David Kirkpatrick

June 18, 2009

Supreme Court fails DNA testing case

Filed under: et.al. — Tags: , , , , — David Kirkpatrick @ 1:50 pm

In a 5-4 decision (take a guess at the line-up on both sides of that vote), the Supreme Court ruled convicted prisoners do not have the right to DNA testing to attempt to prove their innocence. The majority cited the fact 46 states already allow for DNA testing post-conviction as reason that ability should remain with the states.

If these contentious 5-4 ruling keep happening with the same five siding for the power of statism and corporate interests over individual liberty I’m guessing the Roberts court will be seen as phenomenally regressive.

Many of the current court’s decisions run against popular sentiment and even against the stated judicial views of those deciding in the majority. There is a very real sense of situational justice at play, and that is not the role of the Supreme Court.

From the link:

Justice John Paul Stevens wrote a dissent expressing his dismay that the majority had chosen to approve of Alaska’s denial of the evidence sought by the defendant. “The DNA test Osborne seeks is a simple one, its cost modest, and its results uniquely precise,” Justice Stevens said.

Since 1992, 238 people in the United States, some who were sitting on death row, have been exonerated of crimes through DNA testing. In many of those cases, the DNA testing used to clear them was not available at the time of the crime.

But several aspects of the Osborne case did not make the defendant a sympathetic one, so perhaps his case was not the ideal vehicle for those hoping that the nation’s highest court would find a constitutional right to “post-conviction” DNA testing — that is, after the normal appeals have been exhausted.

Here’s Reason mag’s Radley Balko on the case:

Representing the convicted man, the Innocence Project argued that a right to access a simple test that could establish actual innocence would be covered by the Constitution’s due process clause.

I wrote about the case, District Attorney’s Office for the Third Judicial District v. Osborne, for The Daily Beast last March.

Update: via @radleybalko, head below the fold for the Innocence Project’s reaction.

U.S. Supreme Court Decision on DNA Testing Is Disappointing But Will Have Limited Impact, Innocence Project Says

(WASHINGTON, DC; June 18, 2009) – Today’s U.S. Supreme Court decision denying post-conviction DNA testing to an Alaska prisoner is flawed and disappointing but will have a limited impact on cases across the country, according to the Innocence Project.

William Osborne sought DNA testing that could prove his innocence in a 1993 rape; the Innocence Project represents Osborne. Although the Supreme Court’s 5-4 decision did not completely deny that there is a constitutional right to DNA testing, it found that Osborne’s constitutional rights were not violated.

The majority opinion, written by Chief Justice John Roberts, said Osborne’s rights were not violated because of the specific facts of his case and Alaska’s procedures for post-conviction appeals. The decision erroneously asserts that Alaska has an adequate process for granting DNA testing to people who have been convicted. Alaska is the only state in the nation with no known case of a prisoner receiving DNA testing, either through a court order or a prosecutor’s consent. The decision also said state legislatures and state courts should determine how and when people who have been convicted of crimes can get access to DNA testing that could prove their innocence.

“While this is a deeply flawed and disappointing decision, we have always said this case would have a very limited impact. In the vast majority of cases, prisoners are granted DNA testing under state law or because prosecutors consent to testing without a court order. That will continue to happen,” said Innocence Project Co-Director Peter Neufeld, who argued on behalf of Osborne at the U.S. Supreme Court.

According to the Innocence Project, which is affiliated with Cardozo School of Law, Congress and 47 states have passed legislation granting DNA testing in at least some cases. “Today’s decision recognized the unique power of DNA testing to prove guilt or innocence and noted the progress we’ve made in state legislatures. We are more determined than ever to pass laws granting DNA testing in Alaska, Massachusetts and Oklahoma, and to improve the existing laws in Alabama, Kentucky and other states,” Neufeld said.

In states without adequate laws granting DNA testing, federal court can be the last option – as it was for Osborne. Less than a dozen of the 240 people nationwide who were exonerated through DNA testing received that testing through federal court. “Most people who need DNA testing to prove their innocence will not be affected by today’s ruling, but the small number of people who are impacted may suffer greatly. As a result of this decision, more innocent people will languish in prison and some may die in prison because they were prevented from proving their innocence,” Neufeld said.

In the majority opinion, the Supreme Court ultimately decided that the finality of a conviction is more important than making sure the right person was convicted. “We sharply disagree that finality is more important than scientific certainty. Fortunately, most state legislatures and state courts also disagree and grant our clients DNA testing that has proven innocence in case after case,” said Nina Morrison, Staff Attorney at the Innocence Project who worked on the Osborne case.

Osborne is in prison in Alaska. In a statement issued by the Innocence Project today, his sister urged Alaska legislators to pass a law granting post-conviction DNA testing. “This ruling is devastating because the Supreme Court was William’s last hope. Alaska should have a law for DNA testing in cases like this, and we hope they pass one quickly,” said Osborne’s sister, Evelyn Smalls, who attended oral arguments in the case at the Supreme Court earlier this year.

Background: William Osborne’s case

In March 1993, Dexter Jackson and another man (both of whom were black) solicited sex from a white prostitute (identified as K.G. in court documents) in Anchorage. When K.G. got into Jackson’s car, the men drove her to a secluded location, threatened her at gunpoint and robbed her.  K.G. was then forced to perform a sex act on Jackson while the other man vaginally raped her, using a blue condom he had taken from her. K.G. attempted to flee, and the men beat her severely. One of the men (who K.G. said was the second perpetrator) shot her, and the bullet grazed her head. The men then buried her in the snow and left her for dead.

Within days, Jackson was arrested. He was carrying a knife that belonged to K.G., and K.G.’s blood was found in his car. Other physical evidence linked him to the crime, and he was arrested. He confessed and reportedly said Osborne was the second perpetrator; because Jackson and Osborne were tried together, Jackson’s statements about Osborne were not used against him. The victim identified Osborne as the second perpetrator – but her initial identification was tentative, there were substantial differences between her description of the second perpetrator and Osborne’s appearance, and she had extremely poor vision and was not wearing glasses or contacts on the night of the crime. Osborne maintained that he was with Jackson later on the night of the crime, but he had a documented alibi for the timeframe during which Jackson and another man were committing the crime. Jackson and Osborne were convicted; Osborne was sentenced to 26 years in prison. (He was released on parole in 2006, after making the difficult decision to admit guilt to a crime he says he didn’t commit, since in most cases an admission can be favorable for receiving parole. Since being released, Osborne has been arrested on unrelated charges.)

Rudimentary DQ-Alpha DNA testing on fluids from the blue condom showed that Osborne (along with 14.7% to 16% of all African Americans) was “possibly a source” of the fluids. At the time of Osborne’s trial, a state expert considered conducting the only other kind of DNA testing available at the time, RFLP testing; that kind of DNA testing cannot yield a result from small or degraded items of evidence, and the expert said the evidence was too degraded to expect a result. Osborne pleaded with his trial attorney to attempt RFLP testing at another laboratory, but his attorney refused. Osborne also wrote to an out-of-state DNA expert for help, but under state law the decision to pursue RFLP testing was left to his attorney.

In 2001, Osborne sought more advanced DNA testing in state court. That case proceeded unsuccessfully for several years, and in the meantime Osborne began seeking DNA testing in federal court. In 2008, the U.S. Court of Appeals for the Ninth Circuit ruled that it is unconstitutional to deny him access to DNA testing. The state appealed that ruling to the U.S. Supreme Court, which heard oral arguments in the case in March.

The Innocence Project took his case in 2003, working with local counsel, Randall Cavanaugh of Kalamarides & Lambert and Robert Bundy of Dorsey & Whitney LLP in Anchorage. At the U.S. Supreme Court, Williams & Connolly LLP is co-counsel with the Innocence Project, Bundy and Cavanaugh. Kannon Shanmugam, Anna-Rose Mathieson and Jaynie Lilley are handling the case for Williams & Connolly.

Background: DNA exonerations relevant to the Osborne case

Nationwide, 240 people have been exonerated through DNA testing after serving an average of 12 years in prison for crimes they did not commit. Exonerations have taken place in 33 states and the District of Columbia.

47 states and the District of Columbia have passed statutes granting access to post-conviction DNA testing. The first state to pass such a statute was New York in 1994. The most recent states to pass statutes were South Carolina and Wyoming in 2008 and South Dakota and Mississippi in 2009. A federal statute granting post-conviction access to DNA testing in federal cases passed in 2004.

The three states without statutes granting post-conviction access to DNA testing are Alaska, Massachusetts and Oklahoma.

Among the 47 states with laws granting post-conviction DNA testing, several are inadequate and in need of improvement. Alabama and Kentucky, for example, only allow DNA testing in capital cases, and Pennsylvania only allows DNA testing for people convicted before 1995.

Alaska is the only state in the nation where there have been no known cases of prisoners being granted DNA testing through a court order or the consent of a prosecutor.
In 82% of the exoneration cases for which records are available, prosecutors consented to DNA testing.

In 25% of the wrongful convictions overturned through DNA testing nationwide, innocent people confessed or admitted to crimes they did not commit. In 5% of all cases that resulted in DNA exonerations, innocent people actually pled guilty to crimes they didn’t commit.


The Innocence Project, which is affiliated with Benjamin N. Cardozo School of Law at Yeshiva University, is a national litigation and public policy organization dedicated to exonerating wrongfully convicted people through DNA testing and reforming the criminal justice system to prevent future injustice. The Innocence Project was founded in 1992 by Peter Neufeld and Barry Scheck. To date, 240 people nationwide have been exonerated through DNA testing and dozens of states have implemented critical reforms to prevent wrongful convictions.



  1. Express Labs was started to help companies avoid hiring individuals who abuse drugs and alcohol. Having a Drug Free Workplace can significantly decrease safety and health hazards. Additional costs associated with drug and alcohol abuse include: Lateness, absenteeism, decreased productivity, short-term disability claims and employee turn-over. Even if you have a drug testing program in place, we can still provide you with our services. We are a Preferred Collection Site for Quest Diagnostics, LabCorp, Kroll and MedTox.

    Comment by Anu M — June 25, 2009 @ 2:45 pm

  2. I have to say, every time I come to davidkirkpatrick.wordpress.com you have another fascinating post up. One of my friends was telling me about this topic a couple weeks ago. I think I will send them the link here and see what they say.

    Comment by TRISHA FRY — May 31, 2010 @ 6:56 pm

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: