But one of the book's authors, Peter Neufeld, was “feeling less than honored” by this nod from the Court:
Part of the problem was what he called an irony. [¶] In 2009, Justice Kennedy joined the majority opinion in a 5-to-4 decision that said prisoners had no constitutional right to DNA testing that might prove their innocence. Mr. Neufeld, who founded the Innocence Project with Barry Scheck, represented the prisoner on the losing end of that case, District Attorney’s Office v. Osborne.Adam Liptak, Cited by a Justice, But Feeling Less Than Honored, N.Y. Times, June 11, 2013, at A15.
But last week, Mr. Neufeld said, Justice Kennedy concluded that “it’s O.K. for the state to take DNA, without a warrant, from mere arrestees, who may ultimately have their charges dismissed.” [¶] The combination of the two decisions baffled Mr. Neufeld. “That is quite a worldview,” he said of a jurisprudence that allows nonconsensual testing of people presumed innocent but denies voluntary testing to people who insist that they really are innocent.
This juxtaposition of King and Osborne is “quite a worldview,” but it is not an accurate description of the Court’s jurisprudence on DNA evidence. King establishes that the constitution permits—but does not require—a state routinely to acquire DNA identification profiles from individuals charged with violent crimes or burglary and to test these against databases of profiles of DNA found at crime-scenes and on victims. Osborne establishes that the constitution permits—but does not always require—the state to undertake or permit postconviction DNA testing that apparently could exonerate a convicted offender alleging actual innocence.
To be sure, the Osborne Court did not delineate the extent to which due process mandates postconviction DNA testing. In the view of the majority, it did not need to because the state did not refuse William Osborne a fair opportunity for DNA testing. But even if the Osborne Court was mistaken in treating the procedures in Alaska a basically fair, that Court's view of the reach of the constitution is consistent with its view in King. Sure, Alaska’s dogged refusal to allow Osborne to test, at his own expense, the condom left in the snow where (the jury found) he and another man assaulted, battered, and shot a woman, seems unconscionable. But as Justice Kennedy viewed the case:
Respondent was convicted for a brutal sexual assault. At trial, the defense declined to have DNA testing done on a semen sample found at the scene of the crime. Defense counsel explained that this decision was made based on fear that the testing would provide further evidence of respondent's guilt. After conviction, in an unsuccessful attempt to obtain parole, respondent confessed in detail to the crime. Now, respondent claims that he has a federal constitutional right to test the sample and that he can go directly to federal court to obtain this relief without giving the Alaska courts a full opportunity to consider his claim.District Attorney's Office for the Third Judicial District v. Osborne, 128 S.Ct. 2308 (2009) (Alito, Kennedy, and Thomas, JJ, concurring). Excerpts from the majority opinion, which Justice Kennedy also joined, are included at the end of this comment.
The reasoning is not a statement that everyone who claims innocence after a conviction should be barred from DNA testing. See also Innocence Project, Press Release, U.S. Supreme Court Decision on DNA Testing Is Disappointing But Will Have Limited Impact, June 18, 2009. Instead, Osborne identifies one situation in which federally ordered postconviction testing is not part of the due process of law essential to criminal punishment. Cf. Innocence Project, Model Law.
In other words, Osborne demonstrates that, a state may (but need not) take and use a DNA sample from every convicted person who volunteers one for postconviction testing. Likewise, King confirms that a state may (but need not) compel every individual who is arrested and charged with a serious crime to give a DNA sample for a suspicionless database trawl. The wisdom of these two decisions certainly is subject to reasonable dispute, but their juxtaposition forms an internally coherent constitutional jurisprudence.
Appendix
Some of the Osborne Court’s reasoning
Some of the Osborne Court’s reasoning
| Alaska provides a substantive right to be released on a sufficiently compelling showing of new evidence that establishes innocence. It exempts such claims from otherwise applicable time limits. The State provides for discovery in postconviction proceedings, and ... this discovery procedure is available to those seeking access to DNA evidence. ... The evidence must indeed be newly available to qualify under Alaska's statute, must have been diligently pursued, and must also be sufficiently material. These procedures are similar to those provided for DNA evidence by federal law and the law of other States ... . [¶] And ... the Alaska Court of Appeals has suggested that ... in an appropriate case the State Constitution may provide a failsafe even for those who cannot satisfy the statutory requirements under general postconviction procedures. To the degree there is some uncertainty in the details of Alaska's newly developing procedures ... , we can hardly fault the State for that. Osborne has brought this §1983 action without ever using these procedures in filing a state or federal habeas claim relying on actual innocence. ... When Osborne did request DNA testing in state court, he sought RFLP testing that had been available at trial, not the STR testing he now seeks, and the state court relied on that fact in denying him testing under Alaska law. His attempt to sidestep state process through a new federal lawsuit puts Osborne in a very awkward position. If he simply seeks the DNA through the State's discovery procedures, he might well get it. If he does not, it may be for a perfectly adequate reason, just as the federal statute and all state statutes impose conditions and limits on access to DNA evidence. It is difficult to criticize the State's procedures when Osborne has not invoked them. ... These procedures are adequate on their face, and without trying them, Osborne can hardly complain that they do not work in practice. |
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