A Misguided Decision and the Path Forward

In an already much-criticized decision, the U.S. Supreme Court ruled 5-4 last week that Innocence Project client William Osborne could not use the federal civil rights law to obtain DNA testing for the purpose of proving his innocence of the rape for which he was convicted and sent to prison in 1994. The decision was disappointing and surprising given the broad national consensus about DNA testing's unprecedented capabilities to exonerate the innocent. But the court ultimately decided that principles of finality and deference to state law trumped fundamental fairness, even where scientific proof of actual innocence is concerned.

As a practical matter, the impact of the decision will fortunately be quite limited, at least in terms of the numbers of innocent prisoners affected. Most of our clients seeking DNA testing are able to get it through state court orders or the consent of prosecutors. The federal-court option that we sought in Osborne has been necessary only when a state has no procedure making DNA testing available, or when a defendant is for some reason excluded from applying for testing under state law (for example, some states limit their DNA testing laws to death row inmates, so that someone "only" serving life in prison cannot get testing). It is very likely that Osborne will close the federal courthouse doors to at least some innocent prisoners who cannot get testing under state law - some of whom may spend their lives in prison, or even be executed, as a result.

On the other hand, the Supreme Court clearly didn't rule out a federal right to DNA testing in future cases. While the majority found that no general "substantive" right to DNA testing existed under the Due Process Clause, it walked a far more careful line when considering the "procedural" due process right that Osborne also claimed. Ultimately, the court decided that Osborne's own constitutional rights were not violated because - even though his request for DNA testing had repeatedly been turned down in the Alaska courts -- Alaska law still had some other post-conviction procedures that Osborne had not yet tried.

Osborne's case was also unusual in that he has waged a decade-long battle to get DNA testing, even though there is no dispute that favorable test results would prove his innocence. Because Osborne was convicted of a rape in which the perpetrator's semen was recovered from the scene, a simple DNA test can determine with absolute certainty whether or not he committed the crime. The Innocence Project also offered to pay for all testing from a small fund made possible by our donors, so cost was a non-issue. (You can read more background on the case on the Innocence Project website here.)

Many of the judges who heard the case before it reached the Supreme Court were as puzzled as we were as to why Alaska officials wouldn't simply grant the test. When Ninth Circuit judges repeatedly asked this question during oral arguments, the state's attorneys said they were not "willing or able" to answer it. The Ninth Circuit ruled in our favor, finding that the State's refusal to allow DNA testing was arbitrary, and that Osborne had the right to test the evidence under Section 1983 of the Civil Rights Act of 1871.

The state of Alaska then abruptly changed course. In asking the Supreme Court to take the case, the state admitted that test results favorable to Osborne "would conclusively establish [Osborne's] innocence." But they argued, instead, that federal courts still had no business overruling a prosecutor's refusal to allow DNA testing, and that unless Osborne could convince the state courts to order it, he was out of luck. For those who aren't familiar with the Roberts Court's devotion to states' rights principles - and even for avid court-watchers who are -- that approach can be hard to understand, particularly when it comes at the expense of a just result. As the dissenters noted, there seems no reason to require still further litigation in state court when a "uniquely precise" DNA test could quickly "ascertain the truth once and for all."

Although the State's objections carried the day in Osborne's case, he and other prisoners seeking DNA testing should get significant momentum from other aspects of the court's decision - and from an ever-growing national consensus on this issue. The court repeatedly cited DNA testing's "unparalleled" ability to exonerate the innocent, and praised those states that (unlike Alaska) have already enacted laws providing prisoners with a statutory right of access to this uniquely probative technology.

Even the nation's leading prosecutors were quick to emphasize that Osborne should not be read to deny prisoners' access to potentially exculpatory DNA evidence. Attorney General Eric Holder issued a statement reiterating the Justice Department's commitment to broad DNA access -- noting that the court had ruled out only a "substantive due process" right to DNA testing, and that "simply because a course of action is constitutional does not make it wise." The executive director of the National District Attorney's Association agreed, saying, "if there's any question at all" about a prisoner's innocence, "and there's any way that a forensic test could be helpful, I think the vast majority of prosecutors, and Americans," would agree that it should be done. 

The Innocence Project is more determined than ever to turn these promises into reality for our clients. We will continue to vigorously pursue their claims for DNA testing in state courts whenever that option is available. Fortunately, Alaska is one of the last three states without a DNA access law, and we are working hard to change that (the other two states are Massachusetts and Oklahoma). We will also redouble our efforts to fix the significant limitations that exist in other states' DNA testing laws. For his part, Mr. Osborne will soon file a new request for DNA testing in the Alaska courts - and the Supreme Court's decision expressly inviting him to do so may mean that he finally gets the DNA testing he has sought for the last decade, rather than more procedural objections from the prosecutors who have thus far opposed him.