First Bush, Now Obama: Department of Justice Opposes Inmate's Effort to Test DNA Evidence Used to Convict Him

Some commentators are criticizing the Obama administration's position in the case: District Attorney's Office for the Third Judicial District v. Osborne. The case involves an Alaska inmate's effort to obtain access to DNA evidence used to convict him of rape in 1994. Prevailing technology at the time could not establish his guilt or innocence with certainty; today, it would. The Office of the Solicitor General has adhered to Bush's position that the inmate does not have a constitutional right to re-test the DNA evidence, even though doing so could establish his innocence and despite the fact that his attorney will pay for the new scientific analysis of the evidence.

The Issues
Alaska is one of only six states where inmates do not have a post-conviction right to DNA evidence used to convict them. Osborne argues that he has a constitutional right to the evidence. The Ninth Circuit Court of Appeals agrees with him. The Supreme Court recently held oral arguments in the case.

The Supreme Court often looks to state law to determine whether "the people" have spoken on the existence of a constitutional right (this diminishes charges of "judicial activism"). Accordingly, the Court could view Alaska as an "outlier" and hold that due process requires that the state allow Osborne to test the DNA evidence. Post-conviction access to DNA evidence is particularly important in older convictions in which DNA analysts utilized primitive technology.

It is unclear what Alaska gains from its refusal to turn over the evidence. If the DNA analysis determines that Osborne is a rapist, the case ends. If not, then justice requires his release from prison. Osborne has secured pro bono legal representation, and his lawyers have offered to pay for the DNA testing.

Some prosecutors, however, have been defiant even when DNA establishes an inmate's innocence (or at least demonstrates that the individual is not guilty). In 2002, a federal court in Pennsylvania ruled -- in a strikingly similar case -- that the inmate, who was convicted of raping two women, had a post-conviction right to re-test the DNA evidence. The DNA screening proved that the same person raped the two women -- but that the inmate was not the rapist. The prosecutor still refused to accept the results.

Another series of test showed that the inmate was not the rapist, but the prosecutor again refused to believe that he was innocent. The prosecutor nevertheless asked the judge to release the inmate because he did not have sufficient evidence to prove his guilt.

Obama and DNA Rights
As a state senator, Obama sponsored and lobbied for legislation that gave all inmates a post-conviction right to DNA evidence -- the same right that Osborne asserts in this case. The government's position does not prevent states from passing laws to establish this right in the future; instead, it seeks to rebut the inmate's argument that due process establishes this right.

The Bush administration was not required to take a position in this case. Although the Bush administration decided to submit a brief in the case, the Obama administration could have refused to defend it, withdrawn it, or even switched position. And while the Solicitor General has a culture of maintaining the same positions as the previous administration in pending cases, critics argue that the issues this case raises are so substantial that the Obama administration could have legitimately abandoned Bush's argument.

Final Words
I believe that inmates should have the right to test DNA evidence used to convict them. They certainly should have the right to test the evidence prior to a conviction. The issue of cost is not relevant in this particular case, because Osborne's lawyers will pay for the DNA analysis. Because I strongly believe in due process and because science can answer the question of guilt or innocence, I believe that the Court should rule against Alaska and reject the Bush-Obama arguments.

William Sessions, a former federal judge and Director of the FBI during the Reagan administration, has a very passionate take on the case that appears on Slate.Com. I close this essay with a slice of Sessions' argument:

It's a generally laudatory goal for a new president to continue the DoJ polices of the previous one when he takes office. But a change in position may be warranted in some cases. Osborne is one of them. The Justice Department's decision is particularly perplexing because when President Obama was an Illinois state senator, he responded to that state's wrongful conviction problem by leading a bipartisan effort to help prevent convictions of the innocent, including laws allowing access to DNA evidence.

Evidence of innocence does—and must—matter to all of us, whenever it is presented. I have no idea whether Osborne is guilty. If the DNA shows that he is, so be it. But what if it shows he is not? Wouldn't victims of crime want to know if the wrong person is imprisoned, and the real perpetrator is still on the streets, free to commit more crimes? Wouldn't all of us want to know this?

Former Attorney General John Ashcroft has called DNA the "truth machine of law enforcement." Why should our criminal justice system be afraid of that truth machine? . . . .

Note: The SCOTUS Blog contains excellent coverage of this issue. Law.Com also has helpful analysis.