Supreme Court closely divided on felon's right to DNA test

McClatchy NewspapersMarch 2, 2009 

WASHINGTON — Supreme Court justices appeared closely divided Monday over claims by an Alaska inmate that the Constitution guarantees a right to post-conviction DNA testing.

The court's most conservative members are clearly aligned against inmate William Osborne, who was convicted of assaulting a prostitute known only as K.G. The court's most liberal members sounded sympathetic to expanded testing. At most, the odds appear to favor a narrow decision.

"This is a particularly poor candidate for recognizing a new constitutional right," Deputy Solicitor General Neal Katyal, an Obama appointee, told the court.

Forty-four states already permit convicts to demand DNA testing, though the states apply different requirements. Since 1989, 232 convicted felons have been exonerated because of DNA testing.

"All they're getting is a darn test," attorney Peter Neufeld, co-founder of the Innocence Project, told the court Monday morning. "And they're staying in prison while they get that darn test."

Alaska is one of only six states not to have its own explicit DNA testing law. Even the states that do have such laws are resisting arguments that the Supreme Court should use the case called District Attorney's Office v. Osborne to extend such testing requirements nationwide.

Chief Justice John G. Roberts questioned Monday whether it makes "sense for us to devise a constitutional way to displace what the states have done." Katyal, on behalf of the Obama administration, agreed that the court "should not constitutionalize" a legal policy being worked out by individual states.

"DNA testing is not a crystal ball of guilt or innocence," California Deputy Attorney General Michael Chamberlain agreed in a brief, filed on behalf of several dozen states, including Florida and Washington. "In many cases, DNA testing after conviction would be a meaningless exercise."

The crime at the heart of the case heard Monday occurred in March 1993. Prosecutors say Osborne and a friend solicited K.G. for $100. Prosecutors say the men then drove K.G. to a secluded site near Anchorage International Airport, robbed her at gunpoint, raped her, beat her and shot at her.

Osborne's trial attorney didn't ask for the most sophisticated possible DNA testing at the time, which might have definitively proven guilt or innocence.

"I assume she was concerned it would show his guilt beyond a reasonable doubt," Roberts said, suggesting that Osborne shouldn't now have a chance to revisit his attorney's "tactical decision."

Justices Samuel Alito and Anthony Kennedy added their fears that inmates like Osborne might try to "game" the system if permitted to ask for DNA testing after a trial in which they had forgone such a test.

If the court's centrists are persuaded to expand DNA testing nationwide, the oral argument Monday made clear that some kind of conditions will be attached. Several justices, in particular, cited the possibility of requiring the inmate to swear under oath that he or she is innocent. That way, potential perjury charges would make the prisoner think twice about asking for a DNA test.

"(Osborne) has never made a declaration under penalty of perjury that he is innocent," Alaska's assistant attorney general, Kenneth M. Rosenstein, told the court. "He seems to be, for lack of a better word, fishing for evidence that might help him."

Osborne, under oath, confessed his guilt to an Alaska parole board. Neufeld said that confession was made as a condition of winning early release from prison.

"Isn't it true that we've had DNA cases where the person has been found innocent despite the fact that they confessed?" Justice John Paul Stevens asked.

Osborne himself is back in prison. His parole was revoked after he was rearrested in December 2007 on charges of kidnapping, burglary and assault following an alleged home invasion robbery.

Justices David Souter and Ruth Bader Ginsburg appeared most vocally sympathetic to Neufeld's arguments, while Justice Antonin Scalia was even more vehement than Roberts and Alito in voicing skepticism.

MORE FROM MCCLATCHY

Obama's legal changes may be fewer than expected

Supreme Court to hear Valdez tax case

Ginsburg's cancer prompts talk of who's next on Supreme Court

Medical marijuana raid raises question: What's Obama policy?

Obama restores some of the 'Freedom' to FOIA

McClatchy Newspapers 2009

McClatchy Washington Bureau is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere in the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. Thank you for taking the time to offer your thoughts.

Commenting FAQs | Terms of Service