence from coming to light that might overturn them.
In In re Fain, 83 S.W.3d 885, the defendant’s motion for DNA testing was denied because he had the opportunity to have DNA testing done at the trial level, and chose not to. There were statements from the defense counsel that they chose, as a matter of trial technique, to have ALL the evidence tested, they used some of the evidence tested for DNA to establish there was none linking him to the crime. So, after conviction, he was foreclosed from having more DNA tests done on the other stuff because he could have had it done at trial. I don’t have a problem with that, either. If he could’ve had DNA testing at trial and chose not too, there is no injustice in not allowing him to do it after he is convicted.
And I disagree with your assertion that once any kind of blood tests are conducted on materials, the defendant is foreclosed from having better DNA tests done. And, once again, the caselaw doesn’t support your position.
And, just for you:
Punch: Gee, Judy. If we don’t allow everyone who wants it to have DNA testing, regardless of how relevant or probative it is, we don’t give a shit about the truth. Nobody gets to raise actual innocence on appeal, and the Judges and Prosecutors are trying to keep the truth from getting out.
Judy: Wow, that sucks, if it were true. Maybe we can move into minty’s world where it goes on all the time.
Punch: Don’t worry Judy. Once a person is convicted, those convictions NEVER get overturned.
I don’t think you can look at this procedure in a vacuum if it is consistent with standards that apply for other evidence, as you acknowledge.
From what I’ve read it is common for lawyers to have to make decisions on what evidence to introduce and what evidence to leave out at the trial. Same for witnesses. Under your proposed standard, every lawyer facing such a decision can safely leave it out. Client gets convicted? No problem - go back to court presenting the omitted evidence and give it another shot. Still no go? Try another piece of omitted evidence.
I don’t know how much time this would add to the appeal process - which is far to long already, BTW. But it would certainly strain the court system, and perhaps more significantly, render the actual trial less significant. Someone earlier suggested that perhaps we should have a number of trials for each crime - if the defendant is found innocent at any of these he gets off. What you are proposing seems somewhat along these lines.
No procedural bars to DNA testing? Is that what you are advocating, minty? The fact that a defendant actually has to show that the evidence to be tested should have a reasonable probability to prove innocence is asking too much? If that’s your argument, I don’t have much else to say.
Actually, maybe I do have more to say:
If that is your feeling minty, fine. You are, of course, entitled to your opinion, and damn the consequences to the criminal justice system.
But don’t ever spew the shit you, Dio, and eris are about prosecutors and appellate judges not caring about the truth. Or that they are hiding the truth. Or that they are afraid of finding out the truth. Or that they don’t care if innocent people have been convicted. Or they’re happily ignorant.
It’s bullshit. You know it. And I’ll keep calling you on it.
Sure. And in one sense, that’s fair – it prevents the accused form getting a second bite at the apple.
But suppose, (he says, hijacking back to my complaints about Strickland) the choice to forgo DNA testing was made as the result of simple foolishness. Suppose that, although in the abstract it was a reasonable trial strategy, that at this particular trial, it was a foolish omission?
On appeal, you deny any additional DNA tests, under tha rationale that they were waived at trial. OK, sez I, then I’ll raise ineffective assistance of counsel.
What burden must I sustain to win that? (1) That the performance fell below some objective, measurable standard; and (2) that but for the failure, the results might have been different. Classic Strickland, yes?
But you see the bind I’m in. Even if the appellate court doesn’t dismiss my claim on the first prong, I have no frickin’ way to show the second prong without the DNA tests. I cannot merely speculate that the DNA results would be exculpatory, since a mere conclusory allegation is insufficient to win the second Strickland prong. And I can’t get the test because it was procedurally waived, so I’m stuck in a classic Catch-22: I can’t show counsel was ineffective because he waived the trial issue, and I can’t raise the test issue on appeal because counsel was ineffective!
I am confortable accepting that level of risk in non-capital cases, because we can rectify a mistake. But I am absolutely uncomfortable accepting this sort of paradox when a person’s life is at stake.
Bricker, is that case real or a hypothetical. It does indeed sound like a raw deal for the defendant, and, in my experience, appellate courts don’t like that much more than you and I. I’d be interested to see if that really happened.
Hamlet, from now on you have to prove to us that the cases you are going to cite have relevence to the discussion before you can have access to the cases.
Perhaps you missed it above where I said “My position is that access and testing should be granted if it is capable of revealing any probative evidence of innocence, and that includes poking holes in the prosecution’s theory of the case. That doesn’t get you a new trial, of course, but it at least allows the convicted person an opportunity to investigate and present all the evidence that could be capable of demonstrating actual innocence.” That’s it. Show that testing requested is possible and that it is capable of revealing probative evidence that tends to show innocence, and you get the testing. Then the state can kill 'em. Not before.
Also:
It is not. And I’ll keep saying it. When they prevent post-conviction investigation and analysis of the evidence in the hands of the state–and they routinely oppose and prevent investigation and analysis of such evidence–they do it because they don’t care what the results would show. They’re convinced the accused is guilty and, to them, that’s the end of the story. That’s the very picture of willful ignorance.
And what the fuck does Ronnie James Dio have to do with any of this, anyway? 
Well, at least we’ve reached a somewhat resolution.
**
They do it because they are upholding the statutes that the Texas (and any other State) have enacted. That whole damn oath thing they took, you know. They’re doing it because, after a fair trial, the defendant was convicted. They’re doing it because those convictions have been upheld by appellate courts. They’re doing it to preserve the integrity of the trial court. They’re doing it, yes, because the guy is guilty. They’re doing it to avoid the time and expenditure of resources to convince certain people that the defendant is 99.9% guilty instead of 99% guilty. They’re doing it to keep killers and rapists in prison. There are so many reasons why they are doing it, other than that they wish to remain ignorant. They aren’t ignorant. They’ve looked at all of the facts of the case, and they think it would be a great injustice that the defendant be released from prison. Whatever “exculpatory” evidence that might possibly be found as a result of the tests, has no bearing on the defendant’s guilt or innocence.
If you had one case that you could find to support your assertion, then, maybe you’d be on your way to convincing me. But until then, your willingness to malign prosecutors and judges with bullshit accusations, your misstatement of facts, and your gross generalizations has left me seriously doubting your credibility.
The facts I just spit out were hypos.
But the reasoning in not at all inconsistent with hundreds of Strickland-based appeals I have seen and worked. Admittedly, not one was a capital case.
It wouldn’t surprise me to find a close match on the facts that really did happen, but even leaving it as a hypothetical – is your suggestion that because the appellate court wouldn’t like it, they’d order testing, contrary to the plain language of the statute?
I have one. You’ll have to pardon me if I decline to talk about it.
This is what strikes me as gamesmanship trumping empiricism.
I have to call sophistry on this one, Ham. Every one of those inmates who has been exonerated by DNA was “guilty” by the legal definition.
Isn’t it worth eliminating that one percent of doubt when we are, in fact, going to kill somebody?
There are so many reasons why they are doing it, other than that they wish to remain ignorant. They aren’t ignorant. They’ve looked at all of the facts of the case, and they think it would be a great injustice that the defendant be released from prison.
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I assume that every prosecutor who has had a conviction overturned by subsequent DNA testing had also looked at all the facts, and also thought that it would be an “injustice” to let the defendant go free.
How can exculpatory evidence not have bearing on innocence? This sounds like a logical contradiction to me.
Pssst… Diogenes… “Exculpatory” is in inverted commas to indicate irony, since the evidence characterized as exculpatory in these cases is so obviously not.
Anyone with the meanest ability to apply reason to a problem should be able to that further DNA testing in the cases cited wouldn’t effect the determination of guilt – so what, exactly, would be served by allowing it?
Cripes.
While I disagree with Hamlet, (I assume,) on the subject of whether or not capital punishment has a place in a civilized justice system, he’s clearly on the right side of this profoundly stupid argument.
If you want to argue against the death penalty, you couldn’t pick a less effective way to do it. It creates the appearance that people who oppose it are morons.
I apologize if that’s not the argument you’re trying to make, (along with Minty etc.) It’s not really clear what you’re trying to prove.
That the appeals process should be expanded to include any new evidence, regardless of its role (or lack of it) in convicting the appellate?
What?
I am still not against the death penalty. Never have been and probably never will be.
Larry, we have not been talking about the appellate process. We have been talking about the habeas corpus process, in which it is well established that new evidence may indeed be presented in support of the convicted person’s claim of actual innocence. In fact, one of the main purposes of habeas corpus is to go beyond the mere questions of whether the defendant received a legally correct trial.
And yes, the convicted person in a habeas proceeding may indeed present “any new evidence” that tends to establish his innocence, “regardless of its role (or lack of it) in convicting” the defendant. The burdens on the convicted person are steep, but habeas corpus is an essential,l constitutionally protected part of our system of justice.