DON'T ROCK THE BOAT, BABY:

Why Did Obama Wimp Out on the Death Penalty?: The president who was once a champion of defendants’ rights to DNA evidence as a senator in Illinois has now let his Justice Department oppose that right at the Supreme Court. What happened? (Radley Balko, 3/07/09, Daily Beast)

Obama is no federalist. Nor has he, in the past, subscribed to the sort of “originalist” arguments that say we can’t read rights into the constitution that weren’t there in the beginning. Yet that is the gist of the federal government's brief in Osborne, which says “There is no tradition in this country of granting convicted criminals post-conviction access to the prosecution’s evidence locker…. And constitutional rights do not spring into existence simply because science has advanced.”

On the other side, one amicus brief filed on Osborne’s behalf by several former prosecutors (including former U.S. Attorney General Janet Reno) points to several cases in which prosecutors vigorously fought DNA testing for years. When the tests were finally done, they not only cleared the defendant, but, using DNA databases, identified the actual culprit, who in some cases had gone on to commit more crimes. It also noted that there have been earlier cases, similar to Osborne’s, in which defendants convicted on apparently “overwhelming’ evidence” of guilt were later exonerated by DNA testing.

In the end, the more likely explanation for the Obama Justice Department’s position in Osborne is inertia and deference to tradition. The Bush administration wasn't obligated to take a position Osborne, but it did anyway, filing a brief just days before Bush left office. That's the brief that Obama's depty solicitor general defended on Monday, continuing the tradition by which a new administration generally argues the old administration's positions in holdover federal court cases.