Supreme Court Justices Cite Garrett Research

June 25, 2009

The research of law professor Brandon Garrett has been cited three times by members of the U.S. Supreme Court in the past week.

Brandon Garrett

Both sides of a decision last week on post-conviction DNA testing referenced Garrett's work on the subject, and in a majority opinion released today, Justice Antonin Scalia cited an article co-authored by Garrett that highlights the problem of invalid forensic science testimony admitted in criminal trials.

The Supreme Court ruled today that a Massachusetts man convicted of cocaine possession had the right to confront and cross-examine the lab analyst who tested the suspected cocaine. During his original trial, the state court allowed prosecutors to introduce a certificate authenticating the cocaine without testimony.

In "Invalid Forensic Science Testimony and Wrongful Convictions," Garrett and co-author Peter Neufeld analyzed the testimony by forensic analysts at the trials of defendants who were convicted and later exonerated by DNA testing.

"One study of cases in which exonerating evidence resulted in the overturning of criminal convictions concluded that invalid forensic testimony contributed to the convictions in 60% of the cases," Scalia wrote of the article in the majority opinion.

A separate case decided last week centered on whether Alaskan William Osborne had the right to test a DNA sample from a 1993 rape of which he was convicted and sentenced to 26 years in prison. Osborne's request to test the sample was denied by a state court, a decision backed by the Supreme Court last week in a 5-4 decision.

Both Chief Justice John Roberts, who wrote the majority opinion, and Justice John Paul Stevens, who wrote the dissenting opinion, cited Garrett's work.

Stevens cited to Garrett's 2008 article, "Judging Innocence," a study of the first 200 post-conviction DNA exonerations, while Roberts cited a follow-up piece, "Claiming Innocence," which included analysis of state statutes providing access to post-conviction DNA testing. Garrett's work was also cited in briefs and amicus briefs on both sides.

"It is gratifying to see that the data I collected was useful to the litigants and to the court," Garrett said. "Hopefully lawyers, judges and lawmakers can continue to benefit from a clearer understanding of wrongful convictions."

In "Claiming Innocence," Garrett pointed out that nearly all the states have adopted statutes granting prisoners access to evidence for DNA testing after they have been convicted. Alaska is one of the few remaining states that does not have such a statute.

In the majority decision, Roberts cited this as evidence that states have been able to self-regulate on the issue, and maintained that there is no need for a constitutional right to post-conviction DNA testing.

On the other side, Stevens argued that Osborne should have access to the test, writing in his dissenting opinion that "DNA evidence has led to an extraordinary series of exonerations, including in cases where the person had confessed and the trial evidence against them appeared overwhelming."

Stevens cites Garrett's "Judging Innocence" article, noting that in half of the cases in which DNA evidence exonerated a convicted person, the court review had commented on the person's likely guilt, and that in 10 percent of those cases, the evidence against them had been described as overwhelming.

In the Osborne case, the state prosecutors opposed DNA testing and were willing to litigate the issue for years. Garrett said that type of opposition is atypical, as prosecutors consented to post-conviction DNA testing in the vast majority of exonerees' cases.

"One reason may be that law enforcement has a strong incentive to learn the truth, " he said. In more than one-third of the exonerations Garrett researched, post-conviction DNA testing identifies the actual perpetrator of the crime.

On July 7, Garrett will present a faculty workshop on the Osborne decision and its repercussions for post-conviction DNA testing and criminal procedure.

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