June 21, 2009
Osborne and the Right to Post-conviction DNA Testing (II)
On November 8, 2008, I outlined the issues in the Osborne case that the Supreme Court decided a few days ago (June 18, 2009). The Court avoided the core issue of whether a prisoner has a right to be released upon a showing that he is probably innocent of the crime for which he was convicted after a fair trial. It did so in a 5-4 decision by reasoning that even if this right exists, a prisoner has no due process right to test the DNA from the scene of a rape after the conviction when (1) the convicted offender did not seek
extensive DNA testing before trial even though it was available, (2) he had
other opportunities to prove his innocence after a final conviction
based on substantial evidence against him, (3) he had no new evidence
of innocence (only the hope that more extensive DNA testing than that done before the trial would exonerate him), and (4) even a finding that he was not source of the DNA would not conclusively demonstrate his innocence (obviously, a tough standard to meet). Unless the Court overrules itself, later courts will have to figure out which combination of these factors should be dispositive in future cases.
Chief Justice Roberts' opinion for the majority begins with the observation that "DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty." Sure, DNA evidence is highly probative in certain types of cases, but is it truly "unparalleled"? What happened to fingerprints as a biometric identifier? Is this another example of "DNA worship"?
Another oddity in the case is Justice Alito's remarks, in a concurring opinion, that the DNA sample here might be so small, degraded, and contaminated (because the condom sat outside for 24 hours) that a failure to find STR aleles matching Osborne would not mean much. To support this speculation, Justice Alito relied on some law review articles that noted that some fraction of DNA samples have these problems. Yet, there was enough undegraded material in the condom for HLA DQA testing (which linked Osborne to the sample) and, apparently, for RFLP testing (which Osborne's counsel chose not to pursue before trial). At a minimum, it would seem that the case could have been remanded for a determination of whether the DNA here was as degraded, contaminated, and limited as Justice Alito thought it could have been.
Obviously, these are minor points in the greater scheme of things. The majority opinion has been widely condemned (usually on the basis of very general statements about DNA testing and false convictions). Inspired, one surmises, by recent Justice-confirmation politics, the New York Times depicted the result as the work of a conservative bloc of Justices insensitive to the plight of real human beings.