Thanks Thera -

I was told that while many states do have provisions, they can differ greatly in access and 'rights' of those convicted. And many use Supreme Court decisions to base the scope of their legislation.

As long as Palin is Governor we will be thwarted in any actions to rectify current status quo.

One of the statements within the decision that (to me) is irrational is the following (second paragraph): 'Modern DNA testing can provide powerful new evidence unlike anything known before. Since its first use in criminal investigations in the mid-1980s, there have been several major advances in DNA technology, culminating in STR technology. It is now often possible to determine whether a biological tissue matches a suspect with near certainty. While of course many criminal trials proceed without any forensic and scientific testing at all, there is no technology comparable to DNA testing for matching tissues when such evidence is at issue. Postconviction DNA Testing 1-2; Future of Forensic DNA Testing 13-14. DNA testing has exonerated wrongly convicted people, and has confirmed the convictions of many others.

At the same time, DNA testing alone does not always resolve a case. Where there is enough other incriminating evidence and an explanation for the DNA result, science alone cannot prove a prisoner innocent. See House v. Bell, 547 U. S. 518, 540-548 (2006). The availability of technologies not available at trial cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt. The dilemma is how to harness DNA's power to prove innocence without unnecessarily overthrowing the established system of criminal justice.

Two separate issues - is this guy getting a bad break; is this a bad precedent?

from CSM:

"The majority justices said William Osborne had adequate means to pursue his post-conviction investigation via state procedures and court rulings in Alaska. "

That looks like something very different from what some people are suggesting; States' rights and due process. Further:

"At the time of his trial, Osborne's lawyer decided not to conduct an independent and more precise DNA test."

One important reason not to do a precise test would be if there were reason to believe the client was not innocent, that the test would go against the defendant.

Here is a more detailed article: http://www.courthousenews.com/2009/06/18/No_Constitutional_Right_to_DNA_Testing_for_Convicts_Justices_Rule.htm

(Aunt Sam, search Google using the US Code references I use here for a bit of understanding. The 2-link max per blog comment get in the way of this.)

I am not a lawyer, nor do I have a degree in Constitutional Law. There are many TPM Cafe Members better suited than I, to offer up a scholarly analysis. For many years however, a primary focus of my elective reading was SCOTUS case law history, especially criminal law, and what I define as Natural Rights (not the boiler plate definition, but it's a long explanation). I don't agree with this decision, but I'm one who firmly believes that exculpatory evidence carry with it a strong assumption of admissibility, even post-conviction in a trial where the defendant felt it could negatively affect the outcome of the verdict.

Chief Justice Roberts relies heavily on the Federal appeal process being grounded in 42 U. S. C. §1983: Civil action for deprivation of rights, resultant from a State Court's actions, in which all avenues of relief within the State Court system have not been exhausted. The Respondent was in reality seeking habeas corpus relief, yet was using a 14th Amendment Equal Protection Pleading. Roberts should have left it at that, but instead plays the same game that contemporary conservatives accuse presently liberal jurists of playing; legislating from the bench with a broad brush of applicability. Charges of an activist judiciary is almost as old at The Nation itself, and has switched bipolarities many times. Thomas Jefferson felt the Federal Judiciary had grabbed a bigger slice of the triumvirate power pie than it was entitled too:

"To consider the judges as the ultimate arbiters of all constitutional questions (is) a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem (good justice is broad jurisdiction), and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."

Thomas Jefferson, letter to William C. Jarvis, September 28, 1820

Roberts is way out of line (although not jurisprudentially) with his using a differing scale of justice, based upon pre-conviction and post-conviction:

A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man. At trial, the defendant is presumed innocent and may demand that the government prove its case beyond reasonable doubt. But "[o]nce a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears." Herrera v. Collins, 506 U. S. 390, 399 (1993). "Given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty." Dumschat, supra, at 464

Justice demands that potentially exculpatory evidence be given a fair and open hearing, at any stage of criminal proceedings where they are first brought up. Much of this obscene twaddle is exploited by the right-side; often using code phrases like; "getting sprung on a technicality". Funny thing happens to "technicalities", when suddenly it's you or yours whose life, liberty and/or property is at stake: they are mysteriously transubstantiated into America's Founding Eucharist of Liberty. Just ask any of Libby's defenders in the tawdry tale of "Poor 'Lil Scooter, and The Mean 'Ole Prosecutor". There ain't no technicality, when the anvil is dropping and your name is Wiley the Coyote.

The Right has worked with tenacious diligence toward the goal of gutting criminal appellate process, especially habeas corpus pleadings. They reason that innocents have nothing to fear, other than the infrequent politically motivated leftist prosecutor targeting them unjustly, and then they shriek harpishly with paranoid visions of persecution complexities, like a stuck Nixon on tape, or an Ollie, Ollie, Toxin Flea player oozing with Reaganesque grey-matter memory lapse drips. This points directly to the largely Republican con game of the 1990's in which they stripped away federal habeas corpus appellate rights from persons incarcerated in state trial proceedings, obscenely claiming that it was necessary for the prevention of terrorist acts, as they used the victims from the Alfred P. Murrah Federal Building bombing in Oklahoma City, as their podium and pulpit.

This resulted in The Antiterrorism And Effective Death Penalty Act Of 1996 - Title I: Habeas Corpus Reform, about which Senator Ted Kennedy said:

"It is unfortunate that the unrelated and controversial subject of habeas corpus was injected into this bill in the first place. Proponents say that habeas corpus is relevant because the suspects in the Oklahoma City bombing are charged with a Federal capital offense. But that fact is no justification for changing the rules with regard to State prisoners.

The habeas corpus proposals do not strike a fair balance. The bill denies death row inmates a full opportunity to raise claims of innocence based on newly discovered evidence. It will therefore increase the likelihood that innocent people will be executed. The proposal to limit inmates to one bite at the apple is sound in principle. But surely the interest in swift executions must yield to new evidence that an innocent person is about to be put to death. As Supreme Court Justice Potter Stewart once wrote, "Swift justice demands more than just swiftness."

Also, the proposal would unwisely require Federal courts to defer to State courts on issues of Federal constitutional law. A Federal court could not grant a writ habeas corpus based on Federal constitutional claims, unless the State court's judgment was "an unreasonable application of Federal law."

It is a serious mistake to require a Federal court to defer to the judgment of a State court on matters of Federal constitutional law. The notion that a Federal court should be prevented from correcting a constitutional error because it was a reasonable error is unacceptable, especially in a capital case. Ever since the days of Chief Justice John Marshall, the Federal courts have served as the great defenders of constitutional protections, and they should remain so."

Senator Ted Kennedy, Congressional Daily Record: April 17, 1996 (Senate), Page S3458

This gutting of Habeas Corpus is now published as U. S. C. §2254: State custody; remedies in Federal courts.