When the language is clear, so it truth

One of the Worst Court Rulings Ever:
[Via Dispatches from the Culture Wars]

Yesterday’s court ruling in Osborne was simply one of the most absurd and appalling rulings I have ever read. Chief Justice Roberts should be ashamed of himself. Because of his ruling, innocent men are going to die in prison or via the death penalty. It really is that simple. What is absolutely shocking about the ruling is how utterly dishonest it is. Roberts is usually a careful judge who at least can state the legal issue accurately. In this ruling, his portrayal of the facts and legal questions in the case is one dishonest statement after another. To wit:

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When it comes down to a man’s possible innocence versus the process of our courts, the process wins. At least that is the 5-4 decision of the Supreme Court. DNA testing would just be too disruptive, even if the convicted wanted to pay for it themselves.

As with almost every bad Court ruling, the arguments are so convoluted and arcane that they twist themselves into a huge Gordian Knot. Ed discusses some of the horrible reasoning.

Great Court decisions are inspiring to read. The language and clarity is usually astounding compared to bad rulings. So, when I read bad rulings, I often check out the dissents. In so many cases they have the directness and simplicity of truth. Such was the case with Plessy v. Ferguson.

What do you think? Read some of the excerpts Ed discusses from Justice Roberts decision. Here is the opening paragraph of Justice Stevens dissent (my bolding):


The State of Alaska possesses physical evidence that, if tested, will conclusively establish whether respondent William Osborne committed rape and attempted murder. If he did, justice has been served by his conviction and sentence. If not, Osborne has needlessly spent decades behind bars while the true culprit has not been brought to justice. The DNA test Osborne seeks is a simple one, its cost modest, and its results uniquely precise. Yet for reasons the State has been unable or unwilling to articulate, it refuses to allow Osborne to test the evidence at his own expense and to thereby ascertain the truth once and for all.

On two equally problematic grounds, the Court today blesses the State’s arbitrary denial of the evidence Osborne seeks. First, while acknowledging that Osborne may have a due process right to access the evidence under Alaska’s postconviction procedures, the Court concludes that Osborne has not yet availed himself of all possible avenues for relief in state court.1 As both a legal and factual matter, that conclusion is highly suspect. More troubling still, based on a fundamental mischaracterization of the right to liberty that Osborne seeks to vindicate, the Court refuses to acknowledge “in the circumstances of this case” any right to access the evidence that is grounded in the Due Process Clause itself. Because I am convinced that Osborne has a constitutional right of access to the evidence he wishes to test and that, on the facts of this case, he has made a sufficient showing of entitlement to that evidence, I would affirm the decision of the Court of Appeals.

Or this (my bolding):

While I agree that the statute is not facially deficient, the state courts’ application of §12.72.010(4) raises serious questions whether the State’s procedures are fundamentally unfair in their operation. As an initial matter, it is not clear that Alaskan courts ordinarily permit litigants to utilize the state postconviction statute to obtain new evidence in the form of DNA tests. The majority assumes that such discovery is possible based on a single, unpublished, nonprecedential decision from the Alaska Court of Appeals, see ante, at 16 (citing Patterson v. State, No. A-8814 (Mar. 8, 2006)), but the State concedes that no litigant yet has obtained evidence for such testing under the statute.

Got that. The State has a process. So Roberts says things are fine, based on a single decision with no legal weight behind it. . And Stevens notes that nobody has yet been able to use this statue to get the evidence they need. Nice law. Claim you have a process but it turns out it is one that has never been used.

After discussing the fact that Alaska could not provide any substantive reasons for denying Osborne to access the evidence and pay for the testing himself, Stevens ends one section thusly (my bolding):


This conclusion draws strength from the powerful state interests that offset the State’s purported interest in finality per se. When a person is convicted for a crime he did not commit, the true culprit escapes punishment. DNA testing may lead to his identification. See Brief for Current and Former Prosecutors as Amici Curiae 16 (noting that in more than one-third of all exonerations DNA testing identified the actual offender). Crime victims, the law enforcement profession, and society at large share a strong interest in identifying and apprehending the actual perpetrators of vicious crimes, such as the rape and attempted murder that gave rise to this case.

The arbitrariness of the State’s conduct is highlighted by comparison to the private interests it denies. It seems to me obvious that if a wrongly convicted person were to produce proof of his actual innocence, no state interest would be sufficient to justify his continued punitive detention. If such proof can be readily obtained without imposing a significant burden on the State, a refusal to provide access to such evidence is wholly unjustified.

In sum, an individual’s interest in his physical liberty is one of constitutional significance. That interest would be vindicated by providing postconviction access to DNA evidence, as would the State’s interest in ensuring that it punishes the true perpetrator of a crime. In this case, the State has suggested no countervailing interest that justifies its refusal to allow Osborne to test the evidence in its possession and has not provided any other nonarbitrary explanation for its conduct. Consequently, I am left to conclude that the State’s failure to provide Osborne access to the evidence constitutes arbitrary action that offends basic principles of due process. On that basis, I would affirm the judgment of the Ninth Circuit.


Justice Souter wrote a separate dissent. While agreeing with the main part of the Steven’s dissent, he wrote this (my bolding):

Osborne’s objection here is not only to the content of the State’s terms and conditions, but also to the adequacy of Alaska’s official machinery in applying them, and there is no reason to defer consideration of this due process claim: given the conditions Alaska has placed on the right it recognizes, the due process guarantee requires the State to provide an effective procedure for proving entitlement to relief under that scheme, Evitts, 469 U. S., at 393, and the State has failed. On this issue, Osborne is entitled to relief. Alaska has presented no good reasons even on its own terms for denying Osborne the access to the evidence he seeks, and the inexplicable failure of the State to provide an effective procedure is enough to show a need for a §1983 remedy, and relief in this case. Justice Stevens deals with this failure in Part I of his dissent, which I join, and I emphasize only two points here.


And he ends with this:

Standing alone, the inadequacy of each of the State’s reasons for denying Osborne access to the DNA evidence he seeks would not make out a due process violation.4 But taken as a whole the record convinces me that, while Alaska has created an entitlement of access to DNA evidence under conditions that are facially reasonable, the State has demonstrated a combination of inattentiveness and intransigence in applying those conditions that add up to procedural unfairness that violates the Due Process Clause.

When dissents are clear and assents are convoluted, you can usually tell which side has truth and true justice on their side.The more lawyerly the writing, the less likely it represents a just decision.

This is why the Declaration of Independence and Constitution are so readable. Truth is not usually hard to understand. Whenever you read impenetrable legal prose, there is usually a reason they do not want you to understand.

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