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Court Debates Convict's Rights to DNA Re-Testing
Court News |
2009/03/04 09:33
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Justice David Souter led the charge for the ability of convicts like William Osborne of Alaska to have the right to re-test DNA evidence. "His strongest argument or his -- his basic argument is this evidence is potentially so important that the State has no valid interest in keeping [Osborne] at least from seeing it; i.e., testing it."
But other justices weren't as comfortable with that idea. Justice Antonin Scalia was the most vocal in his opposition. He suggested such a right would allow the accused to "game the system."
A concern also shared by Justice Anthony Kennedy who told Osborne's lawyer "what you are doing is setting up a game in which it would be really unwise to have the DNA test. Take your chances. You have a -- you have a built-in -- you have a -- a built-in second chance. And that's just -- that's just not sound trial strategy, counsel, and you know that."
Chief Justice John Roberts repeatedly returned to the idea that if the court were to grant the right for post-conviction DNA testing that it would then open for debate a slew of other problems.
"I'm trying to figure out what the limit of the constitutional right you're asserting is," Roberts asked. He went on to wonder if there would be re-testing rights at other stages in the trial process or even for fingerprint analysis and he questioned how long states would have to preserve DNA evidence in the name of this right.
Osborne was convicted of raping and nearing killing an Anchorage prostitute in 1993. At trial, his lawyers made the strategic decision not to seek more stringent DNA testing for fear that it would more strongly inculpate their client. Osborne is now seeking to re-test that DNA on the hope that it will lead to his freedom.
Osborne's attempts however have not also included a claim of innocence drawing the ire of a number of justices who wondered why they should confer a constitutional right on someone who doesn't even claim he is an innocent man. Today's oral arguments also drew out the fact that under Alaska law, Osborne could petition for the retesting of the DNA evidence if he does so while also claiming innocence. Something he has yet to do.
This development opens the door for the court to send the case back for further proceedings without answering the constitutional question. That potential ruling would be supported by the federal government which joined the case on behalf of Alaska.
"[T]he unusual facts of this case, which include failure to attest to actual innocence under threat of perjury, two recent confessions to the crime, and a tactical decision at trial to forego a highly discriminating....DNA test, all together make this a particularly poor candidate for recognizing a new constitutional entitlement," said Neal Katyal arguing his first case before the court as deputy solicitor general.
If the court does issue a ruling declaring a federally protected constitutional right to post-conviction DNA testing it isn't clear that it would have that much of an impact because most states already have statutes in place for such testing. Alaska is one of six states that does not guarantee that right. |
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Court Suit: Pfizer Testing on Nigerian Kids
Court News |
2009/02/02 09:57
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The 2nd Circuit reinstated two lawsuits accusing Pfizer of testing an experimental antibiotic on Nigerian children, causing the deaths of 11 children and leaving others blind, deaf, paralyzed or brain-damaged. A group of unwitting test subjects and their families filed two federal lawsuits against the world's largest pharmaceutical company, claiming Pfizer violated a customary international law prohibiting involuntary medical experimentation on humans.
The plaintiffs said Pfizer sent three physicians to Africa to give Nigerian children doses of its new antibiotic, Trovan. The doctors allegedly teamed up with Nigerian officials and recruited 200 sick children at Nigeria's Infectious Disease Hospital in Kano to receive the experimental drug.
Half of the patients were given Trovan, while the other half received Ceftriaxone, an FDA-approved antibiotic.
The plaintiffs say Pfizer knew that the results could be dangerous, as animal tests showed that the antibiotic had life-threatening side effects, including joint disease, abnormal cartilage growth, liver damage and a degenerative bone condition.
"After approximately two weeks, Pfizer allegedly concluded the experiment and left without administering follow-up care," the ruling states. "According to the appellants, the tests caused the death of 11 children, five of whom had taken Trovan and six of whom had taken the lowered dose of Ceftriaxone, and left many others blind, deaf, paralyzed, or brain-damaged."
Pfizer allegedly failed to obtain the informed consent of either the children or their parents, and "specifically failed to disclose or explain the experimental nature of the study or the serious risks involved," Judge Parker summarized.
U.S. District Judge William H. Pauley dismissed the claims for lack of subject matter jurisdiction under the Alien Tort Statute and, alternatively, on the ground that U.S. courts were not the most convenient forum.
The federal appeals court in New York reversed on a 2-1 vote, disagreeing with Pauley's conclusion that the prohibition against human experimentation can't be enforced through the Alien Tort Statute.
"The administration of drug trials without informed consent poses threats to national security by impairing our relations with other countries," Judge Parker wrote. The judge cited an Associated Press finding that the Trovan trials engendered so much distrust in the local population that they contributed to an 11-month boycott of a polio vaccination campaign in 2004.
Judge Pauley had acknowledged the international law norm, but concluded that it wasn't legally binding on the United States, because no single source or treaty had officially recognized it.
The 2nd Circuit said the courts must look to a variety of sources to determine whether an international norm is "sufficiently specific, universally accepted, and obligatory for courts to recognize a cause of action to enforce the norm."
Judge Parker said the plaintiffs made their case for such a recognized norm.
Judge Wesley dissented, saying the majority had "undertaken to define a 'firmly established' norm of international law, heretofore unrecognized by any American court or treaty obligation, on the basis of materials inadequate for the task." |
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Mass. court orders Madoff associate to testify
Court News |
2009/01/27 14:24
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| A Superior Court judge has ordered an associate of alleged Ponzi scheme mastermind Bernard Madoff to testify before Massachusetts securities regulators after he failed to appear at previous hearings. Lawyers for Robert Jaffe had argued that Secretary of State William Galvin's attorneys did not have the authority to require Jaffe to testify. Superior Court Judge Stephen Neel on Monday ruled that Jaffe must comply with the subpoena by Feb. 6. Galvin says Jaffe brought Massachusetts investors to Madoff and that those clients lost millions of dollars when his alleged $50 billion scheme collapsed. Jaffe has said he had no knowledge of Madoff's actions and he was also a victim. His attorney, Stanley Arkin, said he was considering an appeal. "We are going to evaluate today's ruling and are considering an appeal in this very important issue of fundamental law," said Jaffe spokesman Elliot Sloane. Galvin said he's eager to move ahead with the investigation of Madoff's actions in Massachusetts. He said residents who lost money identified Jaffe as a conduit to Madoff. "(Jaffe) has claimed he's a victim. If he's a victim he needs to tell us about it," Galvin said. "We know he was the person who brought investors to Mr. Madoff." |
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Judge: 2 adoptive dads belong on birth certificate
Court News |
2008/12/28 09:12
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| A same-sex couple in California has won a federal court ruling that their adopted son's Louisiana birth certificate must bear the names of both adoptive fathers. The facts are so clear that no trial is needed, U.S. District Judge Jay Zainey wrote. "What a great Christmas present for these guys!" said Kenneth D. Upton Jr. who represented Oren Adar and Mickey Ray Smith of San Diego. In his ruling Monday, Zainey said Louisiana's Office of Vital Records must give full faith and credit to the New York State court in which Adar and Smith adopted the boy, he ruled Monday. The office had refused to issue a birth certificate listing both as the boy's legal parents. Upton, reached at home Saturday evening, said he hopes to get a birth certificate in the coming week but doesn't know whether the Louisiana Attorney General's Office — which is in charge, although a state health department attorney argued the case — will decide to appeal. The attorney general's office will look into the matter next week, said Tammi Arender Herring, spokeswoman for Attorney General James "Buddy" Caldwell. Upton, of Lambda Legal Defense and Education Fund Inc. of Dallas, said it is the fourth case of its kind that he knows of. Cases in Oklahoma, Virginia and Mississippi also were decided in the parents' favor — the Mississippi case decided at trial about a month ago, he said. |
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Appeals court rejects DC missing pants case
Court News |
2008/12/18 09:17
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| An appeals court on Thursday turned down a request for a new trial from a former District of Columbia judge who sued his dry cleaners for $54 million over a lost pair of pants. The D.C. Court of Appeals rejected the request from Roy L. Pearson to overturn a 2007 ruling that denied him damages. Pearson had argued that Custom Cleaners failed to live up to its promise of "Satisfaction Guaranteed." Three appellate judges agreed Pearson failed to show the store's advertising amounted to fraud and said his argument defied logic. Pearson can still ask the entire nine-judge appellate court to review the case or appeal to the U.S. Supreme Court. Pearson did not immediately respond to an e-mail or telephone message seeking comment. Jin Chung, the dry cleaner owner, said through his lawyer that his family is "very very happy" with the decision. The family said they hope Pearson won't take any further action. The American Tort Reform Association lauded the court's move, saying the city's easily exploited consumer protection law should be reformed. The case has taken its toll on both sides. The Chungs have sold the dry cleaning shop, citing a loss of revenue and the emotional strain of defending the lawsuit. Pearson lost his job when a D.C. commission voted not to reappoint him. |
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