Supreme Court Finds No Right to Post-Conviction DNA Tests
	By STEVE SHEPPARD
	Wednesday, July 8, 2009

In June, the Supreme Court ruled that a convicted rapist has no right to test the DNA in his trial evidence with new technology. Chief Justice Roberts lionized DNA testing's accuracy, yet still opined that because he thinks Congress and the states are embracing the use of DNA evidence well enough, "[t]here is no reason to constitutionalize the issue."

This approach confuses the role of the courts with the purposes of the Constitution, and – even more importantly – it confuses the rights of a convict with the state's obligation to ensure the due process of law. Until the Court overrules this decision, it will promote bureaucracy over truth and justice.

The Crime and the Trial

The facts in District Attorney v. Osborne are awful. In 1993, K.G., a woman in Anchorage, Alaska, was raped by two men and then shot. Left in the snow to die, she barely escaped alive.

In 1994, William Osborne, a Black man in Alaska, was convicted of those crimes. He was identified by the one known assailant and by the victim. At his trial, despite his claim of innocence and his alibi, Osborne's attorney was so sure he was guilty that she did not ask for the best available DNA test, for fear it would identify him.

The DNA test that was actually done, to two hairs and to fluids in a condom found at the scene, "matched" them to Osborne, but to a probability of only one out of six among black men.

Once in prison, Osborne confessed to the crime as a step toward seeking release on parole.

Osborne Seeks Superior DNA Testing

In 1997, Osborne sought fuller DNA testing, via a habeas corpus petition. The court denied it, saying the test's outcome could not overturn his conviction, which had been rendered in a fair trial with other evidence. The court did not, however, consider how the trial or sentencing might have gone had the DNA evidence shown that, in fact, someone else had committed the crime.

Osborne then sued in federal court, claiming a due process right to test (at his own expense) the DNA using newer, more perfect tests that could prove the samples either were or were not his own. If the tests proved that the samples were not his, he argued, then he would use the test results as new evidence of his actual innocence.

His petition was denied by the district court, but the U.S. Court of Appeals for the Ninth Circuit granted it. Senior Judge Brunnetti (a Reagan appointee) ruled that the prosecutor must disclose potentially exculpatory evidence even after a person is convicted, no matter how fair the conviction was.

The Constitution or the Court

Chief Justice Roberts, in yet another 5-4 opinion, ruled otherwise. While extolling the unique capability of new DNA testing to prove identity to a near-certainty, he then denied such testing in this case.

Roberts argued that Osborne retains few rights to prove his innocence, now that he has been convicted in a fair trial. Because Alaska would have let him have the evidence if he could have proven ahead of time that such evidence would prove his innocence, Roberts reasoned, that is fair enough for due process of law.

Further, Roberts concluded that Osborne has no general right to the evidence. Because most jurisdictions already allow convicts to test their evidence, Roberts saw no reason for the Court to recognize a constitutional right to do so.

Confusing the Court with the Constitution

This is not how due process of law is supposed to work. That a person has a legal protection somewhere in America can hardly mean the protection should not be a right everywhere.

The Chief Justice implies that a broad federal right would somehow prevent the states or Congress from developing the interests affected by that right, or articulating its detail. But in fact, a federal right would only bar the right's denial. That is what has happened with most rights that have been judicially articulated; the right is then given detail and application by Congress and the states. Were a federal right to be recognized, the courts would not determine what must be done, but rather rule on whether what is done is sufficient.

Chief Justice Roberts also confuses the Court's institutional role with its duty of constitutional articulation. The Court announced that it would decide whether due process allows a convict access to new methods to retest trial evidence that might exonerate the convict and prove another person committed the crime. Either the Constitution requires that access, or it does not. The institutional relationships of the courts to the other branches of government should not determine the meaning of the Constitution.

The Right Question for Due Process?

The essential due process inquiry is not whether Osborne has a right to test the evidence. As Justice Stevens's dissent contended, the real question is by what right the District Attorney can refuse to allow the test to identify the person who was actually at the scene of the crime.

The test of due process is fundamental fairness in the law. It is grossly unfair to allow an official to hide the identity of the true criminal from the person who was punished for the crime.

The possible results of such testing cannot justify the denial. The samples might confirm Osborne's guilt. If so, he has certainly worked to prove himself guilty. But, if the samples aren't his, then they would alter the meaning of all of the other evidence – and provide strong grounds for a new trial.

The Due Process of Law Cannot Promote Ignorance

The majority's real reasons for denial are to prevent the potential embarrassment that follows a false conviction, and to avoid the inconvenience of allowing prisoners across the country to ask for such tests. Justice Alito's solemn quest for finality in criminal cases reflects both of these inadequate reasons.

Yet finality cannot matter more than the truth. There is no justification for promoting the law's ignorance of the identity of a criminal. If the true identity of K.G.'s rapist is kept from the courts, the police, and the people, then due process promotes ignorance over knowledge.

That ignorance – which the Court's opinion ensures – harms not just Osborne but everyone in Anchorage, which still might have an uncaught rapist, and everyone in America, whose courts have proved that they will not allow a convict to prove his own innocence. That, in itself, must violate fairness. It certainly offends the conscience of the people. And it cannot be the process due under the law.

Steve Sheppard is the Judge Enfield Professor of Law at the University of Arkansas School of Law and author of I Do Solemnly Swear: The Moral Obligations of Legal Officials, just released by Cambridge University Press, among other works..