ILNews

DNA-access ruling may have limited impact

Michael W. Hoskins
June 18, 2009
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A ruling today from the nation's highest court says convicts don't have any constitutional right to test state DNA evidence after their convictions become final, but that decision may not impact Indiana or much of the country.

The Supreme Court of the United States issued a 62-page decision in District Attorney's Office v. William G. Osborne, No. 08-6, which by a split 5-4 vote said the task of writing rules to control access to DNA evidence belongs primarily to state legislatures.

Because the Indiana legislature already allows access to post-conviction DNA evidence for testing through a 2001 statute, and most states already allow that access in some form, the impact will likely be minimal and confined to the few states without those laws on the books.

"I look at this as a reminder to agencies and state legislatures that it's up to them to take the lead and to stay vigilant," said Will McAuliffe, executive director of the Indiana Coalition Acting to Suspend Executions. "Most states have some sort of provision allowing for defendants to petition for DNA access, so this really is reflective of the small number that don't."

The SCOTUS ruling comes from a case in the 9th Circuit Court of Appeals in California involving the 1993 non-fatal rape, beating, and shooting of a prostitute in Alaska. Osborne was one of two men convicted and sentenced for the crime and got 26 years in prison. He later raised a federal constitutional claim that he had due process right to access the DNA evidence used against him for testing at his own expense. He won at the District and Circuit levels, gaining access to a blue condom used in the attack that he argued would firmly establish his guilt or innocence. But today's ruling reverses those earlier victories for Osborne on the grounds that he didn't have a right to that evidence under 42 U.S.C. § 1983.

Writing for the majority, Chief Justice John G. Roberts noted that DNA testing provides an "unparalleled ability" for someone to prove guilt or innocence, but its availability "... cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt. The task of establishing rules to harness DNA's power to prove innocence without unnecessarily overthrowing the established criminal justice system belongs primarily to the legislature."

To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response, the chief justice wrote.

Justices Samuel Alito and Anthony Kennedy wrote a separate concurring opinion that went further, saying that these claims should not be allowed in civil rights litigation but through only a habeas corpus plea, and that if a defense attorney fails to request DNA access during trial as a tactical reason, there is no constitutional right to see that access post-conviction.

Meanwhile, Justice John Paul Stevens dissented because he believes Osborne had a constitutional right to access that DNA evidence; Justice David Souter also dissented, stopping short of the constitutional question and writing he would have allowed the access on procedural, state-statute grounds.

Nationally, figures show that DNA testing has led to the exoneration of more than 200 people who've been convicted of murder, rape, or other violent crimes. That includes several in Indiana, who've been assisted by national wrongful-conviction advocates and attorneys and law school clinics at Indiana University School of Law - Indianapolis and Northwestern University School of Law.

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  1. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  2. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

  3. Low energy. Next!

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  5. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

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