Supreme Court Watch: Supreme Court Holds Due Process Does Not Require Post-Conviction Access To Evidence For DNA Testing

In a five to four ruling, Supreme Court decides that prisoners do not have a post-conviction procedural or substantive due process right to biological evidence for DNA testing, 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)

As the current Term of the Supreme Court nears conclusion, last week, the Court concluded there was no due process right after a conviction to access evidence for DNA testing. The Supreme Court reversed a Ninth Circuit ruling that held 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.” Osborne v. Dist. Attorney's Office for the Third Judicial Dist., 521 F.3d 1118, 1141-422 (9th Cir. 2008)

The case involved the state court conviction of two defendants for kidnaping, assault, and sexual assault and acquittal of sexual assault and of attempted murder. The case involved a gruesome sexual assault of a prostitute. The defendants used a gun to force her to have sex with them, beat her with an axe handle, and abandoned her in the snow after shooting her in the head. She miraculously survived the attack. The state performed DNA “DQ Alpha” testing on the sperm and used condom which were discovered at the scene. While the condom sperm had the same DQ Alpha type as defendant Osborne, this type was also shared by about sixteen percent of other African Americans.

The defense did not request further DNA testing based on a concern that it would make the government’s case stronger. The victim identified both assailants before trial from photographs and defendant Osborne during the trial. Her description of the car matched the car driven by co-defendant Jackson. Tire tracks from the scene matched the tires on his car. Witnesses saw defendant Osborne and defendant Jackson together prior to and after the incident. Co-defendant Jackson admitted to police that he was the driver and defendant Osborne was a passenger in the car. The jury dismissed the mistaken identity defense.

After his conviction and 26 year prison term were affirmed on appeal in state court, defendant Osborne filed for post-conviction relief in state court claiming his defense attorney was ineffective in failing to seek further restriction-fragment-length-polymorphism (RFLP) DNA testing and also sought further DNA testing of the evidence. The state court found no ineffective assistance of counsel and ultimately concluded there was no state or constitutional right to RFLP testing that was available at trial.

Osborne filed a civil rights action under Section 1983 in federal court claiming that the Due Process Clause provided a right to access to the DNA evidence to perform a short-tandem-repeat (STR) test. Initially, the district court held that section 1983 did not permit relief and any remedy was required on habeas review. The Ninth Circuit reversed, concluding the issue could be reviewed under Section 1983 and remanded the case. Osborne v. District Attorney’s Office, 423 F.3d 1050 (9th Cir. 2005) The district court held a limited constitutional right for testing applied “under the unique and specific facts presented.” Osborne v. Dist. Attorney’s Office, 445 F. Supp. 2d 1079, 1081 (D. Alaska 2006). The Ninth Circuit affirmed. Osborne v. Dist. Attorney's Office for the Third Judicial Dist., 521 F.3d 1118, 1141-42 (9th Cir. 2008)

In reversing the Ninth Circuit ruling, Chief Justice Roberts, writing for the majority which included Justices Scalia, Kennedy, Thomas and Alito, 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 _. While Alaska had not adopted a statute concerning requests for DNA testing, it was considering pending legislation and 46 states had statutory procedures.

It was unnecessary for the Supreme Court to decide two issues: (1) whether a claim could be made under Section 1983, or (2) whether there was a “constitutional right to be released upon proof of ‘actual innocence,’” since there was no post-conviction due process right to the evidence.

The Ninth Circuit went too far in recognizing a procedural due process right by applying pre-trial discovery obligations to reveal exculpatory evidence, under Brady v. Maryland, 373 U. S. 83 (1963), to the post-conviction setting. The majority distinguished the post-conviction liberty interest from one before trial:

“A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man. At trial, the defendant is presumed innocent and may demand that the government prove its case beyond reasonable doubt. But ‘[o]nce a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears.’ Herrera v. Collins, 506 U. S. 390, 399 (1993). ‘Given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.’ [Connecticut Bd. of Pardons v]. Dumschat, [452 U. S. 458,] 464 [(1981)] (internal quotation marks and alterations omitted). The State accordingly has more flexibility in deciding what procedures are needed in the context of postconviction relief. ‘[W]hen a State chooses to offer help to those seeking relief from convictions,’ due process does not ‘dictat[e] the exact form such assistance must assume.’ Pennsylvania v. Finley, 481 U. S. 551, 559 (1987). Osborne’s right to due process is not parallel to a trial right, but rather must be analyzed in light of the fact that he has already been found guilty at a fair trial, and has only a limited interest in postconviction relief.”
Osborne, 557 U. S. at _.

Significantly, petitioner Osborne did not apply for relief under existing state post-conviction procedures. The Alaska post-conviction statute permitted access to DNA testing for claims of actual innocence. The Alaska constitution, as construed by case law, permits post-conviction DNA testing upon a showing “(1) that the conviction rested primarily on eyewitness identification evidence, (2) that there was a demonstrable doubt concerning the defendant’s identification as the perpetrator, and (3) that scientific testing would likely be conclusive on this issue.” Osborne v. State, 110 P. 3d 986, 995 (Alaska App. 2005). The majority found it significant that the petitioner had not utilized available state remedies:

“It is difficult to criticize the State’s procedures when Osborne has not invoked them. This is not to say that Osborne must exhaust state-law remedies. But it is Osborne’s burden to demonstrate the inadequacy of the state-law procedures available to him in state postconviction relief. These procedures are adequate on their face, and without trying them, Osborne can hardly complain that they do not work in practice.”
Osborne, 557 U. S. at _ (citations omitted).

While the Ninth Circuit had recognized a procedural due process right, the Supreme Court rejected a defense invitation to identify a substantive due process right based on “the circumstances of this case.” Osborne, 557 U. S. at _. There was “no long history” of a substantive right of “access to state evidence” to “apply new DNA-testing technology that might prove him innocent.” Osborne, 557 U. S. at _. It was inappropriate to address an issue involving policy and in which state legislatures had enacted procedures for post-conviction DNA testing. Many of the state statutes imposed certain requirements, such as a materiality showing, or an affidavit of innocence, or demonstration of diligence. As the Court noted:

“If we extended substantive due process to this area, we would cast these statutes into constitutional doubt and be forced to take over the issue of DNA access ourselves. We are reluctant to enlist the Federal Judiciary in creating a new constitutional code of rules for handling DNA. Establishing a freestanding right to access DNA evidence for testing would force us to act as policymakers, and our substantive-due-process rulemaking authority would not only have to cover the right of access but a myriad of other issues. We would soon have to decide if there is a constitutional obligation to preserve forensic evidence that might later be tested. If so, for how long? Would it be different for different types of evidence? Would the State also have some obligation to gather such evidence in the first place? How much, and when? No doubt there would be a miscellany of other minor directives.”
Osborne, 557 U. S. at _ (footnotes and citations omitted).

In conclusion, the majority opinion declined to recognize a new post-conviction right of access to DNA evidence:

“The criminal justice system has historically accommodated new types of evidence, and is a time-tested means of carrying out society’s interest in convicting the guilty while respecting individual rights. That system, like any human endeavor, cannot be perfect. DNA evidence shows that it has not been. But there is no basis for Osborne’s approach of assuming that because DNA has shown that these procedures are not flawless, DNA evidence must be treated as categorically outside the process, rather than within it. That is precisely what his §1983suit seeks to do, and that is the contention we reject.”
Osborne, 557 U. S. at _.

Justice Alito wrote a concurring opinion, joined by Justice Kennedy and also Justice Thomas in part. He found two other independent reasons to deny the claim:

“First, a state prisoner asserting a federal constitutional right to perform such testing must file a petition for a writ of habeas corpus, not an action under 42 U. S. C. § 1983, as respondent did here, and thus must exhaust state remedies, see 28 U. S. C. § 2254(b)(1)(A). Second, even though respondent did not exhaust his state remedies, his claim may be rejected on the merits, see §2254(b)(2), because a defendant who declines the opportunity to perform DNA testing at trial for tactical reasons has no constitutional right to perform such testing after conviction.”
Osborne, 557 U. S. at _ (Alito, J., concurring).

Justice Stevens wrote a dissent, joined by Justices Ginsburg and Breyer and Justice Souter in part. The dissent agreed with the procedural due process holding of the Ninth Circuit. The dissent concluded that the state violates due process by providing avenues for post-conviction relief without “providing litigants with fair opportunity to assert their state-created rights.” The dissent concluded that the state arbitrarily denied the petitioner’s claims for relief: “Throughout the course of state and federal litigation, the State has failed to provide any concrete reason fordenying Osborne the DNA testing he seeks, and none is apparent.” Osborne, 557 U. S. at _ (Stevens, J., dissenting).

Additionally, the Due Process Clause provides a right of access to evidence. The liberty interest continues to apply in the post-conviction setting. This right of access was reinforced by the many states and federal government establishing access to evidence for DNA testing, and “recent trends in legal ethics recognizing that prosecutors are obliged to disclose all forms of exculpatory evidence that come into their possession following conviction.” Osborne, 557 U. S. at _ (Stevens, J., dissenting). The state interests in finality in the criminal justice process could not override the state interest “in ensuring that justice is done in its courts and secured to its citizens,” particularly “when absolute proof of innocence is readily at hand.”

Justice Souter separately dissented. He concluded that the state “failed to provide the effective procedure required by the Fourteenth Amendment for vindicating the liberty interest in demonstrating innocence that the state law recognizes.” Osborne, 557 U. S. at _ (Souter, J., dissenting). Specifically, “given the conditions Alaska has placed on the right it recognizes, the due process guarantee requires the State to provide an effective procedure for proving entitlement to relief under that scheme, and the State has failed. On this issue, Osborne is entitled to relief. Alaska has presented no good reasons even on its own terms for denying Osborne the access to the evidence he seeks, and the inexplicable failure of the State to provide an effective procedure is enough to show a need for a §1983 remedy, and relief in this case.” Osborne, 557 U. S. at _ (Souter, J., dissenting).

Questions On Scope Of Ruling

There are questions on whether the ruling of the Court will impact many cases. Only four states have not enacted statutes concerning access to evidence for DNA testing. A federal statute also provides federal prisoners with a process to request DNA testing of evidence. See 18 U.S.C. § 3600. Since most judicial forums have existing avenues for DNA testing, the issues raised in the case likely do not affect many cases.

After the ruling, Attorney General Eric H. Holder Jr. issued a statement noting the decision was “limited” to constitutional issues and not what the proper policy for DNA testing should be. He noted his “hope that in light of today’s decision all levels of government will follow the federal government’s lead by working to expand access to DNA evidence.” See Attorney General Statement on Decision by the Supreme Court in District Attorney’s Office for the Third Judicial District et al. v. Osborne.

For more information on the case, see:

Federal Rules of Evidence