Court Weighs Convict's Right To Test DNA

The Supreme Court heard arguments Monday on whether convicts must always have the right to test DNA evidence left from their cases using newer scientific methods. The case pits the interest of people who say they were wrongly convicted against the interests of governments to keep costs down and achieve finality in prosecutions.

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Today the Supreme Court wrestled with a question of DNA testing. At issue is whether a convict has a constitutional right to test DNA that could definitively prove his innocence. Although new DNA tests have freed hundreds of people wrongly convicted in recent years, six states have no law providing for testing after conviction.

NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: William Osborne was convicted in Alaska 16 years ago of a brutal rape and assault. Prosecutors relied in part on DNA evidence that tagged Osborne as the culprit. But the DNA methodology used back then was so primitive that it was not more accurate than blood typing.

Today's DNA tests are a world apart. They are so accurate that the odds of two people sharing the same DNA signature are one in several trillion. A federal appeals court ruled that Osborne has a constitutional right to access evidence from his case so that the new test can be performed at his own expense.

Alaska appealed to the U.S. Supreme Court, backed by 31 other states and the federal government. They all claimed that a new constitutional right would unfairly burden the states.

On the snowy wind-blown steps of the Supreme Court today, lawyer Peter Neufeld of the Innocence Project noted that of the 232 people conclusively exonerated by DNA, many had overwhelming non-DNA evidence against them, including confessions. Alaska, however, maintains there is no constitutional right to such evidence after the trial.

Inside the Supreme Court today, Alaska's Assistant Attorney General Ken Rosenstein immediately faced skeptical questions, mainly from the Court's liberals.

Justice Souter: Osborne's argument is that this evidence is so important that the state has no valid interest in preventing him from testing it.

Rosenstein maintained that Osborne could have access under state law if he signed an affidavit asserting his innocence. Without that, he said, this is just a fishing expedition.

Justice Ginsberg: Has there been any case in Alaska where this mechanism was used to get DNA evidence?

Answer: In one case, state courts ordered testing but the evidence had been destroyed. There are six other cases pending.

Justice Breyer: He's willing to pay for it. Why don't you want to give it to him?

Answer: Because if he doesn't allege actual innocence this is a meaningless exercise.

Well, then, the Justices wanted to know, if he actually filed a sworn innocence claim, as the state now suggest he should, would the state agree to give him access to the DNA?

It's conceivable, said Assistant Attorney General Rosenstein.

Justice Kennedy: All you can say is, it's conceivable?

Justice Souter: If he walks into court and says, I'm innocent, subject to the penalties of perjury, you will not let him look at the DNA?

Answer: I cannot say we actually would.

Supporting this state in the Supreme Court today was the federal government, represented by the new Deputy Solicitor General Neal Katyal. He noted that Osborne had confessed to his guilt at his parole hearing.

Justice Stevens: Haven't we had cases where DNA proved a defendant innocent who'd confessed?

Answer: Yes.

Justice Kennedy: Do you think there's a constitutional right to establish innocence after conviction, based on new evidence?

Katyal fudged but under pressure finally said: The U.S. government thinks there is no constitutional right to make a post-conviction claim of actual innocence.

Arguing the other side was Peter Neufeld, who contended that Osborne repeatedly has asserted his innocence.

Justice Ginsberg: Under oath? Under penalty of perjury?

Answer: The state has never asked for that until a week ago in its last brief to this court, said Neufeld. This is the first case we know of anywhere in this country where the prosecutor concedes a DNA test would slam dunk prove guilty or innocence and doesn't consent to it.

Chief Justice Roberts: Was he under oath when he confessed at his parole hearing?

Answer: I believe so, but state law requires a convict to responsibility for his crime in order to get paroled.

Chief Justice Roberts: So he committed perjury either way.

Justice Alito: How could this right be limited to DNA evidence?

Answer: I hope the day will come when there are more truth machines like DNA. But this is the only one now.

Both Justices Kennedy and Alito worried about defendants gaming the system, waving DNA testing before trial and then filing a lawsuit to get it later, after conviction. Neufeld suggested that worry is senseless, since the convict wouldn't get a new hearing. All he would get is a test, and he'd be in prison the whole time, not to mention that today, prosecutors routinely run DNA tests before trial. Nina Totenberg, NPR News, Washington.

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