Osborne Thoughts

The U.S. Supreme Court delivered its opinion in District Attorney's Office v. Osborne today, rejecting, by a vote of 5-4, a prisoner's claim to post-conviction DNA testing. I have a personal connection with the case in that, along with several colleagues (and the help of a terrific law student), I filed the original lawsuit in U.S. District Court for the District of Alaska. Some thoughts about the opinion:

(1) It's important to be clear about what the Court says and what it doesn't say. The Court said that individuals have no federal constitutional right to post-conviction DNA testing. But that doesn't mean that individuals have no statutory right to post-conviction DNA testing. And indeed, 47 states have passed laws that allow defendants to obtain post-conviction DNA testing. Those statutes are not disturbed by today's ruling. To put it another way: the case asked whether states must provide access to post-conviction DNA testing. The Court said no. But states can still choose to provide access to that testing – and almost every state has chosen to do so.

(2) Today's opinion has very limited practical effect. In the three states that have no post-conviction DNA testing statute – Alaska, Oklahoma, and Massachusetts – it leaves defendants, like Osborne, with no clear path to post-conviction DNA testing. (Though in Massachusetts, defendants can often get testing with the consent of prosecutors or under the state's general postconviction law.) In the other 47 states, today's opinion will have almost no effect. A couple of those 47 states, like Alabama, have unusually narrow statutes that could potentially have been broadened by a ruling for Osborne, but generally speaking, in the 47 states with DNA statutes, today's opinion was of very little practical consequence.

(3) It's hard for me to see how the case could have come out any other way. While I don't like the decision, given the current composition of the Supreme Court, this decision had to be expected. In fact, I'm surprised it was as close as it was. On the current Court, not only the conservatives but also the ostensible liberals are often loathe to preserve – much less extend – the rights of criminal defendants. This is perhaps most true in the post-conviction context. Whether one views Osborne as asking the Court to create a new right (to post-conviction DNA testing) or merely to extend a right (of discovery) to a new context (post-conviction), one had to expect outright hostility from the four conservatives and deep skepticism from Kennedy and the four moderate-liberal justices.

(4) The record in the Osborne case made it a less-than-ideal vehicle through which to establish a new right to post-conviction DNA testing. Osborne actually had gotten a primitive form of DNA testing prior to trial. That testing was of limited probative value, but it nevertheless required Osborne to argue that he not only had the right to DNA testing, he had the right to additional DNA testing in a case where such testing had already been performed. Given the facts of his case, I believe Osborne deserves that additional testing – the pre-trial testing was not particularly discriminating and new testing could prove him innocent – but it would have been a lot easier to convince SCOTUS to create a new right to post-conviction DNA testing in a case where DNA testing had not already occurred. For those justices who fear the specter that defendants would use a federal constitutional right to seek additional (frivolous) DNA testing every time there is a small incremental change in DNA technology, Osborne's (legitimate) claim for additional testing gives them something to latch on to.

(5) In some ways what Osborne was asking for seems like common sense: the right to employ a uniquely probative new technology that has the power to prove him innocent. But in a legal sense what he was asking for was actually quite bold. He was asking the Supreme Court to extend the right of defendants to compel discovery -- a right which generally speaking exists pre-trial -- into the post-conviction context. This is no small thing. American courts tend to see trial as the stage in the legal process where factual investigation occurs and matters of fact get resolved. Appeals, including post-conviction proceedings, tend to focus on questions like was the trial fair? Were the defendant's rights respected? But appeals tend not to address questions like was the trial accurate? And did the jury reach the correct decision? With some exceptions, those latter types of questions are resolved at trial; after trial, courts are loathe to even inquire into the matter. Courts call this principle finality. The idea is that fact finding can't go on indefinitely, and in our legal system trial is where it best occurs – with live witnesses and in front of juries. After trial, generally speaking, one can challenge the procedure of the trial but not the substantive content of the evidence presented. Osborne was asking the Court to constitutionalize an exception to this widely accepted and, by many judges, enthusiastically embraced doctrine. From this perspective, what Osborne was asking doesn't seem quite so simple or obvious.

(6) Having said all that, finality is a beast that post-conviction defense lawyers need to confront head on. The principle is based in a reasonable idea: in a world of limited judicial resources, trials can't go on forever; each time a new fact arises in an old case, we can't impanel a new jury and have a whole new trial. At the same time, if there's anything the DNA cases have shown, it's that trials sometimes get it wrong, and those wrongs can sometimes be corrected.

Sometimes, for a variety of reasons, compelling evidence of innocence doesn't arise at trial; it only comes to light afterwards. New technologies like DNA testing come about. New witnesses emerge who had previously not come forward. New information about alternative suspects comes to light. Witnesses who lied at trial – to protect themselves or gain a benefit from prosecutors or for countless other reasons – may have pangs of conscience and only later be willing to come clean. Earlier scientific understandings, like hair microscopy, may come to be seen as invalid. Sometimes time distorts truth, but sometimes the truth can only emerge with time.

The criminal justice system makes mistakes. It always will. The "system," is just a collection of people – judges, juries, attorneys, defendants, etc. – and people are fallible. The question is, what are we as people going to do about those mistakes? Will we invoke finality as a shibboleth to shield us from our inevitable imperfections or will we have the courage honestly to confront them and correct them as best we can?

As defense lawyers we can't fruitfully assert that every new fact that emerges post-trial, no matter how minor, is grounds for a new trial. At the same time, we must forcefully assert that when important new facts do emerge, post-conviction courts must be open to that evidence and take it seriously. The Osborne ruling is a setback, but the fight for the right to introduce new evidence post-conviction will continue. The credibility of our legal system depends on it.