Bill Roth/AP
William Osborne

Supreme Court Restricts Convicts’ Access to DNA Testing With Controversial Decision

June 19, 2009 06:30 PM
by Denis Cummings
The Supreme Court’s ruling that convicts do not have a constitutional right to test biological evidence has sparked outrage from civil libertarians and defendant advocacy groups.

Court Rules There Is No Constitutional Right for Postconviction DNA Testing

The Supreme Court on Thursday ruled in a 5-4 vote that a convicted Alaska rapist does not have the constitutional right to retest biological evidence used at his 1994 trial.

In the majority decision, Chief Justice John Roberts wrote that the issue of postconviction testing should be left to the legislatures to decide. “To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response,” he said.

Alaska is just one of three states, along with Massachusetts and Oklahoma, that does not have a law granting defendants access to DNA testing after conviction. Most state laws have conditions for accessing DNA, such as requiring defendants to swear that they are innocent or limiting testing to tests that weren’t available at trial.

The court ruled that, despite not having a specific law addressing the issue, “There is nothing inadequate about Alaska's postconviction relief procedures in general or its methods for applying those procedures to persons seeking access to evidence for DNA testing," according to Cornell University Law School.
The case involved defendant William Osborne and a second man, who in 1993 allegedly raped, beat and shot a prostitute, who miraculously survived. The second man told police that Osborne was involved in the attack and DNA tests of a condom at the crime scene showed that Osborne was a match.

The condom was examined using DQ Alpha testing, which usually cannot narrow a sample down to less that 5 percent of the population, according to the court. Osborne and his attorney were later presented with the opportunity to test the condom using the more sophisticated RFLP method; his attorney declined because “she feared that the results might further incriminate her client,” writes The New York Times.

Osborne was convicted and sentenced to 26 years in prison. He was released in 2007, three years after confessing to parts of his crime before a parole board. He appealed in both state and federal courts for the right to re-test his DNA. He lost the state cases, but his federal case—in which he argued that his rights to due process were violated—was supported by 9th Circuit Court.

On remand, a district judge ruled that “there does exist, under the unique and specific facts presented, a very limited constitutional right to the testing sought,” citing that a modern DNA test was not available at the time, that the state would not be forced to pay for the test and that the result would be material.

But the Supreme Court determined that giving convicted criminals the right to test DNA samples would place too large a burden on the criminal justice system. It would also, writes Justice Samuel Alito in the concurring opinion, allow defendants to “play games” with the system, attempting—as Osborne did—to introduce DNA testing only after their defense strategies failed.

In the dissent, Justice John Paul Stevens argued, “There is no reason to deny access to the evidence and there are many reasons to provide it, not least of which is a fundamental concern in ensuring that justice has been done in this case.”

Reactions: Obama administration, Innocence Project

The Obama administration, adopting the policy of the Bush administration, is opposed to Osborne’s case. In a press release issued Thursday, Attorney General Eric Holder supported the court’s decision, but added that state legislatures should introduce laws giving defendants the right to access postconviction DNA tests.

“The Court merely spoke about what is constitutional, not what is good policy. And there is a fundamental difference. … I hope that in light of today's decision all levels of government will follow the federal government's lead by working to expand access to DNA evidence,” he said.

Bill Oberly, director of the Alaska Innocence Project, which argued before the court on behalf of Osborne, expressed disappointment in the decision, saying that it illustrates the importance for Alaska to institute a statute allowing for postconviction DNA testing.

A bill was introduced in March by state Rep. Bob Lynn, R-Anchorage, but nothing has come of it yet. “There are 47 states that have bills similar to the one that I'm filing, so we need to catch up with the rest of the country and get the guilty people in jail and the innocent people out of jail,” Lynn told KTUU-TV (Alaska).

Opinion & Analysis: Debating the decision

The court’s decision has sparked outrage from many editorialists and bloggers who believe that it is a clear violation of the right to due process.

The Los Angeles Times argues the decision illustrates the needs for the “empathy” of Supreme Court nominee Sonia Sotomayor. The decision represents the “sort of jurisprudence that … is impervious to the fundamental humane purposes of the Bill of Rights,” it writes, adding that the “basic difference between the majority and the minority is insensitivity to the poignant predicament of an imprisoned man denied an opportunity to clear himself.”

The Des Moines Register believes that the court should not place the responsibility of regulating postconviction testing on states. “Unfortunately, the states have an uneven track record at best on criminal justice,” it writes, “and it is hard to see why the court could not bring itself to recognize a right in the Constitution for access to evidence that could establish innocence.”

The conservative Heritage Foundation counters that “it’s easy for political hacks to attack decisions when the public doesn’t understand the facts of the case,” calling the decision “plain common sense.”

“So this case is not a case about doing justice.” It concludes. “It’s really about the latest attempt to give convicted criminals yet another bite at the apple … and another opportunity to bog down the justice system with more frivolous appeals.”

Background: History of DNA evidence

DNA testing was developed in 1985 and was soon introduced to U.S. courts, writes Time. It was used for the first time to convict a defendant in 1987, when Tommie Lee Andrews was found guilty of rape. Since then it has proven the guilt or innocence of suspects in many high-profile cases.

The first high-profile DNA case occurred in 1989, when a DNA test showed that Virginia inmate David Vasquez, who had served five years of a 35-year sentence, was innocent of murdering a woman, recounts the DNA Initiative. The test results indicated that the crime was actually committed by serial killer Timothy Spencer, who in 1994 was the first person ever executed in the U.S. on the basis of DNA testing.

DNA testing has illuminated many flaws in the criminal justice system as it proved the innocence of many inmates who had served years in prison and even some who were on death row. In 2003, after numerous Illinois death row inmates were exonerated by DNA evidence, Gov. George Ryan declared that the Illinois system was “haunted by the demon of error,” and commuted the sentence of all death row inmates.

DNA testing has also proven the guilt of inmates in several high-profile cases. In 2006, a DNA test confirmed that convicted murderer and rapist Roger K. Coleman, who was executed in 1992, was guilty of murdering his sister-in-law. Coleman maintained his innocence for 21 years and had become the center of an anti-death penalty campaign, wrote The Washington Post.

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