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
The Court got it right about timeliness. Due process cannot be satisfied when the accused is not aware that the clock is ticking. The discovery of that new test set the clock back to zero. All ten requirements of the statute are satisfied if you read “new DNA evidence” as the sudden appearance of a totally new way to test for material DNA evidence that was not even available at the time of conviction.
“Jill
1, July 17, 2015 at 10:24 am
I have never understood why any “justice” dept. or prosecutor just wants to convict someone whether they are guilty or not. ”
Because promotions and additional funds come through conviction numbers, not actually guilty numbers. Law enforcement has turned mercenary in many areas. Far more concerned about the money than actual application of justice.
Appalling. I have seen the pendulum swing from a rape victim having no power in the courtroom to having all the power. In the late 70’s it was horrible for rape victims, now it’s hell for the accused. When the hell is the pendulum going to start swinging back to the middle, where it belongs? Under a Hillary Administration???
I have never understood why any “justice” dept. or prosecutor just wants to convict someone whether they are guilty or not. Of course they should want to actually know what the truth of the matter is. We are talking prison. It should be a crime to keep someone falsely imprisoned.
However, I find this ruling to be perfectly consistent with Obama’s sense of “justice”. He has already imprisoned the innocent in Gitmo where he has also them tortured. He kills people on his own say so. Relatively speaking, for a man such as he, simply keeping someone in prison and failing to actually order their torture or death is a step up in his behavior.
I am disgusted. It does not help the victim to have the wrong person in prison for the crime against her. It is heinous not to test this DNA. Why wouldn’t any decent, sane person want to know whether he’s the actual perpetrator or not?
I’ll say it again. This nation’s “leadership” is lawless and becomes more so every day that passes.
I live in the Ninth Circuit and I do not know why there has been a sea change there. They have gotten two right in a row. My God, the world may be ending!
“held accountable for the purity of their thought”
Thoughtcrimes are a problem, to be sure.
Here watch transwoman reporter Zoey Tur threaten to send Breitbart Editor-at-Large Ben Shapiro home “in an ambulance” for daring to say that transgenders were delusional.
Small steps, dear Shadow, small steps.
Then big crushing steps, a boot stamping on a human face — forever.
The only DNA test that matters is whether the victim is XX and the perpetrator is XY.
If yes, then GUILTY!
And I’m glad to see you are hard at work making sure Ms. Lunsford and the judge are never held accountable for the purity of their thought. Although, Ms. Lunsford does show some weakness. Perhaps you should reconsider?
You need a new copy editor as the article sez he was convicted of rape in 2016!!!
If there were no constitutional issues with the conviction, and if the criminal is willing to pay for the new testing, then the testing should be permitted.
I bet they’ve got some new fangled DNA testing next year. /snark
Good. Very, good, Chief Consort. Glad to see there is a long term strategy. Keep up the good work.
“Your laxity has caused the prosecutors inconvenience.”
Quite true.
Outside of colleges, their is still the veneer of “justice” (heh), soooo we have to do the kabuki theater and then convict.
But soon, very soon, what college women can do to men will be available to women everywhere.
And here was a great punishment of a white man (*spit*) who got convicted of rape for giving a young woman a ride home.
It’s hilarious! His tears are delicious.
In feminism, it is better to convict the innocent than dare disbelieve a woman. It’s her truth, and that’s enough. “Evidence” is such a patriarchy thing, anyway.
Unfortunately, they just let the guy out after only 2 years.
Can you believe it? A terrible outcome for womankind.
At least I can still count on Universities to use their Kangaroo Court system to justly expel as many men as the female students want to get rid of.
Well, Chief Consort,
Isn’t it the Grand Inquisitor’s job to secure confessions so this sort of thing never happens? Your laxity has caused the prosecutors inconvenience.
Most judges and prosecutors are not interested in administering justice, they are only concerned with a conviction at any cost. That’s the sad state of our legal system, liberty destroyed by those who were suppose to protect it.
The bar association is another criminal organization and should be charged under the existing RICO statutes, but that will be a cold day in hell when that happens.
It’s better that 100 innocent persons suffer than let one guilty of rape escape punishment.
It’s the new Obama model.
It reminds me quite of the Red Queen. “‘Sentence first — verdict afterwards.”
Prosecutor oversight. There seems to be none. Save and except Project Innocence. Why not have at least 1 independent attorney who is unconnected with the ‘obtain a conviction and/or plea deal at all cost reward system’ (which seems to be fueling too many prosecutions) in every prosecutor’s office as a check on prosecutorial abuse?
Prosecutors become jaded and their discretion suffers. Their power corrupts. This seems to be a common occurrence. How many times have we seen prosecutors acting wildly outside the bounds of the law, of what’s right?
Mr Smith is right on – why was a charge ever brought in this case? Everyone was drunk, and the physical evidence contradicted the drunk brother’s eyewitness testimony. If Watson was really pumping as the drunk brother said, why does the evidence contradict his claim?
If I was president and my justice department was actively fighting to suppress possible exculpatory evidence (in general) and specifically in such a questionable case, there would be public suspensions, investigations, etc. Where is the outrage? The oversight? Without watchdogs in every department of government who have a direct line of communication to a sitting president, abuse will abound.
Didn’t SCOTUS rule somewhere that “actual innocence was not grounds” in an appeal?
Actually the administration’s approach is perfectly consistent, when taken in tandem with their viewpoint on sexual assault in universities.
“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.”
Unless you’re accused of sexual assault. To be fair, it isn’t just the current administration. This particular crime causes many people to drop any thought of due process or justice to demand swift and retributive punishment.
It’s a little unclear from the facts set out in the essay if the semen would really absolve the defendant. But should not the defendant be able to argue at trial he did not have sex with the girl, and to the extent there is evidence of sexual relations evidence points to another person? I think he should.
There was obviously a great deal of problems with the reliability of the brother. The guy in prison was not convicted of anything based on the brother’s testimony. If the defense had been able to argue the brother’s lack of credibility plus the evidence of sex with a different boy, it would be very hard to convict the defendant.
Above said, none of these people sound very likeable. But the law is for low lives as well as altar boys and it sounds like this guy should not have been convicted, and he deserves a new trial based on the new evidence.
One aspect of this that is sad is that the accused needed to wait about a year for the Ninth Circuit to render its decision after he launched his objection. In another sense of justice he should have received the DNA test and allowed the appeal to proceed on the basis of establishing a precedent for later cases but he would be afforded the opportunity for exoneration.
In reading the case I found that the DNA test certainly rose to the degree of being exculpable in nature. This was not just an appeal founded only on the basis of causing unnecessary delay and frivolous actions that the 9th Circuit held could be grounds for denial.
I suspect the administration did not want to experience the loss of face when it could be ruled this man never committed a crime. Better in their mind to protect the government than to see the truth in whether this man committed a serious offense.
It is my opinion that in reading the background events listed in the court’s opinion, With the evidence presented I would have a difficult time bringing this case to trial to begin with, it isn’t conclusive enough for me to agree to charge this defendant.