The Second Circuit Court of Appeals, in McKithen v. Brown (opinion by Judge Calabresi), addresses the best/worst thing to happen to criminal defendants since the advent of the jury:  DNA.  This can free the innocent man, or convict the guilty, and puts a quick end to the tedium of reasonable doubt.

The question before the court, when one removes the procedural legalisms of the Rooker-Feldman doctrine, was the extent to the United States Constitution gives a convict the right to post-conviction DNA testing to prove his onnocence.  Frank McKithen has lost in the New York State courts, and sought to vindicate his right in federal courts by way of a writ of habeas corpus.  The Circuit, in an extraordinary decision, remanded the case to Eastern District Judge John Gleeson (who’s worthy of a discussion given the exceptional fortitude and intellectual integrity he has shown as a judge) to decide.

First, a brief interlude.  The opening sentence of Judge Calabresi’s decision is really worth reading.

“Eighty-four years ago, Judge Learned Hand observed that ‘[o]ur procedure has been always haunted by the ghost of the innocent man convicted,’ but posited, optimistically, that ‘[i]t is an unreal dream.’ United States v. Garrison, 291 F. 646, 649 (S.D.N.Y. 1923). Today, with the advance of forensic DNA technology, our desire to join Learned Hand’s optimism has given way to the reality of wrongful convictions — a reality which challenges us to reaffirm our commitment to the principle that the innocent should be freed.”

Now, go back and read that opening again.  I’ll wait.

There has been a horrific trend in the federal courts to disavow any interest in actual innocence in favor of the stability of a system that functions quite efficiently, though not always effectively.  In other words, they don’t care about no stinkin’ innocence.  Keep them defendants moving.  To this end, the right of habeas corpus, notoriously suspended by President Lincoln during the Civil War, has been quietly curtailed to make sure that convicted defendants stay convicted, no matter whether they are guilty or innocent.

Then suddenly, out of nowhere, Judge Calabresi reminds of why we have a criminal justice system in the first place.  To distinguish the innocent from the guilty.  To curb the police power of the state from just tossing people in jail whenever they feel like it.  Innocence matters!  This is huge.  INNOCENCE MATTERS!

For those defendants with a DNA element to their cases, this could wreak havoc on the sacred cow of the jury system.  The efficacy of such ridiculously poor methods of proof, like eyewitness identification, are shown for the travesty they really are.  The tailored testimony of cops, hellbent on lying about the guilty, exposed for all to see.  Hah!

So here’s the next problem.  If DNA has proven Learned Hand’s naive support of the adequacy of the criminal justice system to protect the innocent from conviction to be vapid and wrong, what happens to all those men and women who are convicted in cases where DNA evidence is unavailable or plays no role?

If the system is wrong, and wrong a lot, when there is DNA to be had, how can we ignore the fact that the same proof that failed in the DNA case, like eyewitness ID, is suddenly irrefutable in the non-DNA case?  If 28% of death row inmates with DNA evidence available are ultimately proven to be innocent, would it not be reasonable to assume that 28% of all defendants are in fact wrongfully convicted? 

Why do we ignore the logic of this dilemma?  Because if we faced the harsh reality that our system is rife with flaws, we could not sleep at night.  Like children, we believe that the system works because we need to believe.

A good buddy (and astute philosopher) of mine from my morning commute to Manhattan has explained this to me in very simple terms.  He says, “It’s fine to sacrifice a few innocent people to make sure I’m safe at night, as long as it’s someone else doing the sacrificing.”  That about covers it.