In today’s “better late than never” segment we’ll look at the June 18 Supreme Court decision, District Attorney's Office for Third Judicial District v. Osborne. In a 5-4 decision, with the usual suspects in their respective corners, the Court ruled that prison inmates have no constitutional right to DNA testing that may exonerate them.
William Osborne may or may not have kidnapped and murdered a prostitute. The truth very well could be found by testing a DNA sample in Alaskan prosecutor’s possession, with Osborne willing to fund the necessary test, post-conviction. To be clear, Osborne is not the second coming of Troy Davis. There are many circumstantial facts against him, and his lawyer avoided certain DNA tests earlier in the trial out of fear that they would implicate, not exonerate him. We should and will spend a whole ‘nother post talking about the moral and strategic issues a defense lawyer faces in handling DNA evidence.
There is a condom left from the crime scene, where the victim was left shot and raped (she survived). DNA testing done early in the trial showed that Osborne was in fact a potential suspect. Osborne eventually pled guilty in the hopes of securing an earlier release. Today there is more sophisticated DNA testing than Osborne had at the time of his trial, and Osborne has offered to pay for the opportunity to prove his innocence.
Four states do not allow post-conviction DNA testing remedies: Alabama (though they will soon for death row inmates), Alaska, Massachusetts (?) and Oklahoma. Many of the other 46 states, however, have restrictions such as timing allowing for plea bargainers to test. According to the Innocence Project, 35% of the 240 individuals who have been exonerated by DNA evidence confessed to their murders, probably due to police coercion at the time of arrest. Additionally, the New York Times article points out that even in states permitting post-conviction testing, prosecutors fight tooth and nail to block access to DNA evidence.
The conservative justices, as is occasionally their wont, determined that the matter was best left to the states. You know, the kind of states that elect Sarah Palin governor. Chief Justice Robers seemed satisfied with legislatures being up to handle political softballs like death-row inmate access to DNA evidence.
Justice Souter, on his final tour of duty, noted that Alaska incompetence does not stop at the executive branch: “[Alaska] has demonstrated a combination of inattentiveness and intransigence (in prisoner access to DNA) that add up to “procedural unfairness that violates the Due Process Clause.”
Though Alaska claimed that prisoners do have procedural avenues for accessing their own DNA during cases, Justice Stevens (in dissent) pointed out that no Alaska prisoner had actually succeeded in obtaining their DNA through these procedures.
Justice Alito’s concurrence, joined by Kennedy and Thomas, displayed skepticism of DNA evidence generally (“[it] often fails to provide absolute proof of anything”) and suggested that if prisoners could use DNA evidence to exonerate themselves, they would simply gain the system by not asking for testing at trial, and then asking for testing after trial in the hope that the evidence had become contaminated.
Two things strike me as misguided about Justice Alito’s interpretation. First, a defendant arguing vehemently for his innocence would be more likely to demand the DNA test during the trial, thus expediating his exoneration, than play the kind of games Alito suggests. Second, the Court could simply argue that inconclusive DNA testing conducted post-conviction could not be used to overturn the decision. The Innocence Project has not only exonerated 240 individuals conclusively, but in over 40% of its cases it has also identified the actual guilty party. Alito makes it seem like DNA evidence does nothing but cast a haze on things.
We could talk about tangential issues like whether the death penalty is just all night, but I am tired and goin’ to bed. Here is some further reading:
Supreme Court Decision (not all of you at once…) http://www.supremecourtus.gov/opinions/08pdf/08-6.pdf
A Law Prof Drops Some Case History: http://lawprofessors.typepad.com/science_law/2008/11/osborne-and-the.html
NY Times Article: http://www.nytimes.com/2009/06/19/us/19scotus.html?pagewanted=print
Innocence Project Fact Page: http://www.innocenceproject.org/Content/351.php
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