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Archive for June, 2009

The State of Alaska and the Prosecutor Are to Blame in DNA/Supreme Court Case

By Ross Parker

The greater majority of Americans long assumed that the criminal court system worked just fine. With criminal defendants afforded substantive Constitutional rights, many people assumed the nation’s prison held no innocent men or women.

This blithe assumption was upset in recent times by the use of DNA technology in post-conviction settings, which scientifically demonstrated that the innocent do indeed – even if only rarely– get convicted in this country.

Not only has the infallibility of the jury system suffered a blow by this development, but whole categories of evidence upon which we prosecutors relied upon like confessions and eyewitness identifications, which were utilized in over 75% of the wrongful convictions, have been called into question and become the targets of “reform” movements.

Last week the Supreme Court ruled in the 5-4 Osborne decision that an Alaska inmate did not have the right under the Due Process Clause, in the context of a Section 1983 civil rights suit, to have access, at his own expense, to semen evidence from his rape trial for DNA testing.

Although the Court recognized the “unparalleled ability” of DNA to exonerate the wrongfully convicted and identify the guilty, the majority held that the power to establish rules to regulate the use of this investigative resource belongs primarily to the state legislatures. Since Alaska’s post-conviction relief procedures were not fundamentally unfair, the federal courts could not upset procedures which disallowed “freestanding” discovery rights.

The majority relied on principles such as federalism, comity, finality and states’ rights, to reject the broad-based due process right of access to evidence for testing purposes advocated by Justice Stevens’ four-member minority.

Read by a career legal technician, particularly an ex-prosecutor, the majority opinion seems to rely on sound, time-honored legal reasoning. It is, moreover, as pointed out by Attorney General Eric Holder, both limited in scope and unlikely to foreclose the DNA testing examinations being conducted by the tens of thousands in the state and federal crime laboratories.

However, now that we must acknowledge that there are factually innocent people in prison and that there is an inexpensive and uniquely definitive test to exonerate them, as well as confirm the rightness of the imprisonment of the guilty, principles such as finality and comity seem rather underwhelming. One wonders whether the moral credibility of the nation’s criminal justice system would not benefit from the

Supreme Court stating, for the first time, that there is a fundamental right to be released from punishment upon proof of actual innocence.

Whatever your doubts about the balance struck by the Supreme Court in Osborne, the real target for moral criticism in this case ought to be the State of Alaska and its Prosecutors. In addition to having no law on DNA testing, the state has apparently never authorized a post-conviction DNA test, either at the instance of the prosecution or as a result of a court’s order.

What was the Prosecutor thinking? Instead of consenting to a simple test and settling the defendant’s culpability once and for all, they chose to spend thousands of hours of litigation, undoubtedly hundreds of thousands of dollars, and years of time litigating an issue without articulating a single reason justifying these extraordinary expenditures. Why do it? Apparently because they can.

Prosecution policy-making like this weakens our system of justice and encourages “reforms” which complicate and impede law enforcement’s search for the truth.

FBI Dir. Robert Mueller Debates Pot Issue on the Hill

FBI May Have Been a Little Too Deep Into Investigating the Real Deep Throat

It’s hard to believe in 1972 the FBI had nothing better to do. Then again, this must havedeep-throat been a coveted assignment.

By MATT SEDENSKY
Associated Press
MIAMI — Newly released FBI files show agents across the country and at the highest level of the agency investigated “Deep Throat” — the 1972 porn movie, not the shadowy Watergate figure — in a vain attempt to roll back a shift toward a more permissive culture.

The documents released to The Associated Press show the extent of agents’ investigation into the film: seizing copies of the movie, having negatives analyzed in labs and interviewing everyone from actors and producers to messengers who delivered reels to theaters.

All of it was a failed attempt to stop the spread of a movie that some saw as the victory of a cultural and sexual revolution and others saw as simply decadent.

For Full Story

Richard C. Powers to Head FBI’s Houston Division

By Allan Lengel
ticklethewire.com
WASHINGTON — Richard C. Powers, a 19-year veteran of the FBI, and a former state prosecutor, will head up the bureau’s Houston Division

Powers, who last served as assistant director of the Office of Congressional Affairs at FBI headquarters, replaces Andrew Bland, who retired, the FBI announced on Wednesday.
Powers entered the FBI in 1991 and worked in different offices including headquarters in 1996 where he was assigned to the Criminal Division’s Organized Crime/Drug Section.

From 1998 to 2004, he was assigned to the Houston office where he held jobs that included being detailed to the DEA to supervise a multi-agency major case squad; supervise a FBI-sponsored violent crime task force and work as a supervisory senior resident agent of the Texas City Resident Agency.

He eventually became a assistant special agent in charge in Houston in 2002. He returned to headquarters and later became special agent in charge of the Denver office. He then returned again to headquarters, the FBI said.

Before joining the FBI, he was a Chicago area cop, a state prosecutor and a civil litigation attorney, the FBI said.

FBI Files: Watergate’s Howard Hunt Sought Pres. Pardon Based on “Executive Authorization”

Howard Hunt/msnbc photo

Howard Hunt/msnbc photo

The great thing is that decades later the released FBI files still provide information to help fill in some of the blanks in history.

By The Associated Press
Watergate break-in planner E. Howard Hunt sought a presidential pardon by saying he thought the infamous burglary had “executive authorization,” according to FBI documents released two years after his death. He died without getting a pardon.

The FBI released 167 pages of Hunt’s files following a Freedom of Information Act request by The Associated Press. Wednesday marks 37 years since police caught the burglars in the Washington break-in. The case ultimately made Hunt a household name and led to the resignation of President Richard Nixon.

Despite working as a CIA agent for more than two decades and his role in Watergate, Hunt’s file is remarkably thin. As a CIA agent Hunt was involved in a U.S.-backed coup in Guatemala in 1954 and the botched Bay of Pigs attempt to overthrow Fidel Castro. He worked in China, Mexico, Japan and Spain, among other places.

For Full Story

Atty. Gen. Holder Says DNA Evidence Can Free the Wrongfully Charged: Disagrees with Supreme Crt. Ruling

The Supreme Court decision seemed to fly in the face of logic. Why wouldn’t an inmate be entitled to a scientific test to assure that everything was done beyond a reasonable doubt? Even if it frees 1 in 1,000 inmates or 1 in 10,000, that should be reason enough to give inmates the right to the tests. No one should serve time for a crime they didn’t commit. It’s not a conservative or liberal issue.  It’s called Justice!

A.G. Eric Holder

A.G. Eric Holder

By The BLT: The Blog of LegalTimes
WASHINGTON — A day after the Supreme Court ruled defendants have no constitutional right to a review of DNA evidence in post-conviction proceedings, Attorney General Eric Holder Jr. underscored the Justice Department position that seeks to expand access to DNA evidence in the courts.

Addressing the 34th Annual D.C. Courts’ Judicial Conference today in Washington, Holder, the keynote speaker, spoke about the impact of technological advances on the administration of justice, and he vowed the Justice Department will embrace science and technology.

Law enforcement, Holder told the audience, which was brimming with local and federal judges, is placing “more emphasis on DNA evidence than ever before” in the investigation and prosecution of criminal cases.

“And we are mindful that DNA evidence can be used to exonerate those who are wrongfully charged,” Holder said today. “Our mission at the Justice Department is not simply to win cases. It is to do justice, and science and DNA can help us accomplish this.”

For Full Story

Throw Them to the Dogs: Couple Pleads Guilty to Selling Tainted Pet Food That May Have Killed Thousands of Cats and Dogs

dog-foodThere’s little sympathy for people who harm dogs and cats. And clearly, some people believe this couple is deserving of nothing more than dog or cat food.

By Heather Hollingsworth
Associated Press

KANSAS CITY, Mo. — A Las Vegas-based company and its owners have pleaded guilty to distributing a tainted ingredient used to make pet food that killed potentially thousands of dogs and cats.

Sally Qing Miller, 43, and her husband, Stephen S. Miller, 56, along with their company, Chemnutra Inc., pleaded guilty Tuesday to one count of selling adulterated food and one count of selling misbranded food, both misdemeanors.

They initially were charged with 13 counts of introduction of adulterated food into interstate commerce, 13 counts of introduction of misbranded food into interstate commerce and one felony count of conspiracy to commit wire fraud.

The charges were contained in a February 2008 federal indictment that alleged the Millers and ChemNutra, along with two Chinese companies, brought wheat gluten tainted with the chemical melamine into the U.S. It was then sold to pet-food makers, and thousands of cats and dogs reportedly became sickened or died.

For Full Story

OTHER STORIES OF INTEREST

Sen. Roland Burris Dodges Bullet: State Prosecutor Won’t File Perjury Charges

Well, he dodged one bullet. But will he remain in the Senate? Who knows. This guy has had a rocky road to Capitol Hill.

By Lynn Sweet
Sen. Roland Burris/official photo

Sen. Roland Burris/official photo

Chicago Sun-Times
Roland Burris will not be charged with perjury, Downstate prosecutor says
Sangamon County State’s Attorney John Schmidt declined to press perjury charges against U.S. Sen. Roland Burris (D-Ill.) stemming from allegations he misled a legislative panel about the circumstances behind his appointment.

Schmidt said that while Burris’ answers to the House committee probing former Gov. Blagojevich’s impeachment were “incomplete,” and vague, that did not rise to the level of a crime.

“Based upon our review of the facts and the applicable law, there is insufficient evidence to charge Senator Roland Burris with perjury,” Schmidt wrote in a letter to House Speaker Michael Madigan (D-Chicago), whose office encouraged the probe.

For Full Story