In yet another 5-4 decision, the Supreme Court held that there is no freestanding substantive due process right to post-conviction DNA testing in District Attorney’s Office v, Osborne. It’s not the holding that’s surprising, as it’s largely based on the confused, and confusing, procedural failings at the state level.
What’s surprising is that the underwhelming decision appears to be generated for no better purpose than to smack the 9th Circuit Court of Appeals with reversal. When a court’s rationale is a gooey, circular mess, there’s usually a good reason. It’s because the court doesn’t really have much of a reason for its decision, but wants a particular outcome nonetheless. Osborne is such a case.
After reciting all the expected verbiage about what great evidence DNA is, Chief Justice Roberts proceeds to justify (as succinctly explained in the syllabus) the basis for the “no new rights” policy:
What’s surprising is that the underwhelming decision appears to be generated for no better purpose than to smack the 9th Circuit Court of Appeals with reversal. When a court’s rationale is a gooey, circular mess, there’s usually a good reason. It’s because the court doesn’t really have much of a reason for its decision, but wants a particular outcome nonetheless. Osborne is such a case.
After reciting all the expected verbiage about what great evidence DNA is, Chief Justice Roberts proceeds to justify (as succinctly explained in the syllabus) the basis for the “no new rights” policy:
The Court rejects Osborne’s invitation to recognize a freestanding, substantive due process right to DNA evidence untethered from the liberty interests he hopes to vindicate with it. In the circumstances of this case, there is no such right. Generally, the Court is “reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this unchartered area are scarce and open-ended.” Collins v. Harker Heights, 503 U. S. 115, 125. There is no long history of a right of access to state evidence for DNA testing that might prove innocence. “The mere novelty of such a claim is reason enough to doubt that ‘substantive due process’ sustains it.” Reno v. Flores, 507 U. S. 292, 303. Moreover, to suddenly constitutionalize this area would short-circuit what has been a prompt and considered legislative response by Congress and the States. It would shift to the Federal Judiciary responsibility for devising rules governing DNA access and creating a new constitutional code of procedures to answer the myriad questions that would arise. There is no reason to suppose that federal courts’ answers to those questions will be any better than those of state courts and legislatures, and good reason to suspect the opposite. See, e.g., Collins, supra, at 125. Pp. 19–21.
To make it in even briefer, because the Court has never before held there to be an independent due process right to postconviction DNA evidence, the Court will not create one because it is “reluctant” to expand substantive due process rights where it hasn’t already done so. Plus, if the Court did so, then it would have to craft procedures, which isn’t its job.
Got it? Neither do I. If there already was a right, then why would the case be before the Supreme Court? And if the Supreme Court won’t decide whether there should be a due process right to post DNA evidence, then who is supposed to decide the parameters of substantive due process in the face of evolving technology? Feh.
While Osborne sits in prison for a rape conviction, which are curious Chief Justice notes limits his liberty interest since he’s guilty and imprisoned, and it’s not like guilty people have any particular interest in proving that they are actually innocent, the case will go back to the state court in Alaska for another shot at trying, via the nonspecific state procedures, to access the DNA. My understanding is that beneath the procedural surface in this case is a huge dispute between the defense and court about whether the right papers were submitted. Because Alaska has no procedure for handling this post-conviction relief, the defendant’s efforts to obtain testing were thwarted by constantly changing procedural requirements.
But the pressing question is whether Justice Roberts is of the view that there is a real Supreme Court hiding in a back room somewhere, awaiting a call to action when the Court actually plans to address issues and resolve grievances. That most states and the federal government have procedures in place hardly moots the issue of whether post-conviction access to DNA testing, as may prove the guilt or innocence of a defendant, is a substantive due process right. For the defendant, like Osborne, who is imprisoned in a state that doesn’t, the issue is very real and very important.
Sure, the Supreme Court is comprised of big picture guys, who can’t be bothered thinking about the plight of some guy named Osborne in Alaska, and certainly isn’t about to change the law of the land around this one poor schmuck’s rights. Fine, so don’t grant cert and let the Circuit decision stand. But no, they couldn’t tolerate that.
It’s questionable whether ten, twenty years from now, this decision would be of any worth whatsoever. The nation remains in the throws of trying to deal with emerging DNA technology and convictions that came down before it was available or before testing methods and procedures were improved. Perhaps these issues will all be suitably resolved over time, and problems with access to DNA will be old news. But for the moment, it’s not, and even if it’s only one man in a prison in Alaska, he’s still entitled to get one that makes some sense.
In response to the decision, the Innocence Project, representing William Osborne, put out a press release that said:
This decision goes nowhere, and certainly does nothing for poor Osborne, whose only point is to try to get his hands on the DNA to prove that he’s an innocent man. Even Chief Judge Roberts proclaims the glory of DNA for proving innocence. So where are they hiding the real Supreme Court, the one that actually decides things about due process? The one we have doesn’t seem to be of much use to anyone.
Got it? Neither do I. If there already was a right, then why would the case be before the Supreme Court? And if the Supreme Court won’t decide whether there should be a due process right to post DNA evidence, then who is supposed to decide the parameters of substantive due process in the face of evolving technology? Feh.
While Osborne sits in prison for a rape conviction, which are curious Chief Justice notes limits his liberty interest since he’s guilty and imprisoned, and it’s not like guilty people have any particular interest in proving that they are actually innocent, the case will go back to the state court in Alaska for another shot at trying, via the nonspecific state procedures, to access the DNA. My understanding is that beneath the procedural surface in this case is a huge dispute between the defense and court about whether the right papers were submitted. Because Alaska has no procedure for handling this post-conviction relief, the defendant’s efforts to obtain testing were thwarted by constantly changing procedural requirements.
But the pressing question is whether Justice Roberts is of the view that there is a real Supreme Court hiding in a back room somewhere, awaiting a call to action when the Court actually plans to address issues and resolve grievances. That most states and the federal government have procedures in place hardly moots the issue of whether post-conviction access to DNA testing, as may prove the guilt or innocence of a defendant, is a substantive due process right. For the defendant, like Osborne, who is imprisoned in a state that doesn’t, the issue is very real and very important.
Sure, the Supreme Court is comprised of big picture guys, who can’t be bothered thinking about the plight of some guy named Osborne in Alaska, and certainly isn’t about to change the law of the land around this one poor schmuck’s rights. Fine, so don’t grant cert and let the Circuit decision stand. But no, they couldn’t tolerate that.
It’s questionable whether ten, twenty years from now, this decision would be of any worth whatsoever. The nation remains in the throws of trying to deal with emerging DNA technology and convictions that came down before it was available or before testing methods and procedures were improved. Perhaps these issues will all be suitably resolved over time, and problems with access to DNA will be old news. But for the moment, it’s not, and even if it’s only one man in a prison in Alaska, he’s still entitled to get one that makes some sense.
In response to the decision, the Innocence Project, representing William Osborne, put out a press release that 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,” [Peter] Neufeld said.If the majority of the Supremes didn’t want to be bothered with the plight of this small number of people, that’s fine. Then don’t take the case. But don’t take the case and then punt with an “it’s not my job” decision.
This decision goes nowhere, and certainly does nothing for poor Osborne, whose only point is to try to get his hands on the DNA to prove that he’s an innocent man. Even Chief Judge Roberts proclaims the glory of DNA for proving innocence. So where are they hiding the real Supreme Court, the one that actually decides things about due process? The one we have doesn’t seem to be of much use to anyone.
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Our Chief Justice was quoted during his confirmation hearings as saying something like: “I’ll decide cases based on the constitution. If the constitution says the little guy wins, then the little guy will win; if the constitution says the big guy wins, then the big guy will win.”
This is one of those inadvertently revealing comments. He’s trying to say that the same rule will apply to everyone, but in the process he reveals that he thinks in the “big guy-little guy” category.
Why would he even think in such terms?
Well as it happens the SCOTUS is, more than anything else, constantly concerned with limiting the access of the unwashed to the federal courts. They have been very, very successful at this.
If you’re looking for guidance from the SCOTUS, they actually are being quite clear when you look at their body of work as a whole over the last, say, 35 years. The overarching and abiding rule is: unless you’re the government, or quasi government like a bank or big insurance company, don’t bother us.
The court’s reasoning should have been informed by the surprising fact that the DA’s office bothered to litigate this far. Osborne was going to pay for his own test, for christsakes – what is the state doing fighting that? The court should have either not granted cert or found that a due process right exists in those circumstances where the authorities cavalierly dismiss requests like this (which cost the state less the fees they’d spend responding to the first federal court petition).
The Court seems to be saying, “We’re not seeing a new due process right here, to post-conviction DNA testing.”
Which seems to be based on the facts of this case: Osborne’s lawyer had a chance to test the DNA at trial, but decided not to; DNA was not the key evidence in the prosecution’s case; and Osborne admitted guilt to his parole board. If any of these things were not true, there’s a better argument for a due process violation.
And they punt pretty much the way they always do: “This case doesn’t present a federal constitutional violation, but state and federal legislatures may enact the right Osborne wants, any time.”
I’ve always thought they did it that way to prompt the other two branches of government, and the electorate: “If you want this to happen, here’s how you should do it.”
I don’t expect much from a conservative court… but the Osborne decision is exactly what I’d expect from a conservative court.
So the lawyer decided to use her own judgment, not believing her clients protestations of guilt, loses the case and thus precludes him from ever obtaining proof? See the problems, both caused by the defense lawyer and for the defendant thereafter.