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March 2, 2009

Looks like DNA access debate has the Justices back in their typecast roles

The resolution of little complicated criminal justice issues, especially concerning jury trial right or statutory interpretation, have a way of producing surprising and unusual combinations of Justices.  But, when the death penalty or other high-profile criminal justice issues come to SCOTUS, the players all tend to assume their typecast left/right roles.  Today's arguments concerning prisoner access to DNA evidence, according to this AP account, seem to fit into the old mold:

On the one hand, the court's four liberal justices seemed to be in general agreement that prosecutors should open their evidence lockers when they contain genetic material that could reveal whether someone has been wrongly imprisoned. The numbers wouldn't be very large, Justice John Paul Stevens said.

On the other hand, the four conservatives were wary of deciding to allow DNA testing so broadly that "it appears that the prisoner is gaming the system," as Justice Samuel Alito said.  Convicts who pass up the chance to have genetic testing done at trial or who do not declare under oath that they are innocent could fall within Alito's description....

In the middle, as he often is, was Justice Anthony Kennedy.  Kennedy seemed willing to accept that any right to a DNA test would have to follow a claim of innocence, made under penalty of perjury. Yet he also was frustrated by the refusal of Assistant Alaska Attorney General Kenneth Rosenstein to say that Osborne could get what he wants if he swears to his innocence.

The full oral argument transcript for this case, District Attorney’s Office for the Third Judicial District, et al. v. Osborne, is available at this link.

March 2, 2009 at 05:17 PM | Permalink

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I find the conservatives' argument about "gaming the system" quite contrived. They seemed concerned that a defendant would deliberately not do a DNA test during trial, and if they lost at trial, do a DNA test for a "second bite at the apple." This doesn't make much sense to me. The criminal knows if he is innocent. If he is innocent, then he will insist on doing the DNA test, because it will ensure his acquittal, and he will not want to endure a few years in prison while he waits for the post-conviction remedies to prove his innocence. If he is guilty, then of course he won't do the DNA test at trial, but then what's the point of doing the DNA test afterwards? There might be some irrational people (perhaps including Osborne?) who want the DNA test just for fun, but I doubt that is particularly common. It's not really a second bite at the apple because there's no possible way he will actually win. I suppose the DNA test could be wielded strategically in order to delay an execution, but death row inmates are the extreme minority of prisoners in the United States.

I find Alaska's position here really irrational. They say they have an interest in "finality." But there's not much finality when there is this tantalizing DNA evidence that could definitively prove innocence or guilt, and the state litigates desperately to avoid the test. You test the DNA, you know for sure if he's guilty - that's "finality."

That said, I think Mr. Osborne's case is rather weak on the merits -- this is not very appropriate for a 42 U.S.C. 1983 action, given Heck v. Humphrey and the various other cases. I would favor a constitutional right to establish one's innocence via DNA testing, which is the position Judge Luttig took.

Posted by: Guest poster | Mar 2, 2009 5:27:20 PM

Their "type-cast roles"--yeah, the libs wanna make crap up as they go along, and the conservatives want to see the rule of law prevail.

Posted by: federalist | Mar 2, 2009 5:30:01 PM

federalist, I assume that by "typecast," Prof. Berman means that the 4 liberals are open to claims by prisoners, the 4 conservatives are hostile, and Justice Kennedy won't disclose how the coin flip turned out. I don't know much about the issues in this case, but if you have any detail to support your claim that the libs are making crap up in this case or that the law is against the prisoner here, I'd be interested in hearing it.

Posted by: ab | Mar 2, 2009 5:43:36 PM

I'm not sure this one divides on liberal/conservative lines. Justice Ginsburg didn't seem to be cutting Neufeld any slack.

Posted by: Kent Scheidegger | Mar 2, 2009 5:48:51 PM

Oh, I am sorry ab, I forgot about the free-floating right to DNA testing that the Constitution contains. I also must have missed the day in law school where they held that evidence in state custody, post-conviction, must be handed over simply because some convict wants to conduct a fishing expedition.

My bad. Of course, it really isn't surprising some of the stances of the libs. Breyer is on record saying that executions long after death sentences are imposed are unconstitutional, so what's a little more making stuff up? Stevens, why would one be surprised at his questioning at oral argument--he's the guy that said that because lethal injection didn't hurt that it was unconstitutional. Once you've bought into that one (and abandoned any credibility that he may have retained), then a blanket rule that convicts get to make the states jump through hoops on the criminal's say-so is not that much of a leap.

Perhaps, just perhaps, the four libs ought to look at the Kevin Cooper litigation. Post-conviction testing required by the feds ate up tons of time and resources (of course, despite the empty promises of some Ninth Circuit judges--I wonder what that arrogant judge would say to the surviving victim now that the sentence STILL has not been carried out).

I may be out on a cliff here, but I'm guessing the lib judges are not going to stake their credibility on this turkey's claim. They can handwring at oral argument, but when it comes time to put pen to paper, my guess is that very few will want to sign on to Osborne's claim.

Posted by: federalist | Mar 2, 2009 6:35:36 PM

No doubt the Founders carefully considered whether to enact a right to DNA testing and decided not to put it in the Constitution, right? The Constitution speaks in generalities -- "due process of law." It is one think to use those generalities as an excuse to deviate from the historical record. But for DNA evidence, there is no historical record. DNA is the most important evidentiary tool in the history of law enforcement. Until a few years ago, it was impossible to prove definitively someone's innocent after the fact; sure, a witness could come forward, but that was always suspect. Evidence and memories grew stale. But now, because of DNA, things have changed. It IS possible to prove innocence -- definitively.

For that reason, I believe it would be appropriate to construe the Due Process Clause to create a right to DNA testing. Such a right certainly falls comfortably within the text of the Due Process Clause. I do not understand why you think it is "making stuff up"; by the same token you can say it is "making stuff up" to prohibit warrantless searches of cars under the Fourth Amendment, because the Constitution does not mention cars. And incidentally, conservative jurists, such as former Judge Luttig, have taken that position.

I am sorry you are outraged about the DNA testing "eating up tons of resources." That is an exaggeration, especially given that the Innocence Project does it for free. You seem totally apathetic to the prospect of innocent people rotting behind bars.

Posted by: Guest poster | Mar 2, 2009 7:10:18 PM

To the contrary, Guest poster, the every one is innocent mentality obscures the situations where people truly innocent.

In any event, federalism, which is one issue raised by this case, HAS been around forever. And if you're going to talk about what the Founders would have done, well, wouldn't that put the modern administrative state in peril?

And I am not outraged by DNA testing "eating up tons of resources", what I am outraged by are do-gooder federal judges imposing burdens on the states that are not warranted by the Constitution. And all people who believe in accuracy should be outraged by the Kevin Cooper case. Outraged. I suspect though that most liberals think that a win's a win and don't really give a shit about how it's done.

In any event, should the victim here, in this case, have to worry about having to retestify if, down the road, some new trial is ordered (See House v. Bell). Should the state have to spend more resources to keep this criminal behind bars? I get that we should have a reliable means of correcting the convictions of the innocent. But creating some free-flowing constitutional right for characters like Osborne ain't the way to get it done.

But I suspect the goal of some liberals is not to get a few innocent people off--it's to create more work on the part of the state. Resources are always scarce, and if you make the state expend more resources holding onto its convictions, that's less for other activities.

Remember Strickland. See how that's metastasized into a rule that basically tosses tons of death sentences. Who would have thought that back when Strickland was decided? Well, God only knows where Osborne could lead if he is successful. I know you guys want that. But I don't.

Posted by: federalist | Mar 2, 2009 7:36:39 PM

Resources are always scares... too scarce for justice. The government is too scared of revealing how many prosecutions it got wrong. That's what it really is.

Posted by: George | Mar 2, 2009 7:52:44 PM

Yeah, George, that's right, prosecutors are evil people who are indifferent to the innocent suffering.

Posted by: federalist | Mar 2, 2009 8:04:24 PM

I didn't mention prosecutors. The object of finality is to retain faith in the system and the rule of law. It assumes a just result. The word "government" does not equal "prosecutors." A prosecutor can convict with good faith and still get it wrong. Most states allow post-conviction DNA testing. What's the problem?

Posted by: George | Mar 2, 2009 10:15:19 PM

George, look into the Kevin Cooper case. Enjoy!

Posted by: federalist | Mar 2, 2009 10:34:41 PM

For some reason, I seem to think the person seeking DNA testing here is named Osborne, not Cooper.

Posted by: Mark | Mar 2, 2009 11:24:08 PM

Federalist, considering it.

Considered it.

Pass, unless Kevin Cooper knows the scientific results of the DNA testing for Osborne.

Posted by: George | Mar 2, 2009 11:30:12 PM

Guest poster wrote: "I find the conservatives' argument about "gaming the system" quite contrived. They seemed concerned that a defendant would deliberately not do a DNA test during trial, and if they lost at trial, do a DNA test for a "second bite at the apple." This doesn't make much sense to me. The criminal knows if he is innocent. If he is innocent, then he will insist on doing the DNA test, because it will ensure his acquittal, and he will not want to endure a few years in prison while he waits for the post-conviction remedies to prove his innocence. If he is guilty, then of course he won't do the DNA test at trial, but then what's the point of doing the DNA test afterwards?"

Not to mention the fact that the prosecution--who possesses the evidence at trial--can test it if it believes it shows guilt, whether the defendant wants it tested or not. So I fail entirely to see how the failure of the evidence being tested at trial has to be the fault of the defendant. And, of course, given the evolving nature of technology, there will always be more modern tests years after conviction that can do what tests at the time of trial could not.

Given that there is zero--literally, zero--cost to the State in any of this, it's position is clearly irrational and arbitrary and violates substantive due process for this reason alone. No state interest is even arguably at stake. In a rational judiciary (which we do not have), the State loses, obviously and period.

Posted by: DK | Mar 3, 2009 1:11:29 AM

federalist wrote: "Yeah, George, that's right, prosecutors are evil people who are indifferent to the innocent suffering."

In my experience, this is essentially accurate. Either that, or they're really, really stupid. Most likely some combination of both.

Posted by: DK | Mar 3, 2009 1:14:01 AM

Further, the delay and expense to the state is entirely the fault of the state. If they had simply tested the DNA or turned it over to the Innocence Project for testing at their expense, the state would have incurred little or no cost, expended almost no time and had this issue resolved years ago.

I always find it amusing when the party causing the expense and delay complains that the process is too time consuming and expensive.

Posted by: Talitha | Mar 3, 2009 12:08:31 PM

Tabitha wrote: I always find it amusing when the party causing the expense and delay complains that the process is too time consuming and expensive.

Then death penalty abolitionists must never stop making you laugh.

Posted by: Ben | Mar 3, 2009 12:26:23 PM

Oh, I am sorry ab, I forgot about the free-floating right to DNA testing that the Constitution contains. I also must have missed the day in law school where they held that evidence in state custody, post-conviction, must be handed over simply because some convict wants to conduct a fishing expedition.

My post was meant as an actual question, not a criticism. I'm not terribly familiar with the arguments in the case discussed in the post, and based on your post I thought you might know a bit more. Apparently not.

That said, I'll take a look at the Kevin Cooper case.

Posted by: ab | Mar 3, 2009 12:53:41 PM

It is indeed an outrage that Kevin Cooper is still alive.

Posted by: ab | Mar 3, 2009 12:59:09 PM

Yes it is, ab, yes it is. Sorry I took your post as a criticism.

There really isn't much else to the case from what I posted. Convicts either get to demand DNA tests or they do not. Perhaps, the Court could leave open a situation where the state's action is completely bereft of any support and that the prisoner's claim is compelling. This case here seems like a slam dunk though.

As for Talitha, your comment is naivete bordering on outright ignorance. If we create the ability for criminals to start testing and retesting DNA evidence, they can demand it in every case, and in every case, you could argue "well, if they just tested the evidence" or turned it over. You can see how, in certain cases, this could be a huge huge headache. Compare Kevin Cooper.

Posted by: federalist | Mar 3, 2009 1:46:27 PM

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