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June 18, 2009

SCOTUS hands down opinion in a few of its final criminal law cases, including DNA access ruling

The Supreme Court's term is winding down, and thanks to live-blogging by SCOTUSblog I can report on the basics of the criminal law rulings that the Justices handed down this morning:

The Court has released the opinion in Yeager v. United States (08-67): Reversed and remanded, with Justice Stevens writing for the 6-3 Court. Justice Kennedy concurs in part and in judgment, Scalia dissents joined by Thomas and Alito, Alito dissents joined by Scalia and Thomas.  The opinion in Yeager is available here.

The Court has released the opinion in District Attorney's Office for the Third Judicial District, et al. v. Osborne (08-6): reversed and remanded with Justice Roberts for a 5-4 Court.   Justice Alito filed a concurring opinion joined by Justice Kennedy and joined by Thomas in part. Justice Stevens filed a dissenting opinion, joined by Ginsburg and Breyer and in part by Justice Souter. Justice Souter filed a dissenting opinion. The opinion is available here.

I am on the road most of today (and also most interested right now in another national institution), so others will have to comment on anything blockbuster to be found in these rulings.  I hope to be able to jump in with some comments late tonight.  In the meantime, here is early SCOTUSblog coverage of the Osborne DNA ruling:

Chief Justice John G. Roberts, Jr., writing for the majority in District Attorney’s Office v. Osborne (08-6), noted that DNA testing provides “an unparalleled ability” to prove innocence or guilt, but its availability “cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt.”  The task of writing rules to control access to DNA evidence “belongs primarily” to the legislature, the Chief Justice wrote.

Three of the Justices who joined the majority said in a separate opinion that they would have gone further in rejecting the DNA access claim in the case, saying that such claims should not be pursued in a civil rights lawsuit, but through a habeas plea — but then only after trying the challenge in state court. Moreover, those three, in an opinion written by Justice Samuel A. Alito, Jr., said that, if a defense lawyer fails to seek DNA testing during trial, and does so for tactical reasons, there is no constitutional right to seek access following conviction.

June 18, 2009 at 10:20 AM | Permalink


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As a defense attorney the Yeager case seems as if it would be useful in sentencing especially in the currently allowed use of acquitted conduct as relevant conduct to increase guideline calculations.

Posted by: Mike Powell | Jun 18, 2009 12:58:26 PM

Although I think the current acquitted conduct policy is morally repugnant, I do not see how Yeager changes anything.

Posted by: Marc Shepherd | Jun 18, 2009 2:49:22 PM

In Osborne, there seems to be a disconnect between the majority opinion and Souter's dissent. The majority claims that Osborne never availed himself of the state's procedures: "If he simply seeks the DNA through the State’s discovery procedures, he might well get it. If he does not, it may be for a perfectly adequate reason."

Souter, however, suggests that Osborne has attempted to obtain it through the state's procedures, but that such procedures were inadequate: "Osborne’s objection here is not only to the content of the State’s terms and conditions, but also to the adequacy of Alaska’s official machinery in applying them." Souter further states that "even on its own terms" the State has provided no reason for denying Osborne access to the DNA.

So, the majority is basically telling Osborne to use the state's established discovery procedures. ("These procedures are adequate on their face, and without trying them, Osborne can hardly complain that they do not work in practice.") Conversely, Souter believes that the state's procedures are inadequate. ("[T]he due process guarantee requires the State to provide an effective procedure for proving entitlement to relief under that scheme, and the State has failed.").

So, as someone not intimately familiar with the case, I have the following questions:

1) Who is correct? Has Osborne attempted to obtain the DNA through the state's habeas discovery procedures? I thought he did not.
2) If not, why?
3) If Osborne does as the majority suggests and seeks the DNA through the state's procedures, does anyone in the know about Alaska law have speculation on whether he will be successful? At oral argument, the government suggested it might object on procedural default grounds.

To me, it is ridiculous that Alaska wouldn’t just simply turn over the DNA that would, at no expense to the state, settle once and for all whether Osborne is guilty.

Posted by: DEJ | Jun 18, 2009 7:12:52 PM

"To me, it is ridiculous that Alaska wouldn’t just simply turn over the DNA that would, at no expense to the state, settle once and for all whether Osborne is guilty."

It has been some time since I looked at the underlying case but my recollection is that absence of evidence is not evidence of absence. IIRC the crime scene was not pristine and there was a possibility of another person being involved. So just because the DNA comes up negative, doesn't mean he wasn't involved.

As for the other point I thought he had availed himself of Alaska's procedures.

Posted by: Daniel | Jun 18, 2009 7:30:15 PM

Randall Cavanaugh, state appointed attorney for state proceedings. local counsel (one of two) for Osborne as to the 1983 action. I/P out of New York was doing the 1983.

I asked for post-conviction dna for the client through the state's post-conviction practice that they said replaced the state of writ of habeas (which they are now back tracking). They are stating I did not cite a particular state statute. Nor was the statute raised until the United States Supreme Court, reply brief. The state belatedly, after losing in federal court, stated there was no "affidavit of innocence" filed (which is disputed). At oral argument, the state said we can go back to state court and file under the statute with an affidavit innocence. So expect round three to begin soon. It is clear the majority did not want to answer some difficult questions, therefore, used a "failure to exhaust remedies" as a means sending back the case to state court.

Posted by: randall | Jun 18, 2009 8:16:53 PM

"...such claims should not be pursued in a civil rights lawsuit, but through a habeas plea — but then only after trying the challenge in state court."

Does that holding increase or decrease lawyer jobs?

Posted by: Supremacy Claus | Jun 18, 2009 9:46:54 PM

sc, the holding increases lawyers jobs, for which I am thankful. Over the years I have made a fortune defending the accused: the more crime the better. I am the classic rent-seeking, cult criminal lawyer. The more Congress, the courts, and the states increase punishments, and the more they eliminate rights of the accused, the happier I am because of the higher fees I can charge. I love it and say bring it on!

Posted by: anon | Jun 18, 2009 9:59:40 PM

give us a break, randall, your guy did it. The state gave him his shot at trial--he didn't request further testing. The state shouldn't be forced to give him two chances.

Posted by: federalist | Jun 18, 2009 10:51:31 PM

Ah, the "Except If We Think You Did It" exception to the Constitution. Beloved and respected by many a judge.

Posted by: CN | Jun 18, 2009 11:31:16 PM

Anon: My compliments on your candor and on your not being a weasel, hiding behind the appearance of virtue and lying about its being about only the Constitution.

Posted by: Supremacy Claus | Jun 19, 2009 12:04:04 AM

I was waiting for a decision in Melendez-Diaz v. Massachusetts which involves hearsay reports. This was argued in November. Anyone know what happened to that case? To be re-argued perhaps?

Posted by: mpb | Jun 19, 2009 9:47:28 AM

@mpb: I also have been interested in Melendez (and waiting quite a while). I have no reason to believe the case won't be decided this term (i.e., next week, or the following Monday at the latest). I'm not sure what has happened in the interim that would require reargument.

I am assuming it is just contentious and the majority/dissent are going through multiple rounds of edits. Although it is really just speculation, my pet theory is that the opinions will involve heavy citation of historical practice in arguing about what is/is not "testimonial," and the delay is in part the result of the fact that it is tricky and labor intensive to marshal that kind of historical evidence and neither side wants to make any mistakes. Or maybe it is just assigned to a slow-poke. I wonder who the slowest writing Justice is?

Posted by: Observer | Jun 19, 2009 10:02:32 AM

Count me also among those waiting for M-D. My own pet theory is that Scalia is writing (he hasn't written an opinion from that sitting and he's the champion of the Confrontation clause) but that he needs Kennedy as a 5th vote and he's having a hard time with it, given all of Kennedy's hand wringing at oral. Or the other possibility is that it's going to be unanimous and controversial and they are saving it to the last so they can skip out of town afterwards.

Posted by: Daniel | Jun 19, 2009 10:16:28 AM

Ah, the "Except If We Think You Did It" exception to the Constitution. Beloved and respected by many a judge.

Cute. Problem is, of course, in the real world, this rapist scum was convicted in a fair trial.

Posted by: federalist | Jun 19, 2009 11:03:45 AM

Many defendants have been convicted in a fair trial, yet exonerated by evidence (DNA or otherwise) that later comes to light. It is entirely possible to convict an innocent person in a trial free of constitutional error.

If a defendant receives a fair trial with the evidence and technology then available, that might forever satisfy your conscience, Federalist, but it does not necessarily mark the end of due process.

Posted by: CN | Jun 19, 2009 12:28:12 PM

When an innocent man is in prison, a murderer is free to strike again. We do not need The Supreme Court or the US Constitution as a guide in this case? Take the test for God's sakes!

Posted by: Honest Opinion | Jun 19, 2009 12:46:26 PM

Thanks randall. With that response, I think Souter has the best argument of all the opinions. Best of luck on Round 3.

Posted by: DEJ | Jun 19, 2009 1:02:12 PM

Apparently, CN, you don't live in a world of competing priorities. When you say "many defendants" you are talking about a very low percentage. And so, on the say-so of a guy who (a) confessed to his crime, (b) did not push for more detailed testing that (if he is to be believed now) would have exonerated him and (c) had a hell of a lot of additional evidence against him, we're going to re-open this case. Does the name, Kevin Cooper, mean anything to you?

Posted by: federalist | Jun 19, 2009 1:08:13 PM

DEJ, problem is, of course, that it's somewhat unseemly for a Supreme Court Justice to dismiss the fact that Osborne's litigation position is diametrically opposed to his statements in front of the Parole Board.

Posted by: federalist | Jun 19, 2009 1:40:23 PM

Federalist, I'm not sure I understand the point you're making about "competing priorities." Are you saying that because only a very small percentege of defendants are wrongfully convicted, we need not make any provision for those who might be? Are you saying that constitutional rights must compete against -- and thus can lose out to -- other governmental priorities? ("The Fourth Amendment required us to get a warrant to enter your house, but the legislature didn't have the money to hire enough judges to issue warrants, so tough luck.") Just trying to figure out where you're coming from.

And let's be clear on what we're arguing about: Osborne claimed he had a right to test, at his own expense, physical evidence using means more advanced than existed at the time of his trial. Period. Your talk about "re-opening" the case, additional evidence, and Kevin Cooper is not relevant to the constitutional question decided by the Supreme Court, and indeed was not relied on by the Supreme Court.

Posted by: CN | Jun 19, 2009 1:54:25 PM

CN, my point, of course, is that forcing the state to reopen cases has costs--ever stop to think that making the states deal with BS claims like Osborne's delay the states' ability to correct real injustices? This guy had a chance, at trial, to get better testing, yet chose not to. I don't see why he then gets to demand that the state expend more resources to deal with his late claim. Waiver, ever hear of it?
Kevin Cooper's case is relevant. There, a huge amount of resources (state, judicial and defense) were expended to confirm what anyone with half a brain already knew (obviously, that excluded some distinguished jurists on the Ninth Circuit), that he was guilty. You may see that as really cool. But maybe, just maybe, those wasted resources could have been better spent.

Posted by: federalist | Jun 19, 2009 2:03:12 PM

Of course, those resources were only spent becuase the State spent so much time fighting Cooper's requests. If they had just done what he wanted, it would have been a lot cheaper.

Posted by: Anon | Jun 19, 2009 2:13:56 PM

yeah, anon, the state has to jump whenever some convicted criminal decides to have a lawsuit--you clown yourself with nonsense like that

Posted by: federalist | Jun 19, 2009 2:17:10 PM

Osborne had a chance, at trial, to get better testing, but his ATTORNEY chose not to. It's right there in the Supreme Court opinion: Osborne's claim in state court was that his attorney was constitutionally ineffective for not seeking more accurate testing.

Now, you may see this claim as a BS claim. But surely you understand the circularity of arguing that Osborne's claim that his attorney should have sought better testing is BS because his attorney did not seek better testing.

Posted by: CN | Jun 19, 2009 2:26:29 PM

Yeah, CN, you got me. Only of course, if you believe this lying criminal over his attorney.

As for the circularity, the point is, of course, that he had his chance and didn't take it. That kinda tells ya something. Usually, the possibility of an attempted murder conviction focuses the mind. An innocent person would have been screaming for the test. He was not.

Posted by: federalist | Jun 19, 2009 2:40:29 PM

I don't always agree with Federalist but I do on this point. I'm not sure where you are coming from CN. As far as I know, no court has ever given any credence to Osborne's claim that his counsel was ineffective because of the choice HIS attorney made regarding trial strategy.

There is an argument to made that this decision by the attorney, while not ineffective, shouldn't be the end of the matter. That's a point on which reasonable people can disagree. But it's not a point that relevant to the decision by the SC. Souter isn't claiming the attorney was ineffective, Souter is claiming that the opportunities to get another bite at the apple in Alaska is not constitutionally sufficient. That seems to me a highly technical point on which I am not qualified to judge.

Posted by: Daniel | Jun 19, 2009 3:09:42 PM

I agree with Federalist, although on more limited grounds. If DNA evidence would conclusively resolve the case, I think Osborne ought to get it, regardless of the tactical decisions his lawyer made at trial.

But there is overwhelming evidence linking Osborne to this crime. It isn't just a "he said–she said case." Even if the DNA evidence goes his way, it doesn't really exonerate him. That, I think, is why Alaska is opposing his request. Also, they properly object on principle to the idea of being compelled to defend a S.1983 action in Federal Court, on a matter that is traditionally a state prerogative.

Posted by: Marc Shepherd | Jun 19, 2009 3:13:07 PM

It is the standard of due care of all criminals today to watch CSI, and to know modern forensic technology.

Posted by: Supremacy Claus | Jun 19, 2009 3:57:12 PM

Awesome: the "He Wasn't Screaming For It" exception to the Constitution. I learn all sorts of things in the comments to this blog.

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