July 31, 2009 — A recent U.S. Supreme Court ruling that denied an Alaska man access to DNA evidence also asserts that states cannot arbitrarily block convicts' access to evidence that could free them, according to analysis presented by University of Virginia law professor Brandon Garrett at a July 7 faculty workshop.

In District Attorney's Office v. William G. Osborne, the Supreme Court addressed the question of whether a convicted felon had a constitutional right to pursue DNA testing.

The court recognized for the first time the problem of wrongful convictions, and justices recognized that DNA evidence is a powerful tool in criminal cases. The justices also cited Garrett's scholarship on post-conviction DNA exonerations and state statutes providing access to post-conviction DNA testing.

Osborne was tried and convicted for rape in 1993 in Alaska. At his criminal trial, he was included as a potential perpetrator by the results of an early, imprecise form of DNA testing. That early type of DNA testing could have conclusively excluded a suspect, Garrett said, but it could not positively identify Osborne as the culprit; the results included one in about seven men.

Although Osborne requested another, more precise form of DNA testing, his lawyer decided not to pursue it, Garrett said. After being convicted, Osborne requested the test again, as well as far more powerful modern DNA testing techniques that were common by the mid-1990s.

Almost all states now have rules that allow convicted felons to pursue hearings on DNA tests that become available after their incarceration, but Alaska is one of a few that does not. Additionally, most prosecutors eventually agree to conduct post-conviction DNA testing, whether their state has a statute allowing it or not, Garrett said, in part because the testing often identifies the true culprit.

The Supreme Court, in a 5-4 decision, decided that prisoners have a constitutional right to access new DNA testing, a procedural due process right barring a state from arbitrarily denying relief under their post-conviction rules. However, the court ruled that Osborne was not entitled to relief.

"That ruling sets an important precedent," Garrett said. "Where the justices differed was whether the state acted arbitrarily in Osborne's case."

In his dissent, for example, Justice David Souter reasoned that it is good to go slow in recognizing new constitutional rights. Souter disagreed, however, on the question of whether Alaska had applied its evidence rules arbitrarily; Souter felt that Osborne had waited long enough and that Alaska had offered no plausible reason justifying denying Osborne the DNA testing.

Garrett said that the decision will have an impact in future cases in which convicts seek DNA testing to try to prove their innocence. As for Osborne, the court stated that he can still obtain relief both from the Alaska state courts, and if he files a federal habeas corpus petition and seeks discovery on a claim of innocence, he said. In contrast, other convicts who lack state court avenues for obtaining post-conviction DNA testing may rely on the Osborne decision, Garrett said.

Meanwhile, the court did not rule but continued to assume that there is a right to claim actual innocence under the constitution.

"The actual innocence door is left open but no one is sure if it leads anywhere," Garrett said. Meanwhile, "future decisions will develop the contours of the Osborne due process right."