Monday, March 9, 2009

First Bush, Now Obama: Department of Justice Opposes Inmate's Effort to Test DNA Evidence Used to Convict Him

Some commentators are criticizing the Obama administration's position in the case: District Attorney's Office for the Third Judicial District v. Osborne. The case involves an Alaska inmate's effort to obtain access to DNA evidence used to convict him of rape in 1994. Prevailing technology at the time could not establish his guilt or innocence with certainty; today, it would. The Office of the Solicitor General has adhered to Bush's position that the inmate does not have a constitutional right to re-test the DNA evidence, even though doing so could establish his innocence and despite the fact that his attorney will pay for the new scientific analysis of the evidence.

The Issues
Alaska is one of only six states where inmates do not have a post-conviction right to DNA evidence used to convict them. Osborne argues that he has a constitutional right to the evidence. The Ninth Circuit Court of Appeals agrees with him. The Supreme Court recently held oral arguments in the case.

The Supreme Court often looks to state law to determine whether "the people" have spoken on the existence of a constitutional right (this diminishes charges of "judicial activism"). Accordingly, the Court could view Alaska as an "outlier" and hold that due process requires that the state allow Osborne to test the DNA evidence. Post-conviction access to DNA evidence is particularly important in older convictions in which DNA analysts utilized primitive technology.

It is unclear what Alaska gains from its refusal to turn over the evidence. If the DNA analysis determines that Osborne is a rapist, the case ends. If not, then justice requires his release from prison. Osborne has secured pro bono legal representation, and his lawyers have offered to pay for the DNA testing.

Some prosecutors, however, have been defiant even when DNA establishes an inmate's innocence (or at least demonstrates that the individual is not guilty). In 2002, a federal court in Pennsylvania ruled -- in a strikingly similar case -- that the inmate, who was convicted of raping two women, had a post-conviction right to re-test the DNA evidence. The DNA screening proved that the same person raped the two women -- but that the inmate was not the rapist. The prosecutor still refused to accept the results.

Another series of test showed that the inmate was not the rapist, but the prosecutor again refused to believe that he was innocent. The prosecutor nevertheless asked the judge to release the inmate because he did not have sufficient evidence to prove his guilt.

Obama and DNA Rights
As a state senator, Obama sponsored and lobbied for legislation that gave all inmates a post-conviction right to DNA evidence -- the same right that Osborne asserts in this case. The government's position does not prevent states from passing laws to establish this right in the future; instead, it seeks to rebut the inmate's argument that due process establishes this right.

The Bush administration was not required to take a position in this case. Although the Bush administration decided to submit a brief in the case, the Obama administration could have refused to defend it, withdrawn it, or even switched position. And while the Solicitor General has a culture of maintaining the same positions as the previous administration in pending cases, critics argue that the issues this case raises are so substantial that the Obama administration could have legitimately abandoned Bush's argument.

Final Words
I believe that inmates should have the right to test DNA evidence used to convict them. They certainly should have the right to test the evidence prior to a conviction. The issue of cost is not relevant in this particular case, because Osborne's lawyers will pay for the DNA analysis. Because I strongly believe in due process and because science can answer the question of guilt or innocence, I believe that the Court should rule against Alaska and reject the Bush-Obama arguments.

William Sessions, a former federal judge and Director of the FBI during the Reagan administration, has a very passionate take on the case that appears on Slate.Com. I close this essay with a slice of Sessions' argument:
It's a generally laudatory goal for a new president to continue the DoJ polices of the previous one when he takes office. But a change in position may be warranted in some cases. Osborne is one of them. The Justice Department's decision is particularly perplexing because when President Obama was an Illinois state senator, he responded to that state's wrongful conviction problem by leading a bipartisan effort to help prevent convictions of the innocent, including laws allowing access to DNA evidence.

Evidence of innocence does—and must—matter to all of us, whenever it is presented. I have no idea whether Osborne is guilty. If the DNA shows that he is, so be it. But what if it shows he is not? Wouldn't victims of crime want to know if the wrong person is imprisoned, and the real perpetrator is still on the streets, free to commit more crimes? Wouldn't all of us want to know this?

Former Attorney General John Ashcroft has called DNA the "truth machine of law enforcement." Why should our criminal justice system be afraid of that truth machine? . . . .
Note: The SCOTUS Blog contains excellent coverage of this issue. Law.Com also has helpful analysis.


Infidel753 said...

This seems like a case of people getting so caught up in rules and process that they've forgotten the reason why the system exists in the first place. The only reason we have laws, courts, lawyers, prisons, and all the rest of it is to punish the guilty and protect the innocent. Yet in this case, the question of whether Osborne actually committed the crime or not is being treated as some sort of peripheral detail in an abstract philosophy problem. This is the kind of thing that destroys respect for the legal system -- and may end up with an innocent man being imprisoned past the point where it should have been possible to prove him innocent.

Darren Lenard Hutchinson said...

Alaska even argued that the inmate never issue a sworn statement attesting to his innocence. But that is not a legal requirement to obtain evidence in a criminal case. That's a shocking argument.

Jason Papanikolas said...

For once, I whole heartedly agree with you, Darren. The point of forensic analysis is not only to catch the criminal, but to ensure that the right man (or woman) is caught and held accountable. What I think many of us forget is that the justice system is run by human beings and humans are fallible. This is why we have due process; to not only ensure that the system is as fair as possible to both sides, but also to allow for the correction of errors in judgement.

OTOH, considering that some innocent inmates have gone back and sued the state for millions, I can understand the prosecution's lack of contrition. That said, it's still better to admit the error than continue the perversion of keeping an innocent person in jail.

Darren Lenard Hutchinson said...

Hi, Jason. Well, thanks for commenting so frequently even though this is the first moment of agreement.

I think the millions of dollars is more headline news than the reality in most cases. Besides, if very strict testing is promoted, mistakes can be avoided, which will reduce damage awards.

FLRN said...

Darren - My question for you is what is the standard for overturning a conviction after all appeals have been exhausted? Seems to me the real issue here is 'can you have access to the sample post conviction', the secondary issue is over turning a conviction that appears to hinge solely on DNA evidence.

Speaking to the secondary issue technology for DNA analysis (Nuclear DNA) was in the juvenile stages 15 years ago when this case was originally argued. Since then Mitochondrial DNA analysis, specialized collection training for finite methods with more sophisticated light sources and trained examiners(SANE-A) and most importantly sample stabilization and preservation have certainly evolved.

Could there be other impacting issues here like the current integrity of the sample?

Your take and view seem wholly valid, but I will play devil's advocate here without knowing the details of the case, I would caution all to recognize that DNA does not survive the stress of time well and may not endure a repeat scrutiny as Semen and blood samples can degrade and deteriorate thus leaving us with less than what we had at the time of the original trial. My second criticism is that DNA in abscentia does not an innocent man make.

If there were no DNA would there be no crime conviction? The inexperienced would decide yes, but I would assert that the media (CSI, L&O and Geraldo) and even our system holds DNA in a sexual assault as the gold standard - but please recognize the degradation of a sample or even the absence of DNA evidence can be multifactorial as fluids of the victim, the collection methods of untrained ER staff, elimination and hygiene habitus of the victim, time, heat, storage, and contamination can all lead to "false" assumptions and a path that goes in the wrong direction when DNA does not exist to tell a story for starry eyed jurors.
An award winning DNA sample is a sought after gift not easily retrieved or maintained after a sexual assault - unfortunately this truth is often overshadowed by misconceptions and assumptions which seem to dominate making an initial rapist conviction beyond challenging and exceptional to secure.

Now having said all that ~ I think they should test the sample if they are ready to when considering the results and make arguable allowances for storage and evidence preservation.
Here are some sites for both sides.

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