No Constitutional Right to DNA Testing for Convicts

     (CN) – The U.S. Supreme Court on Thursday declined to create a new constitutional right that would allow convicts to obtain DNA testing of the evidence that convicted them. In a 5-4 ruling, the majority said the decision on how to apply DNA technology in the criminal justice system is best left to lawmakers and state courts.




     “Federal courts should not presume that state criminal procedures will be inadequate to deal with technological change,” Chief Justice John Roberts wrote. “The criminal justice system has historically accommodated new types of evidence, and is a time-tested means of carrying out society’s interest in convicting the guilty while respecting individual rights.”
     The ruling denies further DNA testing to convicted rapist William G. Osborne, who insisted he had a constitutional right to use the latest technology to try to clear his name.
     He was identified as one of the perpetrators of the kidnapping and sexual assault of a prostitute 16 years ago. According to the victim, two men picked her up while driving through Anchorage, Alaska. When she demanded payment in advance, the men pulled out a gun and forced her to perform oral sex on the driver while the passenger raped her. They then ordered her out of the car, made her lie face-down in the snow, choked her and beat her with the gun. When she tried to flee, the passenger beat her with a wooden axe handle and shot her in the head. The bullet only grazed her head, and she was able to flag down a passing car once the two men left.
     Police later discovered evidence of the crime in Dexter Jackson’s car during a routine traffic stop. Jackson admitted that he had been the driver during the rape and assault, and told police that William Osborne was the passenger. Crime-scene evidence and witness accounts corroborated this claim.
     An Alaska jury convicted Osborne and Jackson of kidnapping, assault and sexual assault, but acquitted them of an additional count of sexual assault and attempted murder.
     Osborne was sentenced to 26 years in prison, with five years suspended. On appeal, he demanded a more precise DNA test than the “DQ Alpha” test used to analyze the semen on a condom used during the assault.
     That test served to eliminate Jackson and a third suspect as possible sources of the semen, but could not narrow the perpetrator to less than 5 percent of the population.
     Osborne accused his attorney, Sidney Billingslea, of ineffective counsel when she refused to demand further testing. Billingslea explained that she believed Osborne was guilty and thought more testing “would have served to prove that Osborne committed the alleged crimes.”
     The Alaska Court of Appeals concluded that the attorney’s decision had been strategic and rejected Osborne’s request for more testing.
     Osborne also sued in federal court, accusing state officials of violating his due process rights by denying him access to better DNA testing.
     The 9th Circuit allowed him to sue under federal law, but expressed “no opinion as to whether Osborne has been deprived of a federally protected right.”
     The federal judge sided with Osborne on remand, saying “there does exist, under the unique and specific facts presented, a very limited constitutional right to the testing sought.” The 9th Circuit affirmed, and the nation’s highest court reversed.
     “The availability of technologies not available at trial cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt,” Chief Justice Roberts wrote.
     He noted that 46 states have laws outlining access to DNA evidence. Although Alaska is not one of them, its state courts have been filling in the gaps.
     “We see nothing inadequate about how those procedures apply to those who seek access to DNA evidence,” Roberts wrote.
     Dissenting Justice Stevens argued that Osborne not only has a constitutional right to the evidence, but he has also jumped through all the right hoops to get it – and the state still refuses to let him test the evidence at his own expense.
     “[T]he court today blesses the state’s arbitrary denial of the evidence Osborne seeks,” Stevens wrote in an opinion joined by Justices Ginsburg, Breyer and to some extent Souter.
     Justice Souter agreed that the state failed to give Osborne a fair shot at proving his innocence, but stopped short of endorsing a constitutional right for convicts to obtain DNA evidence.
     “I would reserve judgment on the issue simply because there is no need to reach it,” Souter wrote. “At a general level Alaska does not deny a right to postconviction testing to prove innocence, and in any event, Osborne’s claim can be resolved by resort to the procedural due process requirement of an effective way to vindicate a liberty interest already recognized in state law.”

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