As I reviewed the Supreme Court’s ruling last week, in Maryland v. King, on the permissibility of taking DNA samples from individuals arrested under suspicion of having committed “serious” crimes, I wondered how folks at the Innocence Project would view the ruling. On one hand, the Innocence Project relies heavily on DNA evidence to exonerate death-row inmates who did not commit the crimes for which they were to have been executed. On the other hand, the Court’s prosecution-friendly ruling might not sit well with a group devoted to protecting defendants’ rights. My curiosity grew when I saw that the Innocence Project did not file an amicus curiae (3rd-party) brief in King.
Adam Liptak’s article in Monday’s Times indicates that the group’s leadership was less than thrilled with the majority opinion, or at least with Justice Kennedy’s use of a 2000 book, Actual Innocence, whose authors include Innocence Project co-founders Barry Scheck and Peter Neufeld. In particular, Neufeld and Actual Innocence co-author Jim Dwyer objected on two levels.
First, part of Justice Kennedy’s opinion defended Maryland’s use of DNA samples in a way seemingly designed to appeal to protectors of defendants’ rights: “In the interests of justice, the identification of an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned for the same offense.” For Neufeld, this claim might have been more persuasive had the Court not ruled in a 2009 case, District Attorney’s Office v. Osborne, that prisoners did not have a constitutional right to access the state’s evidence for the purpose of DNA testing that might exonerate them. So non-consensual testing, in the Court’s view, was permissible in a situation where the individual is still presumed innocent, but voluntary testing designed to support one’s actual innocence can be denied by a state without triggering a due process violation.
Second, the co-authors of Actual Innocence objected to the way in which Kennedy quoted their book. Here’s what Kennedy wrote (brackets and ellipses are the justice’s): “[P]rompt [DNA] testing … would speed up apprehension of criminals before they commit additional crimes, and prevent the grotesque detention of … innocent people.” As Liptak notes, the first ellipses span over six sentences and imply that the quoted source supports prompt DNA testing for purposes of connecting arrestees to cold cases, a position the authors had never backed, when the original passage referred instead to collecting and testing evidence from crime scenes. Moreover, the ellipses between “grotesque detention of” and “innocent people” excludes the phrase “thousands of,” which drastically downplays the amount of error that the authors believe permeates the criminal justice system. In short, the quotation misleadingly conscripts the Innocence Project in support of an opinion its founders do not back. It’s not quite as bad in a sense as the PR person who takes a review that describes a film as “a creative failure on so many levels” and turns it into a blurb that says “creative…on so many levels.” But I expect better from a Supreme Court justice.