Friday, June 26, 2009

LTG 06/24/09 - No DNA test for you!

From the Omaha CityWeekly, June 24-July 01, 2009 (


Law Talking Guy
5-4=Catch 22

By: Patrick Runge
Issue: June 24, 2009

Here’s a puzzle for you numbers junkies. How does 5-4 lead to a Catch-22?

Last week, the United States Supreme Court ruled 5-4 that the due process clause of the Constitution does not give a person convicted of a crime the right to access DNA evidence to prove his or her innocence. In this case from Alaska, awkwardly titled District Attorney’s Office for the Third Judicial District v. Osborne, the Supreme Court actually overruled the lower court’s decision granting Osborne the right to a DNA test to challenge his conviction for rape and murder.

A little procedural history is probably important. In this case, Osborne offered to pay for a more sophisticated DNA test of the evidence against him. The prosecutors agreed that the test would definitively demonstrate whether Osborne was guilty or not. But they still refused to allow the test, because Alaska is one of four states that do not have a law in place allowing post-conviction DNA testing.

Nebraska, thankfully, is not one of those four states. Go Big Red.

Osborne appealed, arguing that the due process clause of the Constitution should require the state to give him access to the testing. The Court of Appeals agreed with Osborne, but the prosecutors successfully appealed that ruling to the Supreme Court.

Chief Justice John Roberts wrote the majority opinion, which started off sounding pretty good for Osborne. Roberts wrote of the “unparalleled ability” of current DNA testing to reach a factual determination of guilt or innocence in criminal cases, technology that was not available at the time many people were convicted.

But things quickly got worse for Osborne. Roberts went on to discuss how states across the country were actively pursuing various means of providing an avenue to use post-conviction DNA testing to guilt or innocence. Establishing a Federal constitutional right to DNA testing, Roberts wrote, would be “leaping ahead” of the states in their pursuit of justice.

Roberts never quite got around to explain why that was a bad thing, of course. But apparently it is.

The part of the majority opinion I found the most disturbing, however, was when Roberts discussed why focusing just on the actual guilt or innocence of those asking for post-conviction DNA testing wasn’t the most compelling thing.

“A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man,” wrote Roberts (whom we will have to pardon for his unfortunately sexist choice of nouns). And because a defendant convicted of a crime does not have the same “liberty interests” as someone who was not convicted (see how easy it is to use more inclusive language?) states have more “flexibility” in deciding what rights to grant or deny to a person wanting to challenge their conviction and prove their innocence.

So, here’s the Catch-22. Let’s say for the purposes of this discussion that I have been wrongly accused of a horrible crime. I go to trial, and there’s DNA evidence out there that would prove I’m innocent. I’m convicted of the crime, and the day after my conviction a test is developed that would prove my innocence.

The test wasn’t available at the time of my trial, so I couldn’t use it then. But after I’ve been convicted – without the benefit of that DNA evidence, mind you – the fact that I’ve been convicted means I can’t use the DNA evidence to prove I shouldn’t have been convicted in the first place. Either way, it means that the Supreme Court is doing the judicial equivalent of sticking their collective fingers in their ears and shouting “LA LA LA LA LA” to the DNA evidence that could exonerate me as I make the slow walk towards Ol’ Sparky.

In fairness, Roberts was correct in telling us that a person convicted of a crime (gender neutrality is easy!) doesn’t have the right to continually re-try his or her (well, sometimes it’s a little awkward) case. The actual test as to how much post-conviction relief a convict should receive is that a denial of that relief “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”

Let’s see. We’ve got a person in prison. We have a scientific test that even prosecutors agree could definitively prove that person’s innocence, a level of certainty that cannot be gained from a trial without that evidence. In other words, we have an objective, scientific test that can tell us if this person is innocent – and could very well be executed by the state without that test.

And yet, according to Roberts, denying a person access to that test is not something that “offends some principle of justice.” I’m not sure what dictionary Roberts is using, but if “making sure we’re not executing the wrong person” isn’t justice in its purest form, then I don’t know what is.

But I will let Justice John Paul Stevens’ words in his dissent summarize the problem with Roberts’ opinion.

“[T]here is no reason to deny access to the evidence and there are many reasons to provide it, not least of which is a fundamental concern in ensuring that justice has been done.”

Patrick Runge has practiced law in the Omaha area since earning his degree from Creighton University in 1994. He has also written for the Omaha Pulp, Millard Avenues and UNO’s Gateway. E-mail him at

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