District Attorney’s Office for the Third Judicial District v. Osborne

The Supreme Court has agreed to decide whether convicted criminals have a constitutional right to access evidence used at trial so they can conduct new DNA testing.

In March 1994, a jury in Alaska convicted William G. Osborne of kidnapping, assault and sexual assault. He was sentenced to 26 years in prison, with five years suspended. At the time of the trial, his lawyer did not seek the DNA testing of a condom and hairs found near the crime scene. Almost 10 years after his conviction, Osborne filed suit in federal court under 42 U.S.C. § 1983 to test the condom and hairs. State lawyers opposed the motion.

But in April 2008, a three-judge panel of U.S. Court of Appeals for the Ninth Circuit held that Osborne should be allowed to obtain new DNA tests.

“It remains a very real possibility that further DNA testing will be exculpatory and may even lead to Osborne’s exoneration,” the panel held.

Forty-four states and the District of Columbia have laws allowing inmates to obtain DNA for post-conviction testing, but Alaska is not one of them.

In asking the Supreme Court to review the case, attorneys for the state argued that “in essence, the [appeals] court created from whole cloth a Constitution-based, litigation-style discovery right. And the court chose to allow this right to be asserted outside the boundaries of any ongoing post- conviction litigation.”

On Nov. 3, the justices accepted the case for review.

Question presented: Whether a defendant may access a state’s biological evidence following a conviction under 42 U.S.C. 1983 or the Due Process Clause of the Fourteenth Amendment.

A divided Supreme Court ruled today that convicted criminals do not have a constitutional right to access evidence used at trial so they can conduct new DNA testing.

In March 1994, a jury in Alaska convicted William G. Osborne of kidnapping, assault and sexual assault. He was sentenced to 26 years in prison, with five years suspended. At the time of the trial, his lawyer did not seek the DNA testing of a condom and hairs found near the crime scene. Almost 10 years after his conviction, Osborne filed suit in federal court under 42 U.S.C. § 1983 to test the condom and hairs. State lawyers opposed the motion.

But in April 2008, a three-judge panel of U.S. Court of Appeals for the Ninth Circuit held that Osborne should be allowed to obtain new DNA tests.

“It remains a very real possibility that further DNA testing will be exculpatory and may even lead to Osborne’s exoneration,” the panel held.

Forty-four states and the District of Columbia have laws allowing inmates to obtain DNA for post-conviction testing, but Alaska is not one of them.

In asking the Supreme Court to review the case, attorneys for the state argued that “in essence, the [appeals] court created from whole cloth a Constitution-based, litigation-style discovery right. And the court chose to allow this right to be asserted outside the boundaries of any ongoing post- conviction litigation.”

On June 18, 2009, the Supreme Court reversed and remanded with Chief Justice John G. Roberts Jr. writing the opinion for the 5-4 court.

“To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response,” Roberts wrote for the majority.

Justice Samuel Alito filed a concurring opinion joined by Justice Anthony Kennedy and joined by Justice Clarence Thomas in part.

“I agree with the Court’s resolution of respondent’s constitutional claim. In my view, that claim also fails for two independent reasons beyond those given by the majority,” Alito wrote. “First, a state prisoner asserting a federal constitutional right to perform such testing must file a petition for a writ of habeas corpus…. Second, even though respondent did not exhaust his state remedies, his claim may be rejected on the merits because a defendant who declines the opportunity to perform DNA testing at trial for tactical reasons has no constitutional right to perform such testing after conviction.”

Justice John Paul Stevens filed a dissenting opinion, joined by Justice Ruth Bader Ginsburg and Stephen Breyer and in part by Justice David Souter. Justice Souter also filed a separate dissenting opinion.

“The DNA test Osborne seeks is a simple one, its cost modest, and its results uniquely precise. Yet for reasons the State has been unable or unwilling to articulate, it refuses to allow Osborne to test the evidence at his own expense and to thereby ascertain the truth once and for all,” Stevens wrote. “On two equally problematic grounds, the Court today blesses the State’s arbitrary denial of the evidence Osborne seeks.”

Question presented: Whether a defendant may access a state’s biological evidence following a conviction under 42 U.S.C. 1983 or the Due Process Clause of the Fourteenth Amendment.