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Court Limits Access to DNA Evidence
Justices Rule That Inmates Lack Constitutional Right to Testing

By Robert Barnes
Washington Post Staff Writer
Friday, June 19, 2009

Prisoners do not have a constitutional right to DNA testing after their conviction, the Supreme Court ruled yesterday, even though the technology provides an "unparalleled ability both to exonerate the wrongly convicted and to identify the guilty."

In the court's first examination of how to treat the rapidly evolving field of biological testing, Chief Justice John G. Roberts Jr. wrote for a majority that said it is up to the states and Congress to decide who has a right to testing that might prove innocence long after conviction.

The "challenges DNA technology poses to our criminal justice systems and our traditional notions of finality" are better left to elected officials than federal judges, Roberts wrote for the majority in a 5 to 4 decision.

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

The case was one of the most anticipated of the term, given the revolutionary role DNA testing has played in modern criminal proceedings. The Innocence Project, a group that represents those who say they have been wrongfully convicted, said such testing has exonerated 240 people nationwide, at least 17 of whom had been sentenced to die.

Dissenting justices, led by John Paul Stevens, said the right to post-conviction DNA testing should not depend on the widely varying laws enacted by the states. Allowing a prisoner to test DNA evidence at his own expense would "ascertain the truth once and for all," Stevens wrote.

"On the record before us, 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," he wrote. He was joined in dissent by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

The case at hand comes from Alaska, one of three states without a law allowing post-conviction access to biological evidence.

William G. Osborne was convicted of the brutal rape and assault of a prostitute in a secluded area near Anchorage International Airport in 1993. Osborne wanted to pay for a more discerning test of semen found in a condom at the crime scene, a test prosecutors agreed would almost definitively prove his guilt or innocence. But prosecutors refused to allow it, and Alaska courts agreed that Osborne did not qualify under the procedures they had established.

Osborne appealed to the federal courts, and the U.S. Court of Appeals for the 9th Circuit in San Francisco recognized a right to such testing under the due-process clause of the Fifth Amendment.

But Roberts, joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr., said that was wrongly decided. "A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man," he wrote, and thus states have more "flexibility" in deciding procedures for post-conviction relief.

The majority said Alaska's procedures seemed sufficient and there was no reason for federal courts to "leap ahead" of the states.

"Federal courts should not presume that state criminal procedures will be inadequate to deal with technological change," Roberts wrote. "The criminal justice system has historically accommodated new types of evidence, and is a time-tested means of carrying out society's interest in convicting the guilty while respecting individual rights."

Peter Neufeld of the Innocence Project, who argued Osborne's case before the court, said the decision will mean that "more innocent people will languish in prison" because they lack the legal right to DNA testing.

"Some state statutes are simply inadequate," he said, adding that the patchwork of state and federal laws regarding testing means there are prisoners who will not be able to gain access to testing that would prove them innocent.

For instance, Kentucky allows testing only for those on death row, not those sentenced to life imprisonment, Neufeld said. Other states withhold testing for those who have pleaded guilty, although Neufeld said 20 percent of those who have been exonerated by DNA testing had given up their assertions of innocence for strategic or other reasons.

Prosecutors had told the court that Osborne was not a good cause for those worried about the wrongly convicted. He was identified as the woman's attacker not just by her but by an accomplice. At trial, one test of the semen found at the crime scene said it could have come from Osborne but also from about 15 percent of the population of African American men.

But his attorney decided not to pursue more exacting testing at the time because of a fear that it would implicate him further. Since then, Osborne has both professed his innocence and, in an attempt to win parole, confessed to the crime. He is now back in prison on an armed-invasion conviction that came after his release.

Even within the court's narrow decision on Osborne, there were divisions within the two sides. Alito and Kennedy would go further than Roberts and hold that anyone who waived DNA testing at trial for tactical reasons has no right to pursue it after conviction.

And Souter declined to join the other dissenters in recognizing a constitutional right to the testing. He said he would rule for Osborne simply because Alaska's procedures for obtaining access to DNA evidence were insufficient.

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

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