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Freedom Watch
The US Supreme Court's June 18 decision denying prisoners access to DNA testing — a procedure that could reliably prove innocence — adds to the high court's decades-long shameful record on criminal-justice issues.

The US Supreme Court's June 18 decision denying prisoners access to DNA testing — a procedure that could reliably prove innocence — adds to the high court's decades-long shameful record on criminal-justice issues. Essentially choosing closure over accuracy, the five-justice conservative majority disregarded the hundreds of cases in which DNA evidence led to exoneration, and will now let states proceed as they wish.

The bad news for Bay Staters: along with Alabama, Alaska, and Oklahoma, Massachusetts remains one of only four states that do not assure access to DNA evidence to convicted prisoners. Thus, a wrongfully convicted Massachusetts resident could find him or herself in much the same situation as Alaska inmate William Osborne, the defendant whose DNA-testing requests were denied in this baffling decision.

Osborne had been sentenced by Alaska to 26 years for kidnapping, raping, and shooting a prostitute in Anchorage in 1993. Almost a decade after his conviction, he sought a new type of DNA test — one far more advanced than those available in 1993 — to determine his guilt or innocence.

When Alaskan authorities thwarted this modest request — Osborne, with the Innocence Project's assistance, was prepared to pay all costs — he sought federal court intervention on the theory that surely the US Constitution's "due process of law" clause would assure access to the crime-scene bodily-fluid samples from his own trial. Chief Justice John Roberts, writing for the majority, disagreed: Alaska's supposed interest in the finality of the verdict was more important than its accuracy.

The four dissenting justices — the high court's liberal wing — decried Alaska's obduracy. Justice John Paul Stevens wrote that "for reasons the state has been unable or unwilling to articulate, it refuses to allow Osborne to test the evidence at his own expense and to thereby ascertain the truth once and for all."

This battle between finality and justice is hardly new, recently having divided Massachusetts judges. During the child-sex-abuse panic of the 1980s, three members of the family-run Fells Acres day-care center in Malden were convicted of child rape and sentenced to long prison terms. Lower court judges began to assess emerging new evidence that the trials were grossly unfair and that the crimes never even took place; for instance, it was revealed that the children's testimony was the product of suggestive-interrogation techniques by police and social workers. Yet successive efforts (in 1993, 1997, and 1999) by three different Superior Court judges to release members of the Amirault family were reversed by the Supreme Judicial Court. At one point, the state's famously liberal high court countered by announcing the primacy of "finality," supposedly (and ironically) in order to foster public confidence in the criminal-justice system!

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Freedom Watch
"Standing up to your political enemies is easy, fun, and often profitable," writes Barney Frank, on the lead jacket blurb for Worst Instincts: Cowardice, Conformity, and the ACLU.

TRUTH TO POWER: Kaminer went public with complaints most ACLU members kept to themselves.

"Standing up to your political enemies is easy, fun, and often profitable," writes Barney Frank, on the lead jacket blurb for Worst Instincts: Cowardice, Conformity, and the ACLU, Boston-based civil-liberties attorney and social critic Wendy Kaminer's firsthand account of the corruption that, since shortly after 9/11, has infected the highest levels of the American Civil Liberties Union (ACLU). "Taking public issue with your friends and allies on a matter of great principle is none of these, but it is a far more important service to others."

I've known both Frank and Kaminer since the start of their careers and the early days of my own, and I take pride in sharing with them a willingness to speak truth to power regardless of whose ox is gored. But after reading Worst Instincts (Beacon Press, 160 pages, $24.95), and Frank's blurb, I've concluded that I haven't been holding up my end. As an ACLU member since the 1960s who has served on the board of directors of the semi-autonomous Massachusetts state affiliate (ACLUM) for some three decades, I've been airing, in house, grievances against the ugly things that Kaminer, a former ACLU Massachusetts representative and an ACLUM board member like myself, took public.

Those missteps, taken by ACLU executive director Anthony Romero, are legion. Beginning when Romero took over, less than one week before 9/11, the organization drifted away from its viewpoint-neutral approach to protecting liberty. Leadership grew disdainful of internal dissent and started covering up its own errors. Ironically, it sought to restrict the dissenting speech of its board members. These fundamental flaws emerged, as Kaminer and I (among others) saw, when perhaps the ACLU was needed most — the early days of the "war on terror."

In 2003, when the New York attorney general's office accused the ACLU of violating the privacy of those who purchased items through its Web site — the same privacy rights that the ACLU insisted other organizations protect — Romero hid it from the national board. Later, in order to qualify the organization for contributions by federal employees, he agreed to consult a federal terrorist watch list before hiring anyone. When he was caught, Romero twisted and turned and covered up an action that was clearly in violation of long-standing ACLU policy against blacklists.

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