The Justice Department has lost a major case where it sought to bar efforts to determine if a convicted rapist is in fact innocent. The Obama Administration argued in United States v. Watson that Bill Watson should not be able to use a new DNA test that was not available when he was convicted of a rape in 2006. Despite dozens of cases where convicted individuals were proven innocent, the Obama Administration fought to prevent the use of this test even though the Innocence Project offered to shoulder all of the costs. The position of the Justice Department was inimical to the values of due process and the rule of law, in my view. The United States Court of Appeal for the Ninth Circuit rejected the highly technical claims that neither Watson nor the court should knew the true identity of source of key evidence found at the crime scene.

What is ironic is the President Obama just pardoned dozens of federal inmates and became the first sitting president to visit a federal prison. Yet, there is a disconnect with the public image of the Administration and what the Administration is actually doing in federal courts. In the Watson case the Administration fought to prevent evidence from being evaluated that might either confirm a conviction or prove the innocence of an individual.

The case itself came down to conflicted testimony by individuals who were drinking heavily before an alleged rape of a young girl on an Indian Reservation. The Ninth Circuit laid out the facts:

The alleged sex crime and assault occurred at a party at J.M.B.’s house. Her mother was away, and the teenaged children and their friends had obtained two bottles of rum. J.M.B., then 14 years old, got so drunk that a friend and her brother were concerned about her choking on her vomit while she slept, and gagged her to make her throw up. After she vomited, they put her to bed in the master bedroom, her mother’s room. Watson went to that bedroom.

From there, the accounts diverged. J.M.B. was unable to give an account of what happened. She testified that she did not remember anything, from when she passed out to when her brother woke her up afterwards. She did not testify to any sexual contact with anyone.

Watson testified that he went to that bedroom because he needed to defecate. He did not want to use the downstairs bathroom because he “didn’t want to smell up the bathroom that everybody would go to, and I didn’t want to be laughed at.” He had to pass through the master bedroom to get to the upstairs bathroom. He testified that he never touched the sleeping girl. When J.M.B.’s older brother asked him what he was doing in the master bedroom, he said he was “coming from the bathroom,” and the brother said “bull,” and accused him of raping his sister.

The older brother testified that he went to the room periodically to check on his sister, and caught Watson with his pants down, having sex with his unconscious sister. He testified that Watson had “his penis in [his] sister’s vagina.” Watson had his pants and underpants down, his sister’s pants and underpants down, and was “pumping back and forth.” Since J.M.B. was unconscious, Watson would have had to have pulled down her pants and underpants. When the brother walked in, Watson withdrew and was visibly “aroused.” Watson said he was sorry.

The brother and Watson agree that they got in a brief fight after the brother encountered Watson in the bedroom, and then Watson went downstairs. Watson came back with a hammer and started swinging it at the brother. The brother told the police and the doctor the next morning that Watson had hit him with the hammer, but testified at trial that the hammer never touched him. The doctor who examined him testified that “he had bruises.”

Watson left the house after the fight. The brother and a girl who was friends with the brother and with J.M.B. woke J.M.B. up. The girl brought clothes not smelling of vomit, including the mother’s underwear from the bathroom floor, to put on J.M.B. J.M.B. testified that she had never worn those underwear before, and her mother testified that the underwear belonged to her.

The medical examination of J.M.B. was inconclusive. In the exhibits submitted with the motion for DNA testing, the emergency room physician stated that J.M.B.’s hymen was not torn. She noted “no evidence of injury or laceration to the vaginal wall,” and that “[t]he hymen appears only slightly patulous.1 It is not torn. It accommodates a narrow speculum easily and the patient tolerates speculum examination really quite well.” The medical report stated that there was no injury to the vaginal walls. At trial, the physician testified that she had observed a one millimeter abrasion, four small skin tears, and bluish discoloration that might be bruising or J.M.B.’s normal skin coloration of that skin, in the perineal area.

The older brother, who was the only eyewitness to the alleged rape, was drunk himself, having consumed rum from both bottles that night and three or four beers earlier in the day. And he testified inconsistently with his prior statement to the police that Watson had hit him with a hammer.

An FBI DNA examiner testified that there was no semen on the vaginal swabs. But she found semen in the underwear J.M.B. was wearing. The FBI examiner testified that “I was not able to determine the source of the semen in these underwear, because of the extremely small amount of male contribution that was identified by DNA analysis.” She testified that she could not exclude any male from being the source of the semen, because there was not enough of it to test. All she could determine from the science then available was that the DNA she could identify in the crotch of the underwear came from two women, evidently J.M.B. and her mother. That DNA was from one or two females, not any male. The male substance was the semen, but there was not enough of it to test, in 2006, for DNA.

Bill Watson was indicted for knowingly attempting to engage in a sexual act with a person physically unable to communicate unwillingness, as well as for assault of the victim’s brother with a dangerous weapon. He was convicted of the sex crime but not the assault, and sentenced to 178 months of imprisonment to be followed by five years of supervised release.

The inability to test the small DNA samples meant that Miller could not ask for testing of the samples without the three-year limit under federal law. Many critics have charged that that limit is itself too short and that such testing should be allowed regardless of the time of the request, particularly when the costs are paid by outside groups. Nevertheless, Miller could not ask for a test that did not exist. Yet, the Justice Department argued that the request was untimely and barred as a matter of law. The Administration argued that, while the test was new, the actual evidence in the form of the clothing was not newly discovered evidence. The Ninth Circuit disagreed and concluded with a passage that should be an embarrassment for the Administration:

No tradition is more firmly established in our system of law than assuring to the greatest extent that its inevitable errors are made in favor of the guilty rather than against the innocent.25 Our legal tradition has always followed Blackstone’s principle that “it is better that ten guilty persons escape than that one innocent suffer.”26 The moral force of our criminal law requires this allocation of the risk of error, both with respect to standard of proof and to scientific testing of newly discovered evidence critical to guilt. “It is critical that the moral force of the criminal law not be diluted by a standard of proof [or, we suggest, a rejection of scientific testing] that leaves people in doubt whether innocent men are being condemned.”27 Not all share our revulsion at punishment of the innocent, of course. But Americans have always been revolted by the notion that it is better that the innocent suffer than that some of the guilty go free.

Consistent with our tradition, Congress has created a device to end the suffering of the innocent, where their innocence is scientifically demonstrable by DNA evidence, even after their convictions have become final. The most hallowed principle of our criminal law, protecting the innocent, requires us to eschew a crabbed, restricted construction of the statute. Watson moved in timely fashion for previously unperformed DNA testing, based on newly discovered evidence—the results of DNA testing not possible at the time of trial—that could well prove his actual innocence and mistaken identity. His motion should have been granted.

Here is the opinion: United States v. Miller