Freedom New Mexico
It is possible to see both sides in the difficult case of District
Attorney’s Office v. Osborne, in which a divided U.S. Supreme Court
recently decided this particular defendant did not have a
post-conviction constitutional right to get access to evidence in the
state’s possession so he could conduct his own DNA testing on it and
establish rather definitively his guilt or innocence.
In a 5-4 decision the high court acknowledged DNA testing was in
general a good thing but the courts should let state legislatures make
rules about the circumstances under which it is made available to
The case was somewhat convoluted. A prostitute in Alaska was
brutally raped, beaten, shot and left for dead, though she survived.
William Osborne and an accomplice were convicted — Osborne of the
actual rape and shooting. DNA testing of evidence found at the scene
narrowed the identity of the perpetrator down to 5 percent of the
population, which included Osborne, and based on that and eyewitness
accounts he was convicted. He was eventually released on parole and has
since been arrested, convicted and imprisoned for another offense.
As unsympathetic a character as Osborne is, does he still have a
right, under the U.S. Constitution’s clause guaranteeing everyone due
process, to get access to material that would allow him to perform a
more sophisticated DNA testing than was available in 1993? The term
“due process” has never been precisely defined and has evolved over the
years as different techniques and technologies have become available.
In essence it means the state must be scrupulously fair, sometimes even
bending over backwards, when it accuses and convicts a person of a
crime for which he or she may lose his or her liberty.
With Chief Justice Roberts writing for the majority, the high court
ruled that setting up rules for DNA testing in criminal cases was a job
for legislatures and state courts, most of which have already acted to
establish procedures that are still evolving. Besides, at the trial,
for strategic reasons, Osborne’s lawyer had declined to order a more
sophisticated DNA test, which vitiated his right to demand an even more
sophisticated test later.
The minority argued not only that Alaska state courts had been
unreasonable in refusing to release DNA to Osborne, but that DNA had
already proven itself to be so valuable in criminal cases that it just
might be time to include DNA testing in the concept of “due process.”
On balance, although we sympathize with the majority’s desire not to
dictate standards in a still-evolving area, we would like to see the
court push harder to have DNA testing incorporated into as many phases
as possible of the criminal justice process.