Supreme Court Rejects Right to DNA Test to Prove Innocence

By Jeralyn, Section Supreme Court
Posted on Thu Jun 18, 2009 at 12:47:24 PM EST
Tags: dna testing (all tags)

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In a setback to requests for DNA testing by convicted inmates, the Supreme Court today decided the Alaska case of District Attorney's Office vs. Osborne. The opinion is here (pdf).

In a 5-to-4 decision, the court found against William G. Osborne, a convicted rapist from Alaska. But the decision does not necessarily mean that many innocent prisoners will languish in their cells without access to DNA testing, since Alaska is one of only a few states without a law granting convicts at least some access to the new technology.

“DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty,” the majority conceded, in an opinion written by Chief Justice John G. Roberts Jr. “The availability of new DNA testing, however, cannot mean that every criminal conviction, or even every conviction involving biological evidence, is suddenly in doubt.”

The Innocence Project (which represented Osborne) calls the decision disappointing but of limited impact. ScotusBlog has more. .[More...]

In other words, Alaskans need to change their law. Justice Stevens dissented. Background here

Former FBI Director William Sessions explained why the decision should have gone the other way:

As has been said many times, the Justice Department's mission is to do justice. It is not to seek a conviction—or to uphold one—at all costs.

What interest does Alaska have in denying Osborne access to this evidence, thus obscuring the truth?

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Supreme Court Rejects Right to DNA Test to Prove Innocence | 37 comments (37 topical)

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This SCOTUS is a Disgrace. (5.00 / 2) (#1)
by cwolf on Thu Jun 18, 2009 at 12:53:18 PM EST

And it has been for some time now.

Alaska, good luck getting a law (5.00 / 0) (#2)
by lilybart on Thu Jun 18, 2009 at 01:14:04 PM EST

to fix this with the compassionless so-called "Christian" gov.

: And Mass. (5.00 / 1) (#4)
by me only on Thu Jun 18, 2009 at 01:18:46 PM EST

excuse is what, exactly?

: The article (5.00 / 3) (#5)
by bocajeff on Thu Jun 18, 2009 at 01:22:50 PM EST

also stated that Massachussetts doesn't have a law just like Alaska (Oklahoma is the other). Damn that Gov. Patrick and his right wing, white, christian bigots...

considering the economic (5.00 / 1) (#9)
by cpinva on Thu Jun 18, 2009 at 03:24:17 PM EST

burden on the taxpayers, who bear the cost of incarceration, it would seem of considerable interest to the state that only the truly guilty occupy those expensive prison beds.

this should be of some modest concern to the USSC as well.

But realize (none / 0) (#12)
by jbindc on Thu Jun 18, 2009 at 04:07:06 PM EST

that even if the Court found for Osborne, all that would mean is that he could have access to the DNA. And even if he tested the DNA and it wasn't his, that doesn't mean he would walk out of prison (or that he didn't do it). There was plenty of other evidence presented at trial (and even his own attorney thought he was guilty, which is why she didn't order a different test). Osborne would have to petition the Alaska courts to hear his case again and let him present his evidence or he would have to petition for clemency.

This isn't as simple as he gets the DNA and walks out the door.


From what I have read about the Innocence (5.00 / 1) (#18)
by hairspray on Thu Jun 18, 2009 at 05:37:16 PM EST

Project, the vetting is pretty intensive. I would trust them to do a careful job of reviewing the case before spending their limited resources on an obviously guilty person. I have read that they take less than 10% of the cases referred to them.


That may be true (5.00 / 1) (#19)
by jbindc on Thu Jun 18, 2009 at 05:41:05 PM EST

But I'm talking about what would happen even if he got the DNA - he still doesn't get to get out of prison even if the DNA doesn't match his. There's plenty of other evidence and he would have more court proceedings to determine whether he would be freed or not. It's not like tv, where the surprise evidence pops up and the guy gets to go home that night.


I dunno (5.00 / 1) (#21)
by Steve M on Thu Jun 18, 2009 at 06:09:26 PM EST

a win in this case would have established a legal principle that would have substantially aided the overall mission of the Innocence Project, potentially allowing it to secure DNA testing for any number of criminal defendants. I wouldn't necessarily conclude that they were deeply confident in the innocence of this particular defendant.


But, why (5.00 / 1) (#23)
by NYShooter on Thu Jun 18, 2009 at 09:10:08 PM EST

would his guilt or innocence matter?

His culpability isn't the issue at stake, is it?

Isn't "access" what's being abjudicated?


: It matters (none / 0) (#34)
by Steve M on Fri Jun 19, 2009 at 08:44:46 AM EST

because I was responding to other commentors who were discussing it.
I agree that whether or not there is a constitutional right to access should hardly depend on whether this particular individual is guilty or not. All this effort by the conservative judges in the majority to insinuate "don't worry, he's really really guilty" is lost on me.

Wait (none / 0) (#31)
by MrConservative on Fri Jun 19, 2009 at 02:04:02 AM EST

Was the Innocence project defending him all the way throughout the trial? Or were they just present at the supreme court hearing to make their stance on the constitutional issues surrounding it known?


It seems (none / 0) (#30)
by MrConservative on Fri Jun 19, 2009 at 02:02:34 AM EST

That the state wants to avoid the 1 in 5 million chance or so of a false negative, and consider him guilty beyond reason of a doubt.

I still think he should be given the DNA to test, though.


fwiw, in this particular case, (5.00 / 0) (#20)
by sarcastic unnamed one on Thu Jun 18, 2009 at 05:54:33 PM EST

the convicted rapist has admitted guilt, according to NPR.

: FWIW (none / 0) (#29)
by gyrfalcon on Fri Jun 19, 2009 at 12:14:14 AM EST

lotsa these degraded, hopeless characters confess falsely to all sorts of things for all sorts of screwy reasons. Means absolutely zippo.

: Well (none / 0) (#32)
by MrConservative on Fri Jun 19, 2009 at 02:06:17 AM EST

He confessed to his crime to secure parole. I think he was almost certainly guilty, and he shouldn't have been granted parole. He committed a horrific home invasion five months later.
His guilt is pretty certain, from the facts of the case. However, I think he should still be given access to his DNA evidence. It would just prove the point. I think he's trying to win the lottery, but I can't say that with absolute certainty, and the DNA evidence can provide that certainty.

F**k whether you did it--Procedure Governs (5.00 / 1) (#22)
by downtownted on Thu Jun 18, 2009 at 08:43:43 PM EST

This is a continuation of you or your lawyers miss a date or fail to file and you are out of court remedies if you are innocent. This SC seems more concerned about dotting i's and crossing t's than about whether some convicted party did the crime or not. Sophisticated DNA tests not down in this case would tell the tale.

They, and hopefully you, are aware that the more procedure trumps, the better it is for big business and the rich and powerful; and the more difficult it is for the average joe or the innocent convict to get justice. But justice doesn't seem to be so important anymore. Making lots of money and keeping scary people locked up until they are old and scrawny and no longer scary seems to be the winning argument. Too bad for me and maybe for you

From NY Times online today (5.00 / 1) (#24)
by diogenes on Thu Jun 18, 2009 at 09:16:16 PM EST

"Mr. Osborne's trial lawyer decided not to pursue a second kind of DNA testing that was more discriminating. The lawyer said she feared that the results might further incriminate her client. After his conviction, Mr. Osborne sued state officials in federal court seeking access to the DNA evidence for a third kind of yet-more-discriminating testing.
There was other significant evidence of Mr. Osborne's guilt, and he confessed to the Alaska Board of Parole, which released him after 14 years. He later said he had lied to the parole board in the hope of quicker release. Mr. Osborne has since been convicted of a home invasion."

DNA post-conviction testing not a const. rt. (5.00 / 0) (#35)
by Adrienne Dunn on Fri Jun 19, 2009 at 11:00:15 AM EST

I represent clients seeking post-conviction relief and sometimes qualify for new DNA testing. And yet, I don't think that I disagree with the Court on this one. I don't see how post-conviction DNA testing can be a constitutional right. That being said, I do think inmates should have access to post-conviction DNA testing through statute. And am hopeful that the few states that do not have an applicable statute will rectify this.

preconviction DNA testing (none / 0) (#36)
by diogenes on Fri Jun 19, 2009 at 04:16:56 PM EST

Actually, it's PREconviction DNA testing that should be a constitutional right--and even be mandated, rather be the lawyer's option.


: However, (none / 0) (#37)
by Abdul Abulbul Amir on Sat Jun 20, 2009 at 07:28:50 PM EST

In this case there was a boatload of evidence that the guy was guilty. Identified by both victim and accomplice plus physical evidence. The lawyer wanted to go for a mistaken identity defense that the test would have crushed.
So, should the test be mandated even if it is the defendant's best interest not to do so?

: However, (none / 0) (#38)
by Abdul Abulbul Amir on Sat Jun 20, 2009 at 07:33:45 PM EST

In this case there was a boatload of evidence that the guy was guilty. Identified by both victim and accomplice plus physical evidence. The lawyer wanted to go for a mistaken identity defense that the test would have crushed.
So, should the test be mandated even if it is the defendant's best interest not to do so?

Nope, no politics going on here (none / 0) (#3)
by andgarden on Thu Jun 18, 2009 at 01:16:32 PM EST

They're all just "applying the law!"

Has the subject of (5.00 / 1) (#6)
by gyrfalcon on Thu Jun 18, 2009 at 01:59:49 PM EST

empathy ever come up at all in reference to the Supreme Court?

This is a truly disgraceful decision. I expect it from the Foul Four, but how does Kennedy sleep at night?

I'm astonished by some of the reasing quoted in the Times article. It says Roberts wrote, "DNA's power to prove innocence without unnecessarily overthrowing the established criminal justice system."

WTF? This is akin to the kind of thinking that says allowing gays to marry would destroy straight people's marriages. It makes no sense.

And then there's this: "Justice Scalia said he was struck by the absence of a full-throated declaration of innocence from the defendant."

How on earth does what precise words the defendant uses have any bearing whatsoever on his consitutional right to not be blamed for something he didn't do when there's evidence available that will prove it?

I simply don't understand the thought process that leads to this kind of decision.


You can read the whole decision (5.00 / 1) (#7)
by andgarden on Thu Jun 18, 2009 at 02:11:00 PM EST

and dissents here (PDF), just scroll past the syllabus.

Kennedy seems to be a deeply unprincipled person. That's all I can say.


: he's ed meese's protege (none / 0) (#15)
by tokin librul on Thu Jun 18, 2009 at 05:16:28 PM EST

is all you really need to know...

And Stevens lets loose on Alito (5.00 / 1) (#8)
by andgarden on Thu Jun 18, 2009 at 02:13:15 PM EST

in a footnote:

JUSTICE ALITO's concern that guilty defendants will "play games with the criminal justice system" with regard to the timing of their requests for DNA evidence is not only speculative, but gravely concerning. Ante, at 10. It bears remembering that criminal defendants are under no obligation to prove their innocence at trial; rather, the State bears the burden of proving their guilt. See Sandstrom v. Montana, 442 U. S. 510 (1979); In re Winship, 397 U. S. 358 (1970). Having no obligation to conduct pretrial DNA testing, a defendant should not be bound by a decision to forgo such testing at trial, particularly when, as in this case, the choice was made by counsel over the defendant's strong objection. See Osborne I, 110 P. 3d, at 990-991. (JUSTICE ALITO suggests there is reason to doubt whether Osborne asked his counsel to perform DNA testing prior to trial, ante, at 12. That fact was not disputed in the state courts, however. Although Osborne's trial counsel averred that she "did not have a present memory of Osborne's desire to have [a more specific discriminatory] test of his DNA done," she also averred that she was "willing to accept that he does" and that she "would have disagreed with him." Id., at 990.)

Min, I Wish This Was Inscribed Somewhere (5.00 / 1) (#16)
by tokin librul on Thu Jun 18, 2009 at 05:22:22 PM EST

It bears remembering that criminal defendants are under no obligation to prove their innocence at trial; rather, the State bears the burden of proving their guilt.

And it's still cookin' the books to deny a defendant access to possible exculpatory evidence. I guess it is not only on TV shows where conviction is the ultimate value, rather than any recondite notions of "justice?"


But in this specific case (none / 0) (#17)
by jbindc on Thu Jun 18, 2009 at 05:36:10 PM EST

Don't confuse the two - In this case, this guy is not a criminal defendant - he is a convicted felon. This was not a case of the State denying him any test before his conviction - this is a case of him wanting the DNA after the fact (and if you read the opinion, he didn't ask to do the more technologically advanced DNA test - he asked to do the exact same test over that was originally done). And at the original trial - it was his defense attorney who did not want the other test done because she was sure he was guilty.


That makes it OK? (none / 0) (#28)
by gyrfalcon on Fri Jun 19, 2009 at 12:03:51 AM EST

Is this a high school ball game or is this supposed to be actual justice-- you know, where people aren't punished for stuff they didn't actually do?


: Well (none / 0) (#33)
by jbindc on Fri Jun 19, 2009 at 07:47:39 AM EST

I was responding to tokun librul's point that the State shouldn't deny a criminal defendant's access to evidence so they can railroad him . The point being - that's not what happened in this case at all.

Then this does not overturn (none / 0) (#11)
by AX10 on Thu Jun 18, 2009 at 03:54:58 PM EST

current state level laws that permit DNA testing to prove innocence then, is that correct?

: That's right (none / 0) (#14)
by Peter G on Thu Jun 18, 2009 at 04:48:04 PM EST

The issue before the Court was whether the Constitution requires states to do something to allow post-conviction DNA testing even if their own legislature hasn't passed a statute (or has passed an inadequate statute). The majority says its up to the states to address the issue. Certainly in no way disapproves of how the states -- a great majority of them -- have dealt with the issue that have chosen to do so.

Interesting case (none / 0) (#13)
by Steve M on Thu Jun 18, 2009 at 04:46:52 PM EST

So the defendant wanted a DNA test (actually, a more reliable test than the one he had already had) prior to his conviction, but his trial counsel said no.

Apparently the lawyer believed her client was guilty (she was probably right) and that a DNA test would only serve to confirm his guilt. She felt the best shot to get him off was a mistaken identity defense based on the sketchiness of the victim's ID. Obviously that argument didn't work out so well either, but it might have been the correct strategic choice.

I am curious how defense lawyers typically handle this sort of situation. Is it an option to say, "My advice is not to take the test if you're guilty," and then let the client make the decision?

Here's one story (5.00 / 2) (#26)
by Peter G on Thu Jun 18, 2009 at 10:52:31 PM EST

Without violating confidentiality, because the story is told in my client's book ... I was one of the court-appointed attorneys for Nick Yarris, on death row about 20 years in PA for a horrible kidnap, rape and murder of which he said he was innocent. Three prior DNA tests were botched or came back "inconclusive." Finally, we reached the point where new, more sophisticated testing was possible but by now, with the passage of time and all the prior testing that was attempted, there was only enough sample left for one last test. The lawyers -- who of course cannot know what the "truth" really is and are terrified of getting a bad result that will screw the client's chances on any other issues he may have -- unanimously recommended against doing the test. The client insisted. The result was an exoneration, and he went free from death row and from prison several months later.


: Wow (5.00 / 1) (#27)
by Steve M on Thu Jun 18, 2009 at 11:08:59 PM EST

That's quite a story. Thanks for sharing.

That's a good question. (none / 0) (#25)
by EL seattle on Thu Jun 18, 2009 at 10:22:52 PM EST

I'm sure that there are a lot of us non-lawyers who wonder about how a Hobson's Choice (or Sophie's Choice) dilemma like this plays out in the trenches of reality.
