Supreme Court Watch: Osborne DNA Case Mentioned At Sotomayor Confirmation Hearing

Recent Osborne DNA Case and the role of using DNA evidence to exonerate prisoners is noted during questioning by Senator Richard J. Durbin, Assistant Senate Majority Leader

Upon the conclusion of Second Circuit Judge Sonia Sotomayor’s testimony before the Senate Judiciary Committee regarding her appointment as an Associate Justice of the Supreme Court, the media is reporting a vote on her confirmation in August.

One exchange during the confirmation hearing touched upon DNA evidence based on the recent Supreme Court Osborne case. As with her other testimony during the hearings, she revealed little on matters that could possibly come before the Court. While Senator Durbin's question was based on the decision in Osborne, it probed the judge's impressions on the role the Court should play in considering the impact of new technologies on the criminal justice system. Judge Sotomayor's short response seemed to reflect the approach Chief Justice Roberts took in Osborne in finding it "primarily" a legislative branch "task" to balance the capacity and availability of new technologies in proving iinnocence with maintaining the stability of the "established system of criminal justice."

The Judge’s comment – much shorter than the question to her – came during an exchange with Senator Richard J. Durbin of Illinois, Assistant Senate Majority Leader. The issue raised by Senator Durbin involved the Supreme Court’s June 18th decision in District Attorney's Office for the Third Judicial District, et al., Petitioners v. William G. Osborne, 557 U. S. _ (June 19, 2009) (No. 08-6).

In this five to four ruling, which was noted in a prior post, the Supreme Court decided that prisoners have no post-conviction procedural or substantive due process right to biological evidence for DNA testing. The Supreme Court reversed a Ninth Circuit ruling that a prisoner’s “right to due process prohibits the state from denying him reasonable access to biological evidence for the purpose of further DNA testing.” In reversing the Ninth Circuit ruling, Chief Justice Roberts, writing for the majority observed:

“Where there is enough other incriminating evidence and an explanation for the DNA result, science alone cannot prove a prisoner innocent. The availability of technologies not available at trial cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt. The dilemma is how to harness DNA’s power to prove innocence without unnecessarily overthrowing the established system of criminal justice. That task belongs primarily to the legislature.”

Osborne, 557 U. S. at _.

As the issue of Osborne developed during Senator Durbin’s questioning, the transcript reflects the following exchange:

Excerpt From Transcript
Senate Judiciary Committee Confirmation Hearing
Nomination of Sonia Sotomayor To The Supreme Court

Senator richard J. Durbin:: "And this is a recent case before the Supreme Court I'd like to make reference to, D.A.'s Office v. Osborne, involving DNA. It turns out there are only three states in the United States that don't provide state legislative access to DNA evidence that might be -- might exonerate someone who is in prison.

"I am told that, since 1989, 240 post-conviction DNA exonerations have taken place across this country, 17 involving inmates on death row. Now, the Supreme Court in the Osborne case was asked, what about those three states? Is there a federal right to access to DNA evidence for someone currently incarcerated who questions whether or not they were properly charged and convicted? And the court said, no, there was no federal right, but it was a 5-4 case. So, though I don't quarrel with your premise that it's our responsibility on this side of the table to look at the death penalty, the fact is, in this recent case, this Osborne case, there was a clear opportunity for the Supreme Court right across the street to say, 'We think this gets to an issue of due process as to whether someone sitting on death row in Alaska, Massachusetts or Oklahoma, where their state law gives them no access, under the law, to DNA evidence.'

"So I ask you, either from the issue of DNA or from other perspectives, isn't it clear that the Supreme Court does have some authority in the due process realm to make decisions relating to the arbitrariness of the death penalty?"
Judge Sotomayor:: "The Court is not a legislative body. It is a reviewing body of whether a particular act by a state in a particular case is constitutional or not. In a particular situation, the Court may conclude that the state has acted unconstitutionally and invalidate the act, but it's difficult to answer a question about the role of the Court outside of the functions of the Court which is we don't make broad policies. We decide questions based on cases and the principles implicated by that particular case before you."

Osborne raised due process issues involving DNA evidence. if Judge Sotonmayor becomes Justice Sotomayor this summer, the Court's docket for this fall already includes some significant constitutional cases impacting evidence. For example, this may include review, as promised in Crawford v. Washington, "to spell out a comprehensive definition of ‘testimonial’." 541 U.S. at 68 n.10. The Court recently suggested in Melendez-Diaz v. Massachusetts that certificates of forensic analysis are "testimonial" and "the Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits." This fall, the court will consider Briscoe, et al., v. Virginia (07-11191), which involves whether the state can "avoid" this obligation "by providing ... the accused ... a right to call the analyst as his own witness” at trial.

For more On the Osborne case and DNA evidence, see: