District Attorney's Office for the Third Judicial District, et al. v. Osborne

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Authorship: Erica Goldberg

Contents

[edit] Briefs and Documents

Docket: 08-6

Issue: Whether a defendant may access a state’s biological evidence following a conviction under 42 U.S.C. 1983 or the Due Process Clause of the Fourteenth Amendment.

Merits briefs

Amicus briefs

Oral Argument

Transcript

Opinion: REVERSED AND REMANDED in an opinion by Chief Justice Roberts

[edit] Argument Preview

On March 2, 2009, in No. 08-6, District Attorney’s Office for the Third Judicial District v. Osborne, the Supreme Court will hear argument in a case that involves the relationship between the most cutting-edge DNA technology, capable of establishing guilt or innocence with unprecedented conclusiveness, and the longstanding constitutional right for the accused to receive fair process.

Fourteen years after his conviction for kidnapping and sexual assault, William Osborne seeks access to sperm deposited inside a condom found at the scene of the crime. At his own expense, he wishes to subject this evidence to sophisticated DNA testing, unavailable at the time of his trial, which he believes will definitively prove his innocence. During post-conviction proceedings, the state of Alaska denied Osborne access to this DNA evidence because of the other factors demonstrating his guilt. Osborne then brought a suit in federal court claiming that Alaska’s refusal to allow access to the evidence violated his due process rights under the Fourteenth Amendment. The Ninth Circuit agreed.

The Supreme Court must now address two decisions by the Ninth Circuit that have potentially far-reaching implications. First, the Ninth Circuit held that Osborne can bring a lawsuit against Alaska to access evidence instead of seeking a writ of habeas corpus, the procedural device afforded prisoners for invalidating a state conviction in federal court. The Ninth Circuit also held that the due process clause guarantees Osborne the right to access the DNA evidence so that he may ultimately bring a habeas corpus action to challenge his conviction.

In holding that Osborne has a right to access the DNA evidence, the Ninth Circuit also assumed without deciding a question that the Supreme Court has carefully avoided in the past ─ whether a prisoner with access to this evidence can then overturn his conviction by asserting a “freestanding innocence” claim, based solely on the ground that he is not guilty rather than on any trial defects. If the Supreme Court overturns the Ninth Circuit’s decision, it may have to grapple with this important question.

[edit] Background

In 1993, two men drove an Alaska prostitute, K.G., to an abandoned area and brutally assaulted and raped her. The passenger of the car wore a blue condom during the sexual assault. The men then buried K.G. in the snow and left her for dead, and she was picked up by a passing car. Police found a blue condom and other forensic evidence at the scene of the crime.

A week later, Dexter Jackson, the driver who raped K.G., was found by Alaska police. Jackson told the police that Osborne was his passenger, and K.G. identified both men as the likely perpetrators. However, the description of the passenger that K.G. had given police was of a man substantially older and heavier than Osborne. In addition, Osborne had a mustache, and K.G. had described the passenger as clean-shaven.

Alaska’s crime lab subjected the sperm found in the blue condom to the “DQ Alpha” DNA test, which identifies .the genes at a single spot on one chromosome The sperm had the same DQ Alpha type as one in every six or seven African Americans, including Osborne. Although another, more discriminating type of DNA test – RFLP testing – was also available, Osborne’s trial attorney did not request this testing, either because she felt the DNA sample was too degraded to ensure this test’s accuracy or for other strategic reasons.

Osborne was convicted of the kidnapping and rape of K.G. in 1994 and sentenced to 26 years in prison. He later applied for post-conviction review in the Alaska Supreme Court, alleging that he had a due process right to have the forensic evidence retested using methods even more precise than the two methods available at the time of his trial. While his state appeals were proceeding, Osborne filed a civil rights suit in federal court under 42 U.S.C. § 1983. He argued that Alaska had deprived him of his due process rights by denying him access to the biological evidence found at the crime scene. Osborne’s suit asked the federal court to compel Alaska to provide him with this evidence so he could perform two types of DNA analysis, “STR” analysis and “mtDNA” analysis, which would produce a genetic profile shared by only one in a billion people. Thus, Osborne argued that if his DNA matched the DNA found in the blue condom, it would decisively establish his guilt; if the two sets of DNA did not match, his innocence would be affirmatively proven.

The federal district court dismissed Osborne’s complaint, holding that Osborne may not use a federal civil rights suit to seek access to this evidence. Citing the Supreme Court’s decision in Heck v. Humphrey, the district court held that because access to the DNA evidence could invalidate his state-court conviction, Osborne could only seek to access this evidence through a habeas proceeding – a much more stringent procedural device that requires exhaustion of all state court remedies before suing in federal court.

[edit] The Decision Below

The Ninth Circuit reversed the district court, holding that Heck does not prohibit Osborne’s suit. In Heck, a criminal defendant brought a § 1983 civil rights suit for malicious prosecution, for which one of the elements is an invalid conviction. The Supreme Court dismissed this civil rights action and held that because the defendant’s success on his malicious prosecution lawsuit would necessarily undermine his state-court conviction, he was instead required to file a habeas proceeding. The Ninth Circuit distinguished Osborne’s case from Heck on the ground that access to DNA evidence does not necessarily invalidate a state-court conviction; the evidence could also demonstrate Osborne’s guilt or prove inconclusive.

In a separate decision, the Ninth Circuit also held that the substance of Osborne’s § 1983 suit was successful because the due process clause of the Fourteenth Amendment guarantees him the right to access the state’s DNA evidence, even after conviction. The appeals court extended the seminal case of Brady v. Maryland, which established a defendant’s pre-trial right to access exculpatory evidence in the government’s possession, to create a post-conviction right for the defendant to access potentially favorable evidence. The Ninth Circuit limited its holding to cases like Osborne’s in which there is a reasonable probability that, if the exculpatory evidence were provided to Osborne, he could later prove that he is probably innocent in a freestanding innocence claim.

[edit] Petitions for Certiorari

The Attorney General of Alaska filed a petition for certiorari in which it asked the Court to overturn both of the Ninth Circuit’s decisions. The petition stressed that Heck bars Osborne’s lawsuit because access to the DNA evidence is a necessary step in overturning his conviction. Alaska also argued that a “freestanding innocence” claim has never been permitted by the Supreme Court, and that therefore the Ninth Circuit’s articulation of a standard allowing for access to evidence if there is a “reasonable probability” of winning a freestanding innocence claim is misguided and logically incoherent.

Opposing certiorari, Osborne emphasized that certiorari was not warranted because the vast majority of states have already enacted statutes allowing for post-conviction access to DNA evidence in certain circumstances. Osborne also disputed the petition’s contention that courts do not permit freestanding innocence claims as a basis for overturning a conviction.

[edit] Merits Briefs

The Supreme Court granted certiorari on November 3, 2008 on the questions (1) whether a criminal defendant can use a § 1983 suit to access biological evidence after his conviction, and (2) whether the due process clause of the Fourteenth Amendment requires post-conviction access to biological evidence, which is unavailable at the time of trial, that could conclusively establish guilt or innocence.

The parties’ briefs confront several critical issues. In addition to their disagreement over whether Heck v. Humphrey bars Osborne’s civil rights suit, the briefs disagree on the relevance of state statutes that already guide the availability of DNA evidence to prisoners. Alaska contends that the Ninth Circuit’s creation of a constitutional right to access evidence held by the state will nullify the state statutes addressing this issue, some of which differ from the standards applied by the Ninth Circuit, and will eliminate the states’ ability to experiment with approaches for allowing prisoners access to new technologies. Osborne, in turn, argues that Alaska is one of only six states in which inmates have no statutory rights to access DNA evidence, and that the state’s position as an outlier merely highlights the unconstitutionality of prohibiting Osborne from having access to this evidence.

In Osborne’s view, the Ninth Circuit correctly held that he has a due process right to access DNA evidence because he has a liberty interest in meaningful access to justice that is not extinguished after the trial. Osborne also offers a new argument in favor of affirmance, explaining that because he is willing to incur the expense of the DNA testing, there is no burden on the state in providing it, and the state’s unwillingness to provide this evidence is therefore so irrational as to be unconstitutional. Alaska, to some extent, dismantles this logic, arguing that Brady v. Maryland addresses only pre-trial disclosure rights necessary to ensure a fair trial; the same disclosure requirements do not exist once a defendant is convicted.

Osborne and Alaska finally differ with respect to the issue lurking behind the two questions presented: whether defendants may challenge convictions on innocence grounds even if they have received a fair trial. Osborne implies that the Supreme Court need not address this issue because a due process right of access to DNA evidence does not mean that a defendant will necessarily challenge his sentence using a freestanding innocence claim after accessing the evidence. If Osborne’s DNA evidence exonerates him, he can apply for clemency or a pardon without ever having to challenge his conviction through the courts. Alaska counters that a post-conviction due process right to access evidence is inexorably intertwined with the ultimate right to bring a freestanding innocence claim, which it does not regard as enshrined in the Constitution.

[edit] Oral Argument Recap

Because so much is at stake in the case of District Attorney’s Office v. Osborne, including whether criminal defendants have a post-conviction right to access DNA evidence and whether they can sue under 42 U.S.C. § 1983 to vindicate that right, the March 2 oral argument was a battle over how to frame the relevant issues. Argument revealed a political schism among the Court, but even the conservative Justices were troubled by the prospect of restricting prisoners’ access to DNA evidence. Conversely, even the liberal Justices searched for a way to avoid constitutionalizing this issue, and hoped that Alaska would simply offer Osborne the remedy he deserves. Osborne’s fate may rest in Justice Kennedy, whose decision in turn may depend on the liberals’ ability to narrowly define a constitutional right.

Kenneth Rosenstein, the Assistant Attorney General of Alaska, began by arguing that § 1983 is an improper procedural device for asserting a post-conviction constitutional right to access DNA evidence. Rosenstein contended that, because Osborne is seeking to invalidate his conviction, he must file a habeas petition to obtain that evidence.

Justice Souter led the questioning with an assault on this logic. He posited that § 1983 is appropriate because Osborne does not know if the new DNA tests will invalidate his conviction; he simply wants access to the DNA to determine that issue. Then, if the DNA testing is exculpatory, Osborne can file a habeas petition to be released from prison.

Justice Scalia rescued Rosenstein from this line of questioning by exposing a problematic inconsistency in Osborne’s position: If Osborne is entitled to use § 1983 because he cannot yet assert his innocence, that weakens his constitutional claim that he has a right to DNA evidence after conviction. According to Scalia, Osborne could make a stronger claim if he asserted that DNA testing would prove his innocence, but this type of claim might render § 1983 inappropriate as a mechanism for accessing the evidence.

The other Justices then joined the fray until Justice Breyer clearly stated that, procedural issues aside, in his view this case is about whether the state must give Osborne the DNA evidence. This issue especially troubled the liberal Justices, who could not understand why Alaska would deprive Osborne of evidence that has the potential to conclusively prove guilt or innocence. As Justice Breyer asked, “Now, why don’t you want to give it to him?”

Deputy Solicitor General Neal Katyal, arguing on behalf of the United States as amicus curiae in support of Alaska, addressed Justice Breyer’s question by arguing that the Ninth Circuit’s extension of Brady rights to the post-conviction context would nullify states’ efforts to legislate in this area. Katyal then recounted all of the evidence indicating Osborne’s guilt, prompting Justice Kennedy to ask whether a constitutional right could be narrowed to cases in which the DNA evidence is highly likely to lead to exoneration.

The Court then grappled with creating a narrowly defined constitutional right during the questioning of Osborne’s attorney, Peter Neufeld. Perhaps Osborne should be required to swear to his innocence under penalty of perjury to access the evidence. (Osborne had confessed his guilt to the parole review board in an attempt to secure an early parole.) Or, perhaps a post-conviction right to access DNA evidence should exist only if it is clear that a defendant’s attorney was not trying to, as Justice Alito put it, “game the system.” (Osborne’s trial attorney made a tactical decision to forego the DNA testing that was available at the time of trial.) The Justices also sought ways out of this thorny issue, and hoped that perhaps Osborne could use Alaska’s habeas procedures instead.

Throughout argument, the Justices’ myriad hypotheticals displayed a grave appreciation for the vast implications of their ruling. To deny Osborne his DNA evidence would allow a state to arbitrarily deprive a prisoner of valuable scientific evidence, and deprive the justice system of important truth-determining tools. But to allow Osborne his DNA evidence would compromise the finality of all convictions involving scientific evidence, and might create perverse incentives for defense lawyers to manipulate the system.

[edit] Opinion Analysis

Lyle Denniston originally wrote the following analysis for SCOTUSblog

Amid competing essays on the courts' role in declaring constitutional meaning, a Supreme Court majority has handed off -- as essentially a question for the political branches of government -- the issue of when a convicted individual can get access to genetic evidence to try to prove innocence of the crime.

Testing of such evidence, to detect whose DNA may be present, has become a highly sophisticated chemical process that, the Court acknowledged Thursday, can -- all by itself -- make a difference between guilt and innocence.

Access to evidence for DNA testing, however, is not guaranteed by anything in the Constitution, the Court majority concluded -- at least when the individual has had a fair trial, and is seeking the evidence after the fact, to try to undo a conviction.

"We are reluctant," Chief Justice John G. Roberts, Jr., wrote for a 5-4 majority, "to enlist the Federal Judiciary in creating a new constitutional code of rules for handling DNA."

The majority opinion in District Attorney's Office v. Osborne (08-6) should not be misunderstood: it does not rule out entirely any access, in a criminal case, to genetic evidence for DNA testing. What it does do is narrow any legal foundation for such access, primarily by leaving it up to 50 state legislatures and Congress to craft rules to control access.

The ruling does not bar an accused individual, not yet convicted, of obtaining such evidence to check it for DNA. In fact, the Court in no way disturbed the basic constitutional requirement, under the 1963 decision in Brady v. Maryland, that prosecutors must turn over to the defense -- before trial -- any evidence they have that might help the defense contest the criminal charge. Presumably, the Brady right includes some right of access (before conviction) to genetic evidence held by the prosecution, to test it for DNA.

Moreover, the decision apparently did not bar even a convicted individual from seeking access to such evidence, provided that the attempt to obtain it is made in pursuing a habeas challenge in federal court to a conviction. The Court majority conceded that there is some right of "discovery" of favorable evidence in a habeas proceeding, if "good cause" can be shown for success. (A habeas case, of course, can only be pursued in federal court if the individual's challenge has been attempted first, in state court, and failed there.)

That leaves the opinion focused on a convicted individual's claim, in a civil rights lawsuit pursued after conviction, to what the Chief Justice called "a freestanding and far-reaching constitutional right of access to this new type of evidence." Six members of the Court were unwilling to establish such a right (including Justice David H. Souter, who dissented from the ruling on a separate question).

What the decision means in practical terms is that access to DNA evidence, after conviction, will depend on the willingness of state legislatures and Congress to assure such a right. What that will mean, in practice, is that the right will vary from state to state, and may be available only with conditions. For example, some states require the individual to show -- in advance -- that the evidence would have a direct bearing on the case. Other laws, like the federal statute and laws in some states, require the individual to swear -- presumably at risk of perjury for misstating it -- that he is in realilty innocent. And some states deny access later, if it was not sought during the trial.

The Chief Justice expressed concern, in his opinion, that many of those laws might be cast into doubt, constitutionally, if there were a federal constitutional right of post-conviction access. That, Roberts indicated, was a factor against creating a federal right.

But what may give the Osborne opinion a larger place in constitutional jurisprudence is the sharply differing visions it offers on how or even whether a new constitutional right is to emerge through court interpretation.

The Chief Justice's opinion has a distinctly negative tone in assessing William G. Osborne's claim to a new constitutional right of post-conviction access to evidence that might favor the defense. "A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man," Roberts wrote.

His opinion stopped just short of denying any authority for the Court, in interpreting a suspect's rights in a criminal proceeding, from converting a pre-trial right (such as access to favorable evidence) into something that lasts beyond a guilty verdict. Once a conviction emerges, the Chief Justice said, states have "more flexibility in deciding what procedures are needed" to provide relief from legal error, if any, in a case, and a convicted individual "has only a limited interest" in such post-conviction relief.

More significantly, the Chief Justice's choice of words in rejecting judicial recognition of a new right is telling. The underlying issue, he said, is "whether the Federal Judiciary must leap ahead -- revising (or even discarding) the system [of criminal justice as it now exists] by creating a new constitutional right and taking over responsibility for refining it."

Creating such a right, he went on, would turn the judiciary into "policymakers," confronting a host of questions of just what that new right entailed.

Justice John Paul Stevens, writing for himself and two other dissenters, speaks admiringly of the roots of liberty that go "far deeper" than the Constitution itself. He catalogued the Court's prior decisions recognizing "substantive constitutional protections to state prisoners" under the Due Process Clause.

And, he interpreted the wave of DNA access laws in the states and at the federal level not as a reason for the courts to remain on the sidelines, but as making it "more, not less, appropriate to recognize a limited federal right to such evidence."

Stevens also indicated that the pre-trial right of access to favorably evidence, mandated by the Brady decision, does not directly apply in the post-conviction setting. But that opinion, he said, displayed a concern for "fundamental fairness" that is "equally present when convicted persons" seek access to evidence with the decisive characteristics of DNA evidence.

Justice Souter did not join the Stevens opinion on the new constitutional right question. In fact, the Souter opinion is an eloquent essay on the virtues of "going slow" in recognizing "an individual right unsanctioned by tradition."

He added: "Changes in societal understanding of the fundamental reasonableness of government actions work out in much the same way that individuals reconsider issues of fundamental belief. We can change our own inherited views just so fast, and a person is not labeled a stick-in-the-mud for refusing to endorse a new moral claim without having some time to work through it intellectually and emotionally."

That opinion, in fact, is very likely to be one of Souter's most-quoted legacies after his retirement from the Court takes effect at the end of this month.

[edit] Links and further information

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