WASHINGTON – The Supreme Court spent an hour Monday trying to figure out if a convicted rapist—or any other criminal—has the constitutional right to reexamine DNA evidence years after his trial. It wasn’t clear when the oral arguments ended how they might rule.
The complexities of the question were made more difficult by the specifics of the case before them.
Justice David Souter led the charge for the ability of convicts like William Osborne of Alaska to have the right to re-test DNA evidence. "[H]is strongest argument or his — his basic argument is this evidence is potentially so important that the State has no valid interest in keeping [Osborne] at least from seeing it; i.e., testing it."
But other justices weren't as comfortable with that idea. Justice Antonin Scalia was the most vocal in his opposition. He suggested such a right would allow the accused to "game the system." A concern also shared by Justice Anthony Kennedy who told Osborne's lawyer "what you are doing is setting up a game in which it would be really unwise to have the DNA test. Take your chances. You have a — you have a built-in — you have a — a built-in second chance."
Chief Justice John Roberts repeatedly expressed concern that if the Court were to grant the right for post-conviction DNA testing it would then open a slew of other problems. "I'm trying to figure out what the limit of the constitutional right you're asserting is," Roberts asked. He went on to wonder if there would be re-testing rights at other stages in the trial process or even for fingerprint analysis and he questioned how long states would have to preserve DNA evidence in the name of this right.
Osborne was convicted of raping and nearing killing an Anchorage prostitute in 1993. At trial, his lawyers made the strategic decision not to seek more stringent DNA testing for fear that it would more strongly inculpate their client. Osborne is now seeking to re-test that DNA on the hope that it will lead to his freedom.
Osborne however has not claimed innocence. A number of the justices seemed bewildered by this fact and wondered why they should confer a constitutional right on someone who doesn't even claim he is an innocent man.
The justices learned during oral arguments that under Alaska law, Osborne could ask for the retesting if he also claims innocence. Something he has yet to do.
This development opens the door for the Court to send the case back for further proceedings without answering the constitutional question. It is a potential outcome supported by the federal government which joined the case on behalf of Alaska. "[T]he unusual facts of this case, which include failure to attest to actual innocence under threat of perjury, two recent confessions to the crime, and a tactical decision at trial to forego a highly discriminating....DNA test, all together make this a particularly poor candidate for recognizing a new constitutional entitlement," said Neal Katyal arguing his first case before the Court as Deputy Solicitor General.
If the Court does issue a ruling declaring a federally protected constitutional right to post-conviction DNA testing it isn't clear that it would have that much of an impact because most states already have statutes in place for such testing. Alaska is one of six states that does not guarantee that right.