The Supreme Court Denies The Right to DNA Testing

The U.S. Supreme Court today ruled 5-4 against William Osborne, an Alaska prisoner seeking DNA tests that he says will prove his innocence. Almost everyone who looks at the case, including Alaska prosecutors who have repeatedly denied Osborne access to tests, say that the tests could indeed definitively prove innocence or guilt. Before even considering the legal questions involved, the mind wanders to the common sense question - if the test could prove innocence or guilt, and someone else is paying for it, why would the state deny it?

Alaska officials claim it's a procedural issue, that if they grant testing to Osborne the floodgates swing open and everyone suddenly wants a test. That's an old argument and it's nonsense. Only seven people have ever sought post-conviction DNA testing Alaska. Some floodgates.

The split decision in the Supreme Court today hinged on Anthony Kennedy, who chose to swing the wrong way today. (It was the usual split: Roberts, Scalia, Alito, Thomas and Kennedy voted against Osborne while Ginsburg, Breyer, Souter and Stevens said his due process rights had been violated).

The majority wrote that states are handling DNA requests just fine and that federal courts shouldn't get involved. (They didn't go so far as to definitively say there is no due process right to DNA testing, however.) I would argue that most states are handling DNA access acceptably; 47 have laws granting DNA access in at least some cases, Alaska is one of the three without (Oklahoma and Massachusetts (!) are the other two). When three states fail to grant a common-sense civil right with very little downside, that's exactly the time to seek constitutional protections like due process.

And in a sign of the chasm between today's court decision and reality, Attorney General Eric Holder issued an encouraging statement clarifying the difference between the court's limited legal position and good policy on DNA testing.

"The Court merely spoke about what is constitutional, not what is good policy. And there is a fundamental difference....," Holder said. "For that reason, this administration believes that defendants should be permitted access to DNA evidence in a range of circumstances."

Andrew Cohen agreed with Holder, writing at CBS Court Watch that today's decision was expected, but that five conservative judges can't stop the positive reforms that DNA testing will continue to bring to our courts.

If anything, despite Thursday’s expected setback at the High Court, the DNA movement may pick up more steam now that economic conditions are so tough on criminal justice budgets. What prosecutor out there wants to waste precious time, money and resources pursuing a rape or murder case without ensuring the reliability of the forensic evidence? What prison official wants to fill his or her already-overcrowded prison with men who have plausible claims of innocence and who haven’t been tested to make sure? State governments are releasing guilty people to save costs; where’s the incentive keep innocent people in prison?

Sometimes, the Supreme Court is at the vanguard of big changes in the law. Sometimes it merely follows. The Osborne ruling tells us that at least five of our current Justices are going to have to be dragged, kicking and screaming, into the new day.

Get the full decision, and more background on the case, at the Innocence Project website.

(Full disclosure: when I'm not blogging here at change.org I work as the online communications manager at the Innocence Project, which represents Osborne and argued the case in the Supreme Court. Views expressed here are my own.)