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DNA-access ruling may have limited impact

June 18, 2009

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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