Justices Debate Convict's Right to DNA Test

Questions Focus on Prisoner's Motives, Alaska's Refusal to Grant Access to Evidence

If Supreme Court justices are going to create a constitutional right for convicts to have access to the DNA evidence in their cases, some of them would like to know that the prisoner is at least willing to swear that he is innocent.

Yesterday's arguments on whether Alaska must supply DNA evidence that convicted rapist William G. Osborne contends could exonerate him carry national implications. But the conservatives on the bench kept coming back to whether Osborne himself was much of a test case.

Osborne has never sworn under threat of perjury that he did not attack and leave for dead a prostitute in 1993, Alaska Assistant Attorney General Kenneth M. Rosenstein told the court, and confessed to a parole board when he was trying to win his freedom.

Justice Antonin Scalia was "struck" by Osborne's affidavit about why he wanted to test the contents of a condom used in the attack.

" 'I have no doubt whatsoever that retesting of the condom will prove once and for all time,' -- and one expects to follow, 'my innocence,' " Scalia said. "That's not what it says. 'Will prove once and for all time either my guilt or innocence.' "

Scalia added, "I mean, you know, what is this?"

Osborne's attorney, Peter J. Neufeld of the Innocence Project, said that Osborne had never been asked to swear to his innocence. But, he added, Alaska was not blocking access to the evidence because of that.

"This is the very first case litigated to our knowledge anywhere in the country where the prosecutor concedes that a DNA [test] would be absolutely slam-dunk dispositive of innocence, but doesn't consent to it," said Neufeld, who told the court that nationally, 232 people have been exonerated by DNA testing after their convictions.

The liberals on the court seemed puzzled about why Alaska, or any other jurisdiction, would object to letting Osborne test the DNA at his own expense if it would clearly establish his guilt or innocence, as the state has acknowledged.

Justice Stephen G. Breyer told Rosenstein he would like to clear away the "undergrowth" of the state's arguments about its own rules of procedure to get to the constitutional question of whether Osborne has a right to the evidence.

"Why don't you give it to him?" Breyer asked.

"Because, your honor, the state of Alaska has a procedure that was not invoked in the -- " Rosenstein began.

"That's the undergrowth I tried to clear away," Breyer interjected.

Justice John Paul Stevens was skeptical of the argument by Deputy Solicitor General Neal K. Katyal -- representing the federal government and extending an argument first made by the Bush administration -- that recognizing a constitutional right to post-conviction DNA testing would "open the floodgates" for challenges.

Katyal said that only Alaska and five other states had not enacted statutes governing DNA testing, and that the issue was best left to the states and Congress to enact their own procedures. Accepting the decision of the U.S. Court of Appeals for the 9th Circuit on Osborne's behalf would endanger Congress's own Innocence Protection Act, Katyal said, which includes a requirement that the prisoner swear to innocence under threat of perjury.

Chief Justice John G. Roberts Jr. said the perjury requirement might help "if we're writing up a new constitutional right." But he said such a right could create endless litigation for the court about, for instance, whether it extends to those who have confessed or whether it can be constantly invoked as technology advances.

"Does it make sense for us to devise a constitutional right to displace what the legislatures have done?" Roberts asked.

Justice Samuel A. Alito Jr. worried that the right would be exploited by those who "game" the system. A defendant could refuse, for instance, to test DNA at his trial that might prove his guilt or innocence. If convicted, he would then have the option to reopen the case for testing.

Justice Anthony M. Kennedy, often the swing vote, showed signs of agreeing with both sides. He agreed with Alito about the potential for gaming the system.

But he also seemed concerned that prosecutors are the ones to decide when testing would be allowed.

He asked Rosenstein whether he would be willing to put aside procedural measures and order DNA testing in a particular case "simply because of your interest in not confining innocent people."

When Rosenstein said it was "conceivable" that he would, Kennedy responded: "All you can say in answer to my question is, to your particular approach to your duties here, is that that's 'conceivable'? "

The case is District Attorney's Office for the Third Judicial District v. Osborne.