The Supreme Court Denies The Right to DNA Testing

Published June 18, 2009 @ 04:23PM PT

The U.S. Supreme Court today ruled 5-4 against William Osborne, an Alaska prisoner seeking DNA tests that he says will prove his innocence. Almost everyone who looks at the case, including Alaska prosecutors who have repeatedly denied Osborne access to tests, say that the tests could indeed definitively prove innocence or guilt. Before even considering the legal questions involved, the mind wanders to the common sense question - if the test could prove innocence or guilt, and someone else is paying for it, why would the state deny it?

Alaska officials claim it's a procedural issue, that if they grant testing to Osborne the floodgates swing open and everyone suddenly wants a test. That's an old argument and it's nonsense. Only seven people have ever sought post-conviction DNA testing Alaska. Some floodgates.

The split decision in the Supreme Court today hinged on Anthony Kennedy, who chose to swing the wrong way today. (It was the usual split: Roberts, Scalia, Alito, Thomas and Kennedy voted against Osborne while Ginsburg, Breyer, Souter and Stevens said his due process rights had been violated).

The majority wrote that states are handling DNA requests just fine and that federal courts shouldn't get involved. (They didn't go so far as to definitively say there is no due process right to DNA testing, however.) I would argue that most states are handling DNA access acceptably; 47 have laws granting DNA access in at least some cases, Alaska is one of the three without (Oklahoma and Massachusetts (!) are the other two). When three states fail to grant a common-sense civil right with very little downside, that's exactly the time to seek constitutional protections like due process.

And in a sign of the chasm between today's court decision and reality, Attorney General Eric Holder issued an encouraging statement clarifying the difference between the court's limited legal position and good policy on DNA testing.

"The Court merely spoke about what is constitutional, not what is good policy. And there is a fundamental difference....," Holder said. "For that reason, this administration believes that defendants should be permitted access to DNA evidence in a range of circumstances."

Andrew Cohen agreed with Holder, writing at CBS Court Watch that today's decision was expected, but that five conservative judges can't stop the positive reforms that DNA testing will continue to bring to our courts.

If anything, despite Thursday’s expected setback at the High Court, the DNA movement may pick up more steam now that economic conditions are so tough on criminal justice budgets. What prosecutor out there wants to waste precious time, money and resources pursuing a rape or murder case without ensuring the reliability of the forensic evidence? What prison official wants to fill his or her already-overcrowded prison with men who have plausible claims of innocence and who haven’t been tested to make sure? State governments are releasing guilty people to save costs; where’s the incentive keep innocent people in prison?

Sometimes, the Supreme Court is at the vanguard of big changes in the law. Sometimes it merely follows. The Osborne ruling tells us that at least five of our current Justices are going to have to be dragged, kicking and screaming, into the new day.

Get the full decision, and more background on the case, at the Innocence Project website.

(Full disclosure: when I'm not blogging here at change.org I work as the online communications manager at the Innocence Project, which represents Osborne and argued the case in the Supreme Court. Views expressed here are my own.)

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Comments (8)

The Supreme Court definitely did the incorrect thing by stating that DNA testing is not a constitutional right. In addition, every state must provide for DNA testing if requested because every tool must be used to test if defendants are guilty. Conservatives who believe in violations of rights of defendants should accept that even if there are floodgates for DNA testing, this service must provided because any less would be wrong.

Posted by Edwin Bonilla on 06/18/2009 @ 07:05PM PT
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This is a sad state of affairs if a person is not allowed to prove their innocence per a DNA test. Look at how many have already been proven not guilty years after the fact by a much delayed DNA test. Please give these people the decency of a possible chance of getting their life back. As I said, it is a proven fact that hundreds of innocent people are in prison for things they have not done...if a DNA test can prove they don't belong there...how dare they be deprived of that!!

Posted by carolyn brown on 06/18/2009 @ 07:47PM PT
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Well you see that is how this goverment works they really don't care about what is right or wrong as long as they get their money.Many people sit in prison or jail and need a dna test to prove they are innocent and due to the fact they state would have to admitt they were wrong in what they done by locking someone up,and tramatizing their lives as well as there families lives,you never get that time back you can't make up for lost time once you loose it it's gone,and as far as getting their lives back once a person has been in jail or prison your life is over,I really wish are goverment was set up for "We The People" insted of for the love of money.

Posted by Steven Reiff Sr. on 10/03/2009 @ 04:59AM PT
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A disappointing decision.

Eric Holder's distinction between what is constitutional and what is good policy is particularly strained. That the five justices chose to interpret the constitution in a way that supports bad policy weakens our founding document.

Their decision also casts doubt on the importance they give to truth-seeking as fundamental to justice.

Posted by william newmiller on 06/19/2009 @ 07:09AM PT
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But Chief Justice John Roberts, in his majority opinion, said the states have moved quickly to grapple with the challenges and opportunities presented by advances in genetic testing.

"To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response," Roberts said.

The chief justice said that new technology that was not available at trial should not throw fairly won convictions into doubt. "The dilemma is how to harness DNA's power to prove innocence without unnecessarily overthrowing the established system of criminal justice," he said.

High court says convicts lack right to DNA testing

Told you folks, selective enforcement of the law.

Note the comments from Chief Justice Roberts, "short-circuit" and "fairly won convictions" - what is the duty of the courts, winning a game or rendering judgments ?

This is like Jay Bybee's interpretation of the torture laws.

These issues also reflect on the credibility and integrity of those holding these positions. Can one really trust "rule of law" when they have these people interpreting them, the niche is infected. Judge Bybee and Chief Justice Roberts represent the top of the heap, what lies beneath them ?

Posted by jowey styxx on 06/20/2009 @ 07:15AM PT
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Typical Republican "Law & Oder" Hypocricy! And we don't want the public thinking that the "Criminal Just Us" System is CORRUPT because innocent people were WRONGFULLY IMPRISONED. Afterall, a PERJURING, EVIDENCE-FALSIFYING PROSECUTOR advances his career to become a casefixing "judge", legislator, Congressman, mayor, governor, or some other "pillar of the community". Civilized society can't afford to be without such fine people.

Posted by Jeffrey Hill on 06/26/2009 @ 02:45PM PT
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There is a lot of COURT-APPOINTED DELIBERATE LEGAL MALPRACTICE taking place as well as Prosecutorial Misconduct and "judicial" Casefixing!!! The courts are required to seek the TRUTH, not convictions (see Brady v. Maryland, famous 1963 U. S. Supreme court precedent), but that doesn't advance corrupt prosecutors' or crooked "judges'" careers or allow political grandstanding through the news media like convictions do so to hell with the poor! CRIMINAL JUST US!

Posted by Jeffrey Hill on 06/26/2009 @ 03:47PM PT
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"Before even considering the legal questions involved, the mind wanders to the COMMON SENSE QUESTION - if the test COULD PROVE innocence or guilt, and someone else is paying for it, why would the state deny it?"

This is an outrage against all that is fair in the guies of a ONE SIDED LAW & ORDER mentality.

Superman, where are YOU?

Posted by P Carlson on 07/20/2009 @ 11:02AM PT
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Author

Matt has worked and volunteered in various capacities in criminal justice reform for several years. When he's not blogging, he works as the Online Communications Manager at the Innocence Project. Views expressed here are Matt's, and don't represent the positions of the Innocence Project.