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Supreme Court to Hear DNA Case and (Maybe) Decide "Freestanding Innocence" Issue:  At SCOTUSblog, in District Attorney's Office for the Third Judicial District v. OsborneGoldberg reports that Osborne will address whether Osborne can bring a lawsuit against Alaska to access DNA evidence through a 1983 claim instead pursuing the traditional procedural route of a writ of habeas corpus.  The Supreme Court could also address whether a prisoner with access to this evidence can then overturn his conviction by asserting a "freestanding innocence" claim, based solely on the ground that he is not guilty rather than on any trial defects.  The Ninth Circuit assumed, without deciding, that the answer to the second question was "Yes."  Goldberg states the Ninth made this assumption so that it could hold Osborne had a right to access the DNA evidence.

Chief Justice Roberts Comments on Rehnquist and the Court:
  At Blog of the Legal Times, Tony Mauro has a post discussing the Chief Justice's February 4th talk at Rehnquist Center at the University of Arizona Rogers College of Law.  In his post Mauro discusses Roberts comments on former Chief Justice Rehnquist's legacy, as well as Roberts diplomatic duties as Chief Justice.  Mauro's post also links to Adam Liptak's article in the New York Times.  Liptak's story focuses in on Chief Justice Roberts comments that "development [of the Court] might be a good thing."  During his talk, the Chief Justice apparently suggested that when the members of the Court were former governors, legislators, cabinet members, law professors, and practicing lawyers the decisions from the Court "tended to inject policy and politics into an area properly reserved for the law."  As a result, "the practice of constitutional law -- how constitutional law was made -- was more fluid and wide ranging than it is today, more in the realm of political science."  Liptak notes that Roberts opinion is not without its critics.  He cites the study "Circuit Effects: How the Norm of the Federal Judicial Experiences Biases the Supreme Court"  for its proposition that "[f]ormer appellate court judges are no more likely to follow precedent or to put aside their policy preferences than are justices lacking judicial experience."

Top Texas Criminal Judge Faces Impeachment Inquiry:  Nathan Koppel posts on Wall Street Journal Blog that Sharon Keller, Texas' highest ranking criminal judge, is facing possible impeachment because of her handling of a case involving death-row inmate Michael Richard.  Apparently, in September 2007, Richard sought to appeal his death sentence to the Texas Court of Criminal Appeals pending the Supreme Court's decision on the constitutionality of lethal injection.  Judge Keller refused to keep the court open past 5pm so that his counsel would have time to prepare the appeal.  Richards was executed that same day.  Texas state legislator Lon Burnam has filed the resolution calling for impeachment by the House of Representatives. In an interview with the Fort Worth Star-Telegram Burnam told the newspaper that he was "incensed" because the State Commission on Judicial Conduct had not responded to his request that it investigate Keller's handling of the Richards case. 

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The Osborne case may be decided on narrow grounds. Osborne, it seems, is less than a perfect poster child for factual innocence. He's given a confession, and there is other evidence to suggest his guilt.

One interesting point is the question of whether a defendant asserting such a factual innocence claim should have to have sworn, under penalty of perjury, that he is innocent. Certainly, the possibility of more time would weed out fishing expeditions.

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