Osborne Case Develops Right to Post-Conviction Testing, Garrett Says

July 14, 2009

A recent U.S. Supreme Court ruling that denied an Alaska man access to DNA evidence also asserts that states cannot arbitrarily block convicts' access to  evidence that could free them, according to analysis presented by professor Brandon Garrett at a July 7 faculty workshop.

Brandon Garrett

In District Attorney's Office v. William G. Osborne, the Supreme Court addressed the question of  whether a convicted felon had a constitutional right to pursue DNA testing.

The court recognized for the first time the problem of  wrongful convictions, and justices recognized that DNA evidence is a powerful tool  in criminal cases. The justices also cited Garrett's scholarship on post-conviction  DNA exonerations and state statutes providing access to post-conviction DNA  testing.

Osborne was tried and convicted for rape in 1993 in Alaska. At his criminal  trial, he was included as a potential perpetrator by the results of an early, imprecise form of DNA testing. That  early type of DNA testing could have conclusively excluded a suspect, Garrett said, but it could not positively identify Osborne as the culprit; the results  included one in about seven men.

Although Osborne requested another, more precise form of DNA  testing, his lawyer decided not to pursue it, Garrett said. After being  convicted, Osborne requested the test again, as well as far more powerful  modern DNA testing techniques that were common by the mid-1990s.

Almost all states now have rules that allow convicted felons  to pursue hearings on DNA tests that become available after their  incarceration, but Alaska is one of a few that does not. Additionally, most  prosecutors eventually agree to conduct post-conviction DNA testing, whether their  state has a statute allowing it or not, Garrett said, in part because the  testing often identifies the true culprit.

The Supreme Court, in a 5-4 decision, decided that prisoners  have a constitutional right to access new DNA testing, a procedural due process  right barring a state from arbitrarily denying relief under their  post-conviction rules.  However, the  court ruled that Osborne was not entitled to relief.

"That ruling sets an  important precedent, " Garrett said. "Where the justices differed was whether  the state acted arbitrarily in Osborne's case."

In his dissent, for example, Justice David Souter reasoned  that it is good to go slow in recognizing new constitutional rights. Souter  disagreed, however, on the question of whether Alaska had applied its evidence rules arbitrarily; Souter felt that Osborne had waited long enough and that Alaska had offered no plausible reason justifying denying Osborne the DNA  testing.

Garrett said that the decision will have an impact in future  cases in which convicts seek DNA testing to try to prove their innocence. As for Osborne, the court stated that he can  still obtain relief both from the Alaska state courts, and if he files a federal habeas corpus petition and seeks discovery on a claim of innocence, he  said. In contrast, other convicts who  lack state court avenues for obtaining post-conviction DNA testing may rely on the

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