Supreme Court Finds No Federal Constitutional Due Process Right to Access to DNA Evidence in Criminal Cases After Conviction

June 26, 2009 by Kish & Lietz

Last week the Supreme Court decided District Attorney’s Office for the Third Judicial District v. Osborne in favor of the District Attorney’s Office. Although this was technically a civil case, it deals with federal constitutional criminal issues. Mr. Osborne was convicted of kidnapping, assault, and sexual assault in the early 1990s. An early type of DNA testing on the main evidence against him cleared other suspects, but could not narrow the perpetrator down to less than 5% of the population. Mr. Osborne sought access to the evidence now to subject it to a newer type of DNA test that can determine whether biological evidence matches an individual with near certainty.

The Court recognized the power of DNA testing in both exonerating wrongly convicted people and confirming the convictions of others. However, the Court’s “dilemma [was] how to harness DNA’s power to prove innocence without unnecessarily overthrowing the established system of criminal justice.” In a disappointing and surprising 5-4 decision, the Court rejected Osborne’s argument for a Due Process right to DNA evidence.

An insightful analysis of the case by a staff attorney for the Innocence Project is available at this post in the American Constitution Society Blog.

Information on the flaws in the criminal justice system that lead to wrongful convictions of innocent people is available at The Innocence Project’s website, along with information on individual cases. Cases here in Georgia are handled by the Georgia Innocence Project, with information on their website. The Osborne opinion is available here.

Federal Supreme Court Decides Criminal Collateral Estoppel Issue

June 25, 2009 by Kish & Lietz

In this post last year, we discussed Yeager v. United States, a white collar federal criminal case on appeal to the Supreme Court. The case involved the prosecution wanting to re-try a defendant who had been acquitted on some counts, but the jury had remained undecided on other counts. Because those other counts relied on facts that the jury must have resolved in the defendant’s favor to acquit, the defense argued (and we agreed) that the doctrine of collateral estoppel precluded the prosecution from retrying the issue. The Supreme Court issued its opinion last week, agreeing with us.

We reviewed the facts and legal issues in Yeager in our previous post. The Fifth Circuit Court of Appeals ruled that the acquitted counts meant that the jury found that Mr. Yeager did not have insider information. To prove the hung counts, the prosecution had to show that he had possessed insider information. The Fifth Circuit held that the inconsistency between the jury’s acquittals and hung counts justified a retrial. The Supreme Court declined to review the record to determine whether the Fifth Circuit’s ruling on the fact issue was correctly decided, permitting the Fifth Circuit to revisit the issue. Instead, the Court resolved only the narrower legal question.

Justice Stevens wrote the opinion for the court. He focused on the rule in Ashe v. Swenson, a 1970 case that held that the Double Jeopardy Clause precludes the government from relitigating any issue that was necessarily decided by a jury’s acquittal in a prior trial. The government argued, as the Fifth Circuit had held, that the inconsistency between the jury’s decision in acquitting and indecision in the hung counts justified retrial, but the Supreme Court held that courts should scrutinize juries’ decisions, not failures to decide, in identifying what they necessarily determined at trial.

The Court's opinion is available here.

Black Requests Bail Pending a Decision on Federal Honest Services Fraud Case

June 2, 2009 by Kish & Lietz

As we discussed in this post, the Supreme Court of the United States agreed to hear media mogul Conrad Black’s appeal regarding whether the honest services fraud statute applies in a purely private setting where the defendant’s conduct risks no foreseeable harm to the putative victims. We are very interested in the outcome of this case because it has the potential to change the law in the Eleventh Circuit (the court that hears federal criminal appeals from Georgia, Florida, and Alabama.) Unfortunately, we will have to wait a while. The appeal will not be heard until after the beginning of the Court’s new term this fall, likely as late as November or December.

As reported over at the SCOTUS Blog, Black has requested bail during the time his appeal is pending. He has served 15 months of a 78-month prison sentence and, if bail is denied, will have served about two years before the Justices decide his case. If his conviction is reversed, those are several months he cannot get back. His lawyers also argue that he should be released from prison in the meantime because his co-defendant, John Boultbee, has been released on a $500,000 bond and allowed to return to Canada to await the Supreme Court’s decision.

You can read Black’s application here.

Federal Drug Case Decided by Supreme Court in Favor of Criminal Defense, Rationality

June 1, 2009 by Kish & Lietz

Last Tuesday, in Abuelhawa v. United States, the Supreme Court ruled that using a cell phone to make a misdemeanor purchase of drugs does not “facilitate” a felony drug distribution crime. The government charged Mr. Abuelhawa with six felony charges, one for each cell phone call, for facilitating the sale of drugs, although his two, first-time, small cocaine purchases qualified only as misdemeanors. Those charges resulted in a potential sentence of 24 years in federal prison, compared with a potential two-year sentence for two misdemeanors. Just for using a cell phone.

The government argued that Abuelhawa’s use of a phone to buy cocaine counted as “facilitation” because it made the drug dealer’s sale easier, hence violating a section of the Controlled Substances Act that makes it a felony “to use any communication facility in committing or in causing or facilitating” felony drug distribution. While at first glance, the common meaning of “facilitate” may give this impression, the result is absolutely absurd. And, as the Court points out, in any sale, the two parties have specific roles and “it would be odd to speak of one party as facilitating the conduct of the other.”

Justice Souter, in his opinion for the unanimous Court, was diplomatic in his criticism of the government’s inane argument. He called it “improbable” and “just too unlikely” because it “comes up short” and “does not follow.” The Court reasoned that the distinction Congress made in the Controlled Substances Act between distribution (a felony) and simple possession (a misdemeanor) makes it “impossible to believe that Congress intended ‘facilitating’ to cause that twelve-fold quantum leap in punishment for simple drug possessors.”

While we are still disappointed with the Court’s other criminal law decision last Tuesday, we at least take solace in that they recognized blatant government overreaching in this case.