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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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