Justices Rule Inmates Don’t Have Right to DNA Tests

June 19, 2009
By DAVID STOUT
http://www.nytimes.com/2009/06/19/us/19scotus.html?_r=1&hp

WASHINGTON — Convicts do not have a right under the Constitution to obtain DNA testing to try to prove their innocence after being found guilty, the Supreme Court ruled on Thursday.

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.”

In addition, the majority reasoned, it is not so much up to the federal courts as it is to the state legislatures to establish rules “to harness DNA’s power to prove innocence without unnecessarily overthrowing the established criminal justice system.”

The majority appeared to have been influenced by the fact that 46 states and the federal government have enacted laws that allow some inmates access to DNA testing, and there is nothing to prevent the remaining states from changing their laws. In addition to Alaska, Alabama, Massachusetts and Oklahoma do not explicitly allow the testing.

Justice John Paul Stevens wrote a dissent expressing his dismay that the majority had chosen to approve of Alaska’s denial of the evidence sought by the defendant. “The DNA test Osborne seeks is a simple one, its cost modest, and its results uniquely precise,” Justice Stevens said.

Since 1992, 238 people in the United States, some who were sitting on death row, have been exonerated of crimes through DNA testing. In many of those cases, the DNA testing used to clear them was not available at the time of the crime.

But several aspects of the Osborne case did not make the defendant a sympathetic one, so perhaps his case was not the ideal vehicle for those hoping that the nation’s highest court would find a constitutional right to “post-conviction” DNA testing — that is, after the normal appeals have been exhausted.

The victim in the Osborne case was a prostitute who was raped, beaten with an ax handle, shot in the head and left in a snow bank near Anchorage International Airport in 1993. She recalled that a condom was used in the assault against her, and one was found near the scene. An ax handle similar to the one used to club the victim was found in the defendant’s room.

The victim identified Mr. Osborne as one of her assailants, and he was also incriminated by another man who was found guilty in the attack.

Moreover, Mr. Osborne later confessed to the Alaska parole board, which released him after he had served 14 years of a 26-year prison term for kidnapping, assault and sexual assault. Later, the defendant said he confessed not because he was guilty, but in the hope of getting out of prison sooner. After his parole Mr. Osborne was convicted of a home invasion and is awaiting sentence for that crime.

Thursday’s ruling in District Attorney’s Office v. Osborne, No. 08-6, reversed a ruling by the United States Court of Appeals for the Ninth Circuit. Joining Chief Justice Roberts in the majority were Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.

The dissenters, besides Justice Stevens, were Justices Ruth Bader Ginsburg, Stephen G. Breyer and David H. Souter.

A paradox in the case, at least to a layman, is the fact that Mr. Osborne’s lawyer at the time of the trial declined to pursue the most advanced DNA testing available — for fear, she acknowledged later, that it would prove his guilt.

Even though the latest DNA testing could establish whether the defendant raped the prostitute, attorneys on both sides have sometimes spoken ambiguously, or at least without iron-clad clarity.

When the case was argued on March 2, Kenneth M. Rosenstein, an assistant state attorney general, said that an Alaska law governing post-conviction relief could allow Mr. Osborne access to DNA evidence if he would swear to his innocence.

But would he?

“I assume he certainly would,” said his lawyer, Peter Neufeld.

But Mr. Rosenstein declined to say whether the state would resist the defendant even if he did so swear.

Justice Scalia said he was struck by the absence of a full-throated declaration of innocence from the defendant, and quoted from a sworn statement Mr. Osborne had submitted to the state courts: “I have no doubt whatsoever that retesting of the condom will prove once and for all time...”

Here, Justice Scalia observed, a listener would expect to hear the words “my innocence.” But the defendant did not say that, saying instead “either my guilt or innocence.”

Mr. Neufeld, a co-founder of The Innocence Project, which works to free wrongly convicted prisoners, issued a statement on Thursday calling the ruling “deeply flawed and disappointing,” but predicting that it may not have wide effect.

“Most people who need DNA testing to prove their innocence will not be affected by today’s ruling, but the small number of people who are impacted may suffer greatly,” he Neufeld said. “As a result of this decision, more innocent people will languish in prison and some may die in prison because they were prevented from proving their innocence.”

Senator Patrick J. Leahy, Democrat of Vermont who is chairman of the Senate Judiciary Committee, also issued a statement expressing disappointment,

“We should make every effort to promote DNA testing in our criminal justice system — whether before or after trial — in order to help ensure that only the guilty are convicted, never the innocent, and that the guilty do not walk free to commit more crimes,” said Mr. Leahy, a former prosecutor.