Sunday, June 21, 2009

You Have the Right to a Fair Trial...Except for DNA Evidence That Is.

You didn't think I was going to let this one slide, did you? Last Thursday, the Supreme Court of the United States heard the case District Attorney's Office v. Osborne*1, which was an Alaskan case about a Black man, William Osborne, who was convicted of kidnapping and raping a white woman in 1994. During the rape trial, the Alaskan crime lab tested sperm from a condom found at the scene of the crime using a low level DNA test known as the "DQ Alpha" test, which, in its limited utility, was only able to identify that the DNA in the condom was a type of DNA commonly found in African American men. (Osborne is African American) There was another more sophisticated DNA test available during that time known as the "RFLP" test which could have pinpointed any given sample of DNA down to an accuracy level of one in a billion people. However, after the first test showed that an African American likely committed the crime, William Osborne's defense attorney, as a strategic matter, did not want to pursue the second test because if the test showed that Osborne's DNA matched that of the condom it would scientifically and irrefutably prove his guilt beyond a reasonable doubt. Osborne was later convicted and sentenced to 26 years in prison. After his conviction, he demanded that the DNA evidence from the condom be allowed into evidence to conclusively prove his innocence (or his guilt, depending on the results of course).

From prison, Osborne sued the state of Alaska using a civil rights lawsuit, as opposed to bringing the case through the traditional Habeas Corpus procedure. A Habeas Corpus petition is a special type of lawsuit that allows people who have been convicted of crimes to contest their convictions while they are still in jail based on the grounds that something unconstitutional happened during their trial. In this case, Osborne alleged that the state of Alaska violated his right to Due Process by withholding the DNA evidence that could have exonerated him.

The Federal District Court hearing the case tossed it out because Osborne didn't bring the Constitutional challenge against his conviction through the Habeas Corpus process. The Habeas Corpus process, per the AEDPA passed by congress in 1996, requires you to exhaust all 3 levels (trial, appellate, and supreme) of the state courts FIRST before you are allowed to bring the Habeas Corpus petition into a Federal court.*2 The process of going through all 3 levels of state court, as you can imagine, can literally take years. Thus, Osborne appealed his civil rights law suit to the 9th Circuit Federal Court of Appeals. The 9th Circuit agreed with him and overruled the Federal District Court. The state of Alaska, of course, appealed the 9th Circuit decision to the United States Supreme Court, which brings us to last Thursday's decision.

The conservative block of the court, led by Chief Justice John Roberts who authored the Court's decision, ruled 5-4 that states like Alaska are under no Constitutional obligation whatsoever to cough up DNA evidence to a person like Osborne after the trial is over. Before the trial and during the trial, sure. But after the trial, no dice. So even if there is DNA evidence that could prove your innocence and get you out of jail and out of the taxpayer's pocket (something conservatives should like right?), you have no Constitutional right to it. Roberts, instead, says that it is up to each state to decide if they want to give it to you or not. What a shocker. Oh and by the way, Alaska is one of six states in which inmates have no statutory rights to access DNA evidence after trial. I guess Roberts forgot to mention that part. Oops. I'm sure that fact played absolutely no part in Roberts' decision to send this one back to the state though right?

To add insult to injury, Roberts went on to say that if Osborne had brought the suit through a Habeas Corpus petition, instead of through a civil rights law suit, then he would have had a right to the DNA evidence from the state. Right...because expending 1000's of hours of state resources and 10's of 1000's (if not 100's of 1000's) in tax payer dollars to argue against a convict at all 3 levels of state courts over a 5 or 10 year time period is a faaaaaaaaaar more efficient system than just handing over the DNA evidence after trial when they ask for it. Since when did we start playing hide-the-ball with evidence that can clear people? Good job, Roberts.*3

So the ultimate question here is, of course, whether the Court got it right. In other words, should people who are convicted of crimes who are attempting to prove their innocence have a RIGHT to access DNA evidence from the state that convicted them after their trial is over?

*1 - District Attorney's Office for the Third Judicial District et. al. v. Osborn, 557 U.S. ____, June 18, 2009.

*2 - I need a whole other blog to go off about the filth that is the AEDPA. It makes it extremely difficult for convicted criminals to bring Habeas Corpus challenges to their convictions into federal courts. Stated differently, the AEDPA effectively killed Habeas Corpus. Habeas Corpus petitions were already hard to win before the AEDPA was passed, but now they are virtually impossible to win. As an example of how rarely Habeas Corpus petitions are granted, when I was an intern for a Federal judge in NYC's Federal District Court (Southern District of New York), I wrote a court opinion for my judge that actually granted a prisoner's Habeas Corpus petition. As a testament to its uniqueness, it made the New York Times and the front page of the New York Law Journal. That's how rare these things are!!! You have a better shot at winning the pick 5 lotto than winning a Habeas Corpus petition in Federal Court.

*3 - Speaking of Chief Justice Roberts, Jeffrey Toobin did an exposé on Roberts in the New Yorker which should put the Osborn decision into some context:

"In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party."
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