A Disingenuous Honor

Ah, to be cited by in an opinion of the United States Supreme Court. One of the great honors, recognition that one's work, thoughts, are worthy of mention.  If it happens to a law professor, it will launch a dozen self-congratulatory posts, will be used as a shining example of the relevancy of legal scholarship and raised prominently when it's time to renegotiate the contract. Yes, quite the honor.

Unless, of course, it was mentioned to support a proposition that is contrary to its purpose, abusive of its point.  What then?

Via Adam Liptak at the New York Times:

The case, Maryland v. King, was about whether the authorities may take DNA samples from people arrested in connection with serious crimes. Justice Anthony M. Kennedy, writing for the five-justice majority, drew on a 2000 book by the founders of the Innocence Project and a newspaper columnist to explain why this was a good idea.

“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,” Justice Kennedy wrote. Then he quoted from the book, “Actual Innocence.”

I asked Peter J. Neufeld, one of its authors, how he felt about the honor.

“Not great,” he said.

The book, Actual Innocence, written by Neufeld and one of my long-time favorite journalists, Jim Dwyer, was about the testing of DNA at the behest of the defense, after an innocent person was arrested, prosecuted and convicted, to prove innocent. It was, to be gentle, an argument almost directly contrary to its use by Justice Kennedy.

The problem is that after being so "honored" by seeing the mention of your work used in a manner contrary to its very point, what do you do?  It's not like you can write a dissent, distinguishing its use in the opinion from its point as written.

Did Neufeld and Dwyer open themselves up to their writing being used against them?  After all, sometimes an argument intended for one purpose lends itself to prove a contrary proposal, and even though Kennedy's use may have conflicted with what Neufeld and Dwyer intended, that alone doesn't make it wrong.

But it was wrong here, and quite shockingly wrong.

In 2009, Justice Kennedy joined the majority opinion in a 5-to-4 decision that said prisoners had no constitutional right to DNA testing that might prove their innocence. Mr. Neufeld, who founded the Innocence Project with Barry Scheck [is it possible to write a story mentioning the Innocence Project, even one about Peter, that does not include Barry's name?], represented the prisoner on the losing end of that case, District Attorney’s Office v. Osborne.

But last week, Mr. Neufeld said, Justice Kennedy concluded that “it’s O.K. for the state to take DNA, without a warrant, from mere arrestees, who may ultimately have their charges dismissed.”

The combination of the two decisions baffled Mr. Neufeld. “That is quite a worldview,” he said of a jurisprudence that allows nonconsensual testing of people presumed innocent but denies voluntary testing to people who insist that they really are innocent.

The salutary claim about DNA collection Is that it not only convicts the guilty, but frees the innocent. Well, yes. And no. But that's a grossly generalized proposition.  Under the circumstances of Maryland v. King, there is some truth to the notion that taking DNA from an arrestee could end up proving innocence. Just not likely the innocence of the arrestee. but more likely somebody else who is already in custody for a crime where DNA evidence is available and it ends up not being his but rather the arrestee.

Of course, it can also be argued that the DNA taken from the arrestee could prove the arrestee's innocence as well, if the crime for which the person was arrested involves DNA and it doesn't match.  But then, the arrestee would be the one begging for DNA testing, or the prosecution would have reason to petition the court to allow them to test the arrestee's DNA in that specific case.

When one gets beyond the platitude, it becomes clear that if there is any justification for the intrusion into the body of an arrestee to seize DNA, it can't be justified by some amorphous claim that DNA will set the innocent free.  It's all in the details, and circumstances, and it's impossible, and quite scary, to believe that an associate justice of the Supreme Court can't figure that out.

As Liptak and Radley Balko in his HuffPo piece about this "honor" go on to note, the use of Neufeld's and Dwyer's book wasn't just disingenuous on the whole, but in its specific quotation:

Kennedy also misquoted Neufeld. In a quote from the book, Kennedy writes that Neufeld and co-author Jim Dwyer encourage "prompt testing" of DNA to prevent wrongful convictions. But Kennedy implies that the authors were advocating for prompt testing of all arrestees. They weren't. They were advocating for prompt testing of evidence collected from the crime scene. In their book, Neufeld and Dwyer take six sentences to explain this. In his quote, Kennedy hides those six sentences behind an ellipsis.

But then Justice Kennedy does it again.

Liptak points out that Kennedy's quote from the book also includes a second interesting ellipsis. After misstating what the authors meant by "prompt DNA testing," Kennedy then notes that they state such testing could "prevent the grotesque detention of ... innocent people." The original quote included the words thousands of in place of the ellipsis. Liptak writes, "Justice Kennedy apparently did not want to endorse the possibility that the criminal justice system had such widespread shortcomings."

And as Peter explained up front, "[p]art of the problem was what he called an irony."  Part of that irony is that he will forever know that he was honored by having a Supreme Court Justice rely upon him to support DNA testing. Except it will be testing of the wrong people, while the very people who need, who deserve, access to DNA testing continue to be denied an opportunity to prove their innocence. Maybe they'll build a statue of him. 


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