Supreme Court

Does the Constitution Grant a Right to DNA Testing That Could Prove Innocence?

The Supreme Court may answer that question in a case it heard today.


Does the U.S. Constitution permit an innocent person to be imprisoned or executed? Seems like a question with an obvious answer.

Here's another question: If a convict can establish irrefutable proof of his innocence with a simple DNA test, does he have a constitutional right to that test, even if he has exhausted his legal appeals?

The answer to both questions isn't at all clear, and may depend on how the Supreme Court rules in the case of District Attorney's Office v. Osborne, which it heard today. Surprisingly, 32 states, the city of New York, and the Obama administration are urging the Court to answer "no."

The defendant in the case is William Osborne, who in 1993 was convicted of a brutal kidnapping, rape, and assault in Alaska. DNA testing on semen found in a condom at the crime scene didn't exclude Osborne, but it did include as many as 16 percent of all black men. More sophisticated testing not available at the time of Osborne's trial would today conclusively determine whether he actually committed the crime. Even the state of Alaska concedes that a negative test would confirm that Osborne is innocent. The test would cost all of $1,000, a fee that would be paid not by the state, but by Osborne's own legal team at the Innocence Project.

Yet the state of Alaska refuses to hand the sample over for testing, and has fought all the way to the Supreme Court to keep it from Osborne's lawyers. The state claims that Osborne's trial produced more than sufficient proof that he committed the crime, and that this is all they need to feel confident in his guilt. Establishing a constitutional right to DNA testing in cases like Osborne's, the state says, would be wasteful and unnecessary, and undermine the certainty and finality that lends integrity to the criminal justice system. Ken Rosenstein, the state's lead attorney on the case, told the Anchorage Daily News, "If there was other doubtful evidence that supported his…possible innocence…things might be different. But it's merely a wish and a prayer at this point."

That may well be true. Osborne is hardly a sympathetic character. He was paroled in 2007 for the conviction at issue before the Court. But six months later, he was back in prison after accepting a plea bargain on charges related to a robbery and home invasion. When the Anchorage Daily News pressed to affirm his innocence even in the case now before the Court, he evaded the question.

But the facts of Osborne's case are in many ways irrelevant—or at least they should be. That Osborne may be a shady character shouldn't allow other states to deny irrefutable DNA testing post-conviction simply because state officials believe that the convictions are rock-solid. Courts and prosecutors have been plenty wrong in the past about even seemingly slam-dunk cases.

Consider the case of Bruce Godschalk, a Pennsylvania man convicted of raping two women in 1986. Godschalk was arrested after his sister thought he resembled a composite sketch of the rape suspect and turned him in to the police. After a long interrogation, Godschalk eventually confessed. In the audio recording of his confession, he recounted 20 details of the rapes that prosecutors said were never released to the public. He was also identified by one of the victims, and a jailhouse informant later claimed Godschalk confessed to him in the cell they shared.

That would seem to be a pretty open and shut case. And indeed, a Pennsylvania court rejected Godschalk's initial attempt to obtain post-conviction DNA testing on the semen found in the victims, citing the overwhelming evidence of his guilt—including his confession.

Fortunately, a state appeals court relented, and granted Godschalk's request for testing. Two separate labs later determined that though the same man raped both women, Bruce Godschalk was not that man. As for the details of the crime that he relayed during the confession, that information was actually introduced by his interrogators through suggestive questioning. The jailhouse informant was obviously lying.

One study of DNA exonerations published last year in the Columbia Law Review found 32 cases in which a defendant confessed to a crime for which he was later exonerated. In 16 exoneration cases, an appeals court made reference to the "overwhelming" evidence of the defendant's guilt in rejecting his appeal.

This isn't the first time the Supreme Court has entertained the argument that the Constitution prevents the incarceration or execution of the innocent. In the 1993 case Herrera v. Collins, a divided Court denied relief to a Texas man convicted of killing two police officers who claimed new evidence (an affidavit from someone claiming another man confessed to the crimes) conclusively proved his innocence. In the majority opinion, Chief Justice William Rehnquist held that a claim of actual innocence based on evidence discovered after a conviction would need to be "extraordinarily high" to merit a new trial, given the burden such claims would put on the criminal justice system. Herrera's affidavits, Rehnquist wrote, didn't meet that standard. In a concurring opinion, Justice Sandra Day O'Connor pointed to the strong evidence of Herrera's guilt, finding his claim of actual innocence lacking but adding that if someone could prove actual innocence, the Constitution would of course forbid their execution.

Strikingly, in a dissent joined by Justice Clarence Thomas, Justice Antonin Scalia disagreed. Scalia wrote that "there is no basis in text, tradition, or even in contemporary practice (if that were enough) for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction." In other words, the Constitution guarantees only a fair trial and access to an appeal. It doesn't necessarily forbid the execution or incarceration of an innocent person. Once you've exhausted your appeals, Scalia argued, you've exhausted your right to be heard in the courts, even if new evidence could establish your innocence.

The Osborne case, however, is substantially different from Herrera's in a very important way: This isn't a matter of an eyewitness recanting his testimony, or a new alibi witness coming forward. Osborne is asking for a test not available at the time of his original trial that will establish beyond all doubt whether he's innocent or guilty. Surprisingly, the Obama administration's amicus brief (which to be fair, may have been drawn up during the Bush administration) seems to borrow from Scalia's dissent in Herrera. "There is no tradition in this country of granting convicted criminals post-conviction access to the prosecution's evidence locker, whether for DNA testing, fingerprint analysis, or other purposes," the brief argues. "And constitutional rights do not spring into existence simply because science has advanced."

Currently, Alaska is one of six states that provide no statutory right to post-conviction DNA testing. But while many others have such a right in theory, the laws are written narrowly enough to exclude the vast majority of defendants (many states limit such access to death penalty cases, for example). Some 232 people have been exonerated by DNA testing since 1989. Seventeen had been sentenced to death. In a fifth of those cases, prosecutors fought against allowing the defendant access to evidence for DNA testing.

Every exoneration means not only that an innocent person did time for a crime he didn't commit, but also that the person who actually committed the crime was allowed to go free. One amicus brief filed on Osborne's behalf by several former prosecutors (including former U.S. Attorney General Janet Reno) points to several cases in which prosecutors vigorously fought DNA testing for years. When the tests were finally done, they not only cleared the defendant, but when checked against DNA databases they were able to identify the actual culprit. In some cases, the actual culprit escaped justice, because in the time the prosecutors spent blocking the test in the courts, the crime's statute of limitations had expired. In other cases, the actual culprit passed away. Many times the real culprits went on to commit more crimes.

The anti-Osborne position puts a premium on finality and closure. The landmark case Brady v. Maryland (1963), established that the state is obligated to turn over any exculpatory evidence to defense attorneys before the start of a trial, on the premise that our criminal justice system values uncovering the truth over merely winning convictions. The state of Alaska and its supporters are arguing in Osborne that once a defendant has exhausted his appeals, those values switch, making the protection of a conviction more important than achieving actual justice.

Radley Balko is a senior editor at Reason magazine.

NEXT: History Will Be The Judge Of Me

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  1. Does anyone think this court, with its current composition, is going to rule the right way on this?

    If so, does anyone here want some real estate in Brooklyn for cheap?

  2. MNG,
    Does anyone think this court, with its current composition, is going to rule the right way on this?

    What’s the right composition?

  3. NPR was quoting the questions and answers between the scotus and the (IIRC) A.G. of Alaska a few minutes ago and they were really bustin his balls about Alaska’s refusal to allow the test. It sounded encouraging to me.

  4. Res judicata is a means to an end. As the law lost its moral integrity a long time ago, concepts like res judicata and due process became ends in themselves. Forgotten is the idea that justice is supposed to be done.

    Res judicata exist only so that cases just don’t keep going on forever. Fine, but the mindless insistence on a concept born exclusively for the efficiency can get in the way of justice.

    But legal thinkers are pretty stupid lot. Just a couple days ago was a “slavery is freedom” meme coming from the likes of Bork. The idea that letting someone, through an accurate objective test, show that she was unable to commit a particular crime is somehow going to break the floodgates on the finality of the thousands of legal outcomes determined everyday in all the several layers of courts is just tooo fucking stupid to phantom. In fact, given how often the legal system seems to be defacto incompetent in getting the right outcome, criminal cases should ALWAYS be subject to for reevaluation.

    It is like the idea of stari decisis. Assuming that the previous courts got it right always seemed like a bit of hubris. But as in the Raich case, the Court showed that it doesn’t have any intellectual integrity. It wants to keep badly decided cases like Wickard because they might need to use them to effectuate their own personal agenda. the SCOTUS would see someone executed rather that question one of their stupid fucking beloved “legal principles.”

  5. Who was it that said “though the heavens fall, let justice be done”?

    The constitution is not an exhaustive list of all of our rights. The man has the right to have this test done, and if the supreme court fails to uphold this right, then they are not agents of justice.


  6. I actually can see the truth in each sides argument. Nobody here wishes to imprison or execute the innocent, but criminal cases do have to come to an end. He was convicted in a legal and allegedly fair trial. He has exhausted all appeals remedies. Nobody is arguing otherwise.

    Still, I’d probably vote with Osborne but I’d need some crackerjack law clerks to write up make up my justification. Of course if I were a SCOTUS judge, I’d have a staff full of those.

    Y’all do see the dilemma facing a SCOTUS justice here, right?

  7. The man has the right to have this test done, and if the supreme court fails to uphold this right, then they are not agents of justice.

    Courts are an agent of the Constitution first and foremost.

  8. Innocence matters. If the law doesn’t recognize that above all, then I agree with Mr Bumble.

  9. …I’d probably vote with Osborne but I’d need some crackerjack law clerks to write up make up my justification.

    Essentially, the advances in DNA testing technology amount to the discovery of new (potentially) exculpatory evidence. The fact that it can (potentially) be conclusive in determining guilt or innocence should meet the “extraordinarily high” standard Rehnquist was talking about.

  10. “…and a jailhouse informant later claimed Godschalk confessed to him in the cell they shared.”

    Strange how criminals always want to share the details with people they don’t know. It’s a wonder the mafia survived as long as it did since criminals are apparently quite happy to talk with anyone about anything.

  11. where would the 9th amendment fit into this in the best of all possible worlds, if anywhere?

  12. Ok…first time posting anything here so here goes nothing…..

    If a DNA test can acquit even after the law mandates that the person has exhausted their appeals, there should be provisions within those laws to handle situations such as these. Scientific research is not static. Granted once you agree to one you must agree to all cases brought forth but isn’t that one of our rights as individuals? Our justice system is an antiquated one. If technology moves forward then so should the laws. Seventeen people have been put to death, only the have their names cleared after the fact due to DNA testing that we know of. I think Alaska understand that DNA testing is not infallible, not in the scientific aspect but in human error. What are they afraid of? That they may have done a shoddy job in putting someone that may be innocent in prison. So what if the dude is shady? We don’t send individuals to jail based on how we perceive them…or wait…we shouldn’t. It would take a radical change in how we interpret justice and rights in order for any changes to be made and as we all know…that would take an over haul of our criminal system.

  13. Y’all do see the dilemma facing a SCOTUS justice here, right?

    Nah, I’m just a stupid musician, could you explain it for me?

    Seriously, would you?

  14. Oh, since nobody’s mentioned this yet, the answer to the question is no. The constitution doesn’t grant any rights, it secures our rights. This is an important distinction to make.


  15. testing

  16. “It is better to let a hundred guilty men free than to convict one innocent man.” I think that expresses what is supposed to be the spirit of our criminal justice system as accepted by our founding fathers. Anyone who espouses the opposite and holds high office is a scoundral and a trader.

  17. Cindi (and others)

    Wondering if you have a link to back up this quote?
    “Seventeen people have been put to death, only the have their names cleared after the fact due to DNA testing that we know of.”
    It’s something I’ve suspected to be true but didn’t know had been any actual evidence that it was true.



  18. Philip, the reference is to seventeen people on death row who were exonerated before their sentence could be carried out. If I recall, no such exonerations ever take place afterwards; that would look bad.

  19. I would also argue that the state has a duty to the people to allow this test, because if it exonerates the prisoner, then the culprit is still at large.


  20. Simply fabulous exemplar of RC’z Law:

    Anyone who espouses the opposite and holds high office is a scoundral and a trader.

    from (really, it’s too delicious) Lefftee.

  21. “Seventeen people have been put to death, only the have their names cleared after the fact due to DNA testing that we know of.”

    A university did an independent study and opened up old cases of death row inmates that would warrent DNA testing. The panel of of students were able to find 17 cases where DNA would have proven they had not committed the crime. Their names were cleared to their families but there was no public fanfare about it. I got this info from a criminology class I took a couple of semesters ago. I will see if I could find more info on it. So all in all I do not have a link to it but will look into it. And Taggart is correct in that they would not want to publically admit any mistakes on their part. Thats why this was not big news when it did occur. If I am not mistaken, the stipulation for the the students taking this project on, could not publically identify the cases they were working on.

  22. I completely agree that it is morally right for the new DNA test to be done. What I don’t understand is what section of the Constitution gives the scotus the right/mandate to overturn the state on this. Cruel and unusual punishment?

    Help please. Can anyone argue this on Constitutional terms, not on moral grounds?

  23. Can anyone argue this on Constitutional terms,

    I don’t think the cruel and unusual punishment clause is the place to go; that really applies to whether the punishment you got is appropriate for the crime you were convicted of.

    I think this is a straight due process case, pitting the need for closure on cases against the need to reopen them if new evidence comes to light.

    I’m with BakedPenguin and J sub D on how it should come out.

  24. There isn’t ‘Constitutional’ grounds. There isn’t anywhere in the Constitution where it says “You have 3 appeals, and after that you’re done”. So it goes back to moral grounds. Basically, the state is saying here that the possible future funds of the state are more important than the possible freeing of an innocent man.

    Should the state have to go out of its way to check to see if their guy is innocent? As an engineer, who deals with a lot of safety factors, I think they should. You don’t check to see if it will stand up, you check to see if it will fail. And right now, they don’t. They try to skate around the parts of cases where they might fail.

    There’s no ‘need’ for ‘closure’ on cases where an innocent man is behind bars. If someone is taking comfort in ‘closure’ from an innocent man behind bars for a crime where the real criminal isn’t being punished, then they are morally bankrupt.

  25. Timothy Cole died in prison after spending over 20 years in prison for a crime it was later discovered he didn’t commit. Just Google timothy cole texas. You should find plenty of news stories.

    The fact that the state would even fight this is disgusting.

  26. “The fact that the state would even fight this is disgusting.”

    Too bad we can’t replace that last word with “surprising.”

  27. There’s no ‘need’ for ‘closure’ on cases where an innocent man is behind bars.

    You’re assuming your conclusion, Highway, namely, that anyone who puts in for this testing is innocent.

    There must be an end to the judicial process. Its fundamental purpose is to resolve disputes. There cannot be infinite appeals. Closure is a fundamental value of the justice system, one that has to be weighed against perfect accuracy.

    The “due process” question is, when do we say that enough is enough? And (relevant here), when do we reopen a “final” case?

  28. There’s no ‘need’ for ‘closure’ on cases where an innocent man is behind bars.

    You’re assuming your conclusion, Highway, namely, that anyone who puts in for this testing is innocent.

    It is enough to assume that some of the people who apply for relief really are innocent.

    The “due process” question is, when do we say that enough is enough? And (relevant here), when do we reopen a “final” case?

    You don’t think that new (previously inaccessible) evidence of actual innocence should be enough to start the ball rolling for a reconsideration?!?

    Sure, put an appropriate set of paperwork hurdles in the way. We can’t afford to have endless rehashing of non-issues forming a denial of service attack on the courts.

    But Jesus Cristo on an Segway, man. The state has no business preventing a prisoner from showing that (s)he really didn’t do it. None. Ever.

  29. Why would they ever want to release any innocent person from jail? Think about it, if we can’t rely on the ” courts” to make the “right” choices” why on earth would they want to allow DNA testing that could show the inane disaster that is our legal system.

    Why on earth should we give any human being a second chance at life? What a waste indeed.

    We have to keep those jails filled, and the pockets of the wardens fresh with weir guild.

    The Medic

  30. This is a no brainer. The guy gets the freakin’ test.

    1) Justice demands it. In the sense that justice is out to punish the guilty and clear the innocent of wrongful accusations. If new technology allows we as a society to better adminster justice, then we as a society have a moral obligation to use said technology, especially if it clears the innocent. Also, as mentioned, IF an innocent is in prison, that means, by definition, the guilty is going unpunished for their crime.

    2) On a cost basis analysis: Hmmm….spending 50k a year to lock some one up. 1k for the test….. yeah, better to spit out the innocents. It’s cheaper on the taxpayer.

  31. You’re assuming your conclusion, Highway, namely, that anyone who puts in for this testing is innocent.

    If somebody other than the state is paying the few thousand bucks for the test and court costs, why should the state care whether or not the prisoner is factually innocent? If they are not, the state should be happy that the prisoner helped prove their own guilt. If they are, the state should be happy that an innocent person will soon be freed. Either way I don’t see why the state has any interest in obstructing things.

  32. The main problem is prosecutors are concerned with convictions not justice. They don’t understand the difference. If they get a conviction they consider it a win. If this man didn’t do it they would have to move this case to the loss column if they do the DNA test.

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