Supreme Court Says No Right to Post-Conviction DNA Testing
In a 5-4 ruling, the Supreme Court has ruled that prosecutors aren't obligated to turn over DNA for testing after someone has been convicted, even if the state acknowledges that a DNA test would prove conclusive as to guilt or innocence, and even if the defendant agrees to pay for the testing himself.
Representing the convicted man, the Innocence Project argued that a right to access a simple test that could establish actual innocence would be covered by the Constitution's due process clause.
I wrote about the case, District Attorney's Office for the Third Judicial District v. Osborne, for The Daily Beast last March.
Editor's Note: As of February 29, 2024, commenting privileges on reason.com posts are limited to Reason Plus subscribers. Past commenters are grandfathered in for a temporary period. Subscribe here to preserve your ability to comment. Your Reason Plus subscription also gives you an ad-free version of reason.com, along with full access to the digital edition and archives of Reason magazine. We request that comments be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of reason.com or Reason Foundation. We reserve the right to delete any comment and ban commenters for any reason at any time. Comments may only be edited within 5 minutes of posting. Report abuses.
Please
to post comments
Do you even have to look up who the four dissenters were and who was in the majority?
Yes, yes, once again I must fulfill my obligations and point out that it was the liberals pushing for the correct view here, and the conservatives batting for the State!
Right-leaning folks: if you're tired of this running service, which yes seems to keep me quite busy this SCOTUS term, take it up with your beloved conservative justices, not me. Don't hate the playa...
What a banana republic we live in. I'm glad the SCOTUS judges are called "justices," because otherwise I'd fail to recognize them as such.
Wow, depressing....
On a totally different topic, after reading this Cracked.com Article I got into a debate with a friend of mine as to whether Albus Dumbledore is a Libertarian of H.K. Rowling's [sp?] wizarding world
I know Reason readers are into science fiction that often has libertarian tilt, does the Harry Potter series qualify as libertarian?
Before the state can deprive an individual of their freaking LIFE, should it have to get the results of a test which would pretty conclusively answer whether the deprivation of life is justified?
Conservatives answer: Fuck no, what a waste of time! Can't hassle the State like that, dude! Gotta break some eggs to make a law and order omelet, y'know?
On second thought after perusing the decision: the defense lawyer intentionally used an inconclusive DNA test and refused the better test because the inconclusive test gave her a better shot at winning...
You're kind of stretching here reason, as it wasn't about of new technology, it was about of a court-room decision by the defence
also, one of Alito's central arguments is that post-conviction access to new tests is a decision for the state legislature not the federal courts and that supreme court interference would set a bad precedent and blur the boundaries between branches of government
Welcome to Obamastan. SOB has been in office only six months and he has thouroughly ruined everything that was great about America. God damn him for turning perfection into a shithole in such a short time.
Three of the Justices who joined the majority said in a separate opinion that they would have gone further in rejecting the DNA access claim in the case, saying that such claims should not be pursued in a civil rights lawsuit, but through a habeas plea - but then only after trying the challenge in state court. Moreover, those three, in an opinion written by Justice Samuel A. Alito, Jr., said that, if a defense lawyer fails to seek DNA testing during trial, and does so for tactical reasons, there is no constitutional right to seek access following conviction.
brotherben:
WTF are you talking about? This case was accepted for cert several months ago. Any discussion re: Obama and the Supreme Court was speculative at best among legal geeks.
This has nothing to do with Obama. This decision was written by Justices appointed by Republicans.
This is a really bad decision for several ways. First, there is no real reason given why this should be a habeas rather than a 1983 action. Indeed, it has commonly been accepted practice to do this as a 1983 action. Second, even if they prefer this matter arise in habeas, they could have granted Osborne relief while directing future suits to be filed as a habeas.
Third, they have no idea of the procedural history. The majority says that the State of Alaska will provide access to the material for testing. No, it won't. That's why we had to take the damn case all the way to the Supreme Court. For god's sake, read the fucking record, Roberts.
The problem, as has been discussed before, is that justices of both sides of the political fence believe they have to defer to the legislature or executive. They fail to see themselves as having a legitimate, strong role in reviewing legislation, etc., to determine if it is constitutional. Randy Barnett has been writing about this subject for some time. I would recommend reading anything by Barnett. It's too bad he will not be nominated to the Supreme Court.
@ Mango Punch:
I'm pretty certain that JK Rowling considers herself pretty left-wing, including in all the ways one should hope not to be left-wing. So I'd say that Dumbledore's probably not a very libertarian sort of dude.
Just out of curiosity, is the argument here "This is a bad decision because access to DNA testing should be a constitutional right"?
I mean, is that in all cases where biological evidence is used? Not to be the devil's advocate here, but if DNA test-challenges are made a routine part of Due Process, wouldn't that just incentivize prosecutors not to use it? And wouldn't that just cause greater criminal justice gridlock?
@ Alaska
Good points, I don't know enough about the legal system to argue on the habeas vs 1983 action, and I agree that the court should not simply deffer to the legislature...
... However: how do you respond to the case being about not new technology but a strategic decision by the defense?
... Also: even if the court should not deffer to the legislature, should this be a federal or a state decision?
It is truly dismaying that a majority of the SCOTUS would consider process more important than justice.
MNG
Before you go all Team Blue on this one, wasn't there a decision by Sotomayor cited a few weeks back where she voted to deny a hearing to a man later proved innocent because the application was made four days late?
Alaska, I am the village idiot hereabouts. The comment was a sarcastic new verse for the local theme song.
My apologies.
In my opinion the crux of this is that:
It's not about a new process or tech being available, it's a case about alowing people to be re-tried bc they think their defense could have taken a better tack...
... in which case (if ruled differently)virtually every offender in US prisons could throw their defense under the bus and demand a new trial
Can anyone remedy this in arguing that the case should have been ruled differently?
I don't think it's necessarily bad if the SCOTUS considers process more important than justice, when the realize that "justice" might be something they are making up as they go along and "process" reflects the will of the people's representatives.
I was pissed about the decision (and had read Radley's earlier article) but it isn't a very open-and-shut case, reading the opinion. The majority basically says that the states are moving well along right now and they don't want to short-circuit the process. And that the defendent had not tried to use the state-level systems in place. I don't quite get Alito's minority opinion.
There's a new professionalism in Congress today...
That being said, I, having no formal training/education in legal matters, I am unqualified to express an opinion on this ruling. I am only qualified to serve on a jury.
Jefferson's statement to the effect that it is better that 99 guilty go free than 1 innocent go to jail is too often forgotten. That value is far more important than federalism.
Although I do not think MNG should "go all Team Blue" here, I do think that he is correct-here. If the framers had desired to deny federal post conviction relief to those convicted by state courts of crimes where exculpatory evidence exists, they would have so ordained. They chose otherwise.
A hallmark of republican government is the primacy of individual liberty and that government only exists to protect free minds and free markets. Applied to criminal cases, this principle dictates that each and every criminal defendant, even post-conviction, has an absolute right to access and present any exculpatory evidence. It is black and white.
Taking sides between two groups that want to kill you is pointless, isn't it?
The decision is wrong-headed, of course. It's immoral for a society to act in callous disregard of the innocence of someone wrongfully convicted.
Pro Lib,
The decision is wrong-headed, of course.
Im not 100% sure of this. I dont like it, but, I can see a procedural, pragmatic point.
Lets assume that there are X number of innocent guys in jail that can be freed via DNA tests and that there are Y number of guys claiming they are innocent, where Y >>>>>> X. Allowing all of Y access to post-conviction DNA tests would use up the limited resources that could find X.
Thus, leaving it to the states to create procedures for properly using those resources to target X more accurately (yeah, right, okay, Im not sure I can write that without giggling) seems the right thing to do.
I think the big problem comes from the public defender system and many accused getting piss poor representation.
If we could clone the Dallas DA and put him in office everywhere, this decision would work out okay. Short of that, it leaves me a bit uneasy.
Jonas: I'm pretty certain that JK Rowling considers herself pretty left-wing, including in all the ways one should hope not to be left-wing. So I'd say that Dumbledore's probably not a very libertarian sort of dude.
I dunno about that. Based strictly upon the books, the wizarding government has generally been shown to be useless in a real fight, and actively malevolent from time to time. Not to mention larded up with silly regulations. Percy Weasely's rant about the thickness of cauldron bottoms comes to mind. And the final battles were won by individuals banding together, not by the ministry forces getting a clue.
Yes, I am a geek.
MNG - Now if I could just find some liberals
that respected individual liberties, I could
support liberals for the court. Oh well, it
was a fun exercise in fantasy.
-K
"Jefferson's statement to the effect that it is better that 99 guilty go free than 1 innocent go to jail is too often forgotten. That value is far more important than federalism."
You know, I have been catching up on my Shield episodes now that I have all of them on DVD and just finished up season 3 the other day.
Claudette begins to investigate an Assistant DA who may have been under the influence while in court and she takes massive heat for it and loses the Captain position. It really reminded me of Jefferson's quote and how people are so willing to throw someone else's life away. Fucking sad.
I don't understand why a defense lawyer would forego dna testing for tactical reasons. Was there a fear it would show the defendant guilty?
Karl
I don't know about you, but the individual liberty to live is fairly important imo...
TAO
I can't imagine a concept of due process that doesn't demand that possibly exculpatory evidence a prosecutor has be shared with the defense. The prosecution is an arm of the state, it has access to the crime scene and resources the accused does not. At the least it should have to share its evidence with the defense, even post-conviction.
What about when that pink chick took over the school and posted stupid regulations everywhere? That seemed to me like the author was attacking the nanny state. But I am not very knowledgable about HP, so whatever.
"And wouldn't that just cause greater criminal justice gridlock?"
The rights of the accused are kinda like that, they do make the system slow up in ensuring they do not deprive the wrong man of life, liberty or property.
I don't see why DNA testing needs to be seperately enshrined as a constitutional right. It's not as straightforward of a connection as Miranda is to our fifth amendment rights. That said, it seems like a DNA test would be reasonably connected to due process rights. I think the court got this one wrong - but not because I don't support death penalty.
There is definitely some spin involving this decision. We are led to believe the Supreme Court dismissed the constitutional right of the accused to confront the evidence and witnesses against them. On the contrary, the court acknowledged that right while ruling that not utilizing evidence for strategic purposes does not warrant a constitutional right to summon that evidence upon command at a later date. That would, in effect, allow a defendant to sit for multiple trials and use a variety of tactics and strategies with respect to evidence (and perhaps legal counsels in another argument) until they achieve success. The court recognized this problem and allowed the states to devise methods under which evidence can be summoned to avoid this gaming of the legal system. Any defendant can have access to a DNA test at trial and then determine whether the results help or hinder their defense; this ruling did not change that.
I'm not sure about this, but I thought the law (may be a state thing) was that prosecutors were legally required to share potentially exculpatory evidence with the defense. If that's true, then I think the same principle should hold post-conviction.
Based on this: The task of writing rules to control access to DNA evidence "belongs primarily" to the legislature, the Chief Justice wrote
I'd say SCOTUS did the right thing here. They essentially said that the courts can't pretend the Constitution says stuff it doesn't, and that it's up to the legislative branch to do the right thing here.
I would support amending the Constitution to clarify that defendants do have a right to potentially exculpatory evidence.
I don't support SCOTUS just making shit up and pretending it's in the Constitution because it's convenient, because you might as well run it through the shredder if that's how you want to handle things.
Honestly, I think due process rights should be read to include something like this, so saying it's not "in the Constitution" doesn't strike me as accurate. The narrow reading of the Constitution makes more sense when applied to government power than when applied to civil liberties.
"Yes, yes, once again I must fulfill my obligations and point out that it was the liberals pushing for the correct view here, and the conservatives batting for the State."
Yes, the lefties were definitely right here. Why, just yesterday I was reading my copy of the Constitution and right after the part about Freedom of Speech, I saw the part about Freedom to DNA testing.
Please, of all sites, this one should be full of commenters who are oppposed to Justices just making up shit about the Constitution because it makes us all feel good. If you want defendants to have a right to DNA testing, pass a fucking law, but please, don't fucking pretend it is a right protected by the Constitution.
I've actually thought the Hary Potter series to be somewhat Libertarian and definitely anti-authoritrarian (are they the same thing?) myself.
The aforementioned ministry takeover/screwover from the Order of the Phoenix is very anti-government/authority.
Dubledore, who could have easily been done as a completely-perfect-in-every-way-benevolent-dictator authority figure was shown to be failable (if still incredibly competent), and one of the common mistakes that all of the authority figures kept making (government or just adult) was hiding things or taking care of things to "protect harry" or "for his own good". This frequently worsened problems and/or delayed their resolution.
Additionally, as mentioned before, problems were often overcome by individuals coming together instead of a top-down assignment structure, and being overcome by people immediately available to overcome them, not the "sit tight and wait for the authorities" type mentality.
For an added bonus, the series even featured plenty of lawbreaking for practical reasons (ie Harry using his wand in self-defense while away from school at the beginning of book 5).
"Yes, yes, once again I must fulfill my obligations and point out that it was the liberals pushing for the correct view here, and the conservatives batting for the State."
Yeah, those awesome liberals on the court, always looking out for our rights. I guess they must have too busy projecting their political biases onto the Constitution and thinking up shit that doesn't actually exist in the Constitution the day a case was decided about a right that is actually fucking enshrined in the Constitution, the right to bear arms.
If you want defendants to have a right to DNA testing, pass a fucking law, but please, don't fucking pretend it is a right protected by the Constitution.
You could make a pretty damned good argument that the right to due process includes the right of an innocent person to access the evidence that would prove he was wrongly convicted.
This is particularly given the incredibly light burden a right to DNA testing puts on the state. All they have to do is open their files. We aren't talking a new trial, here. It's a test.
A couple of notes:
1. You don't have all of your rights after you've been convicted of a crime - notably "innocent until proven guilty" goes away. In this case the petitioner went through a fair (as far as everyone knew) trial and was convicted. A lot of rights you have during the trial phase go away post-conviction. You were "proven" guilty.
2. The prosecution has to share exculpatory evidence but there was not any to share. The petitioner's own lawyer decided not to do the (best available) DNA test, and she did so because she believed her client was guilty (and thus the test would prove it, and therefore be a bad strategy for the defense). This was against her client's wishes (so he states), but in the end there wasn't a result to share.
3. The guy since confessed to the crime - granted, this was so that he could apply for parole, so it's dodgy, but there was certainly a discussion during oral arguments about why he hadn't just asserted innocence from the get-go and applied through the state system
4. The main thrust of the decision was that the states are reasonably working their way through this, and at a decent clip (your opinion may vary on the truth of that statement), and since there's no clear Constitutional right to DNA testing, let the federal system work. That's not quite as evil.
That said, I love the Innocence Project and Radley's reporting dearly. I just do not think this is quite that black-and-white of a case.
Oops. Radley got in his comment when I was typing, so to note:
1. The petitioner in this case was not "an innocent person". He was convicted by a jury, and further asserted his guilt under penalty of perjury during the parole hearing. Not saying that's a blanket excuse, but it is kinda gray.
2. I definitely agree it'd be easy for the state to comply with the request and they should do that out of basic decency. But that shouldn't force a Supreme Court decision creating a new right under the Due Process clause. The cool thing for Alaska to do now (and therefore it won't be done) would be to grant the guy his test anyway.
This is ridiculous. People have the right to look at new evidence (or re-examine old evidence). In this case, the supreme court is saying that because DNA requires a special test, it is a kind of evidence that cannot be look at. It is equivalent to saying you cannot make an enlargement from an old photo negative.
I'm on the fence on this one. Roberts' opinion was pretty clear that this overrode the State's process in the criminal justice arena. Roberts was pretty forceful in affirming the power of DNA in overturning wrongful convictions, but there was a States Rights issue at stake here.
While I'm certainly horrified that the State of Alaska doesn't allow this retesting to occur, I'm not sure if this is a federal issue.
Followup: has the Alaska State Supreme Court looked at this?
This is particularly given the incredibly light burden a right to DNA testing puts on the state. All they have to do is open their files. We aren't talking a new trial, here. It's a test.
Radley, I agree with you in principle, but my first question is, what's wrong with the State of Alaska, and who's the chickenshit prosecutor?
However, if I put my "Kiss me, I'm a liberal" hat on, surely the Supreme Court can "discover" some 'interstate commerce' issue here, and just trounce the States Rights question, right?
Paul - I do not believe the Alaska Supremes ruled on this - it was mentioned in Robert's opinion that the state process was not fully undertaken. The petitioner decided to pursue this as a Due Process claim, not a habeas claim. The latter requires going through the state court system first (if I understand right), while the former does not. Part of the opinion says that there may be reasonable remedy available at the state level, but the petitioner has not sought it (instead seeking a federa right that would trump anything the state said).
Supreme Court to Appellant: Justice? Never heard of it....
"""Applied to criminal cases, this principle dictates that each and every criminal defendant, even post-conviction, has an absolute right to access and present any exculpatory evidence. It is black and white"""
The guy had his chance to use the DNA in his original trial and his defense declined. We are not talking about someone who didn't have the chance and never will, we are talking about someone who opted not to use it when he thought it was in his advantage and then cries about not getting to use it after the conviction. I don't think one can make a due process issue when they had the option and refused at trial. If the state would have refused the DNA test at trial, I would agree.
The lesser DNA test, the reason he declined the better test, showed he likely comitted the crime. As a result, his lawyer didn't want the better test. That was a strategic decision by his counsel, and defense excluding evidence at trial for strategic reasons does not rise to the absence of due process, even if the state passes on the same evidence post conviction.
I think the state should have allowed it, it probably would have confirmed his guilt.
"""You could make a pretty damned good argument that the right to due process includes the right of an innocent person to access the evidence that would prove he was wrongly convicted."""
I agree with that, except when they had the opportunity to use the evidence at trail and passed. Now if he wanted to claim his lawyer denied him due process for not including the DNA at trial...
B, where in the constitution does it say that it is okay for the states to refuse exculpatory evidence post convinction?
This "creating rights" business is a legacy of the progressive push to call economic goods rights--jobs, food, healthcare, etc. However, the foundational view of natural rights in American jurisprudence doesn't say that only rights listed in the Bill of Rights are protectable (leaving aside the 9th and 10th Amendments, which make that even clearer). I think any exculpatory evidence that is readily available should be part of the due process right--whether it's pre or post-conviction.
TrickyVic, I 'm thinking In an article I read, maybe from a link posted here, that the defendant claimed the previous type of testing was inferior to the test asked for now. That was the reason for the appeal.
Due process is right there in the Constitution B, in the 5th and 14th Amendment. What do you think that guarantees, and how would this not fall under it?
Look, I'm not pretending that the liberal judges are going to be good libertarians. What I am saying is that they are better for you guys than the conservatives.
The worst thing the State can do to an individual is to take his life or imprison him. That's worse than denying him a permit to sell hot dogs on the street, or making him comply with OSHA regulations. When the State moves against the accused they bring massive resources to bear in an effort to imprison or kill that person. Time after time liberals have given support to the accused against the State here, while conservatives are not merely absent, they are cheerleading for the State in this critical area.
"Osborne's lawyer passed up advanced DNA testing at the time of his trial, fearing it could conclusively link him to the crime."
http://news.yahoo.com/s/ap/20090618/ap_on_go_su_co/us_supreme_court_dna_testing
"""I think any exculpatory evidence that is readily available should be part of the due process right--whether it's pre or post-conviction."""
Even if the defense passed on using the evidence at trail? The problem with that is defense could purposefully pass on using evidence only to raise post conviction issues.
I agree with your statement with one exception. This case falls under that exception.
I deem this the right to Overdue Process.
"""Due process is right there in the Constitution B, in the 5th and 14th Amendment. What do you think that guarantees, and how would this not fall under it?"""
Simple, the defense opted not to use it in trail, therefore due process was not denied by the state. If the state denied his request to use the DNA at trial, I would agree.
If you plead guilty to a crime, you don't get to claim lack of due process because you didn't get a trial. Ain't that right former Senator Mr. Larry Craig.
This is from the article in "The Daily Beast" that Balko links to avove.
"At that time, primitive DNA tests on a degraded semen sample narrowed the field of possible perpetrators to 16 percent of black men, including Osborne.The state concedes that modern DNA testing would establish conclusively whether Osborne is guilty or innocent, and Osborne's attorneys at the Innocence Project offered to pay for the $1,000 test. Yet Alaska has refused to turn over the semen sample, on the grounds that Osborne's trial produced more than sufficient proof that he committed the crime."
Hey, Mango Punch, if you're going to cut-and-paste an entire paragraph from a news story, as your 11:47am comment is, it's considered poor form to fail to cite the source and make it obvious to everyone that it's a direct quote. Come on, I know it's just a comments section but still, there's a word for posting other people's writing or ideas as if it's your own.
When the State moves against the accused they bring massive resources to bear in an effort to imprison or kill that person. Time after time liberals have given support to the accused against the State here, while conservatives are not merely absent, they are cheerleading for the State in this critical area.
All of these points are absolutely true, but I'm still on the fence as to whether this particular case has a place on the Federal Supreme Court.
If you plead guilty to a crime, you don't get to claim lack of due process because you didn't get a trial. Ain't that right former Senator Mr. Larry Craig.
Tricky: Depends. There's the latest defense trick of claiming "inadequate defense". While this is most certainly true in a number of cases, it's also used as a sort of hail mary response after a guilty verdict, or even sometimes after a confession. I've seen some cases with overwhelming evidence against the accused where the defended didn't even claim they didn't commit the crime, but merely had inadequate defense.
"Due process is right there in the Constitution B, in the 5th and 14th Amendment. What do you think that guarantees, and how would this not fall under it?"
The notion that someone's Due Process is being denied because the state didn't pay for a DNA test is total bullshit.
I think the paying for part is a different issue. At least, it is for me. It's the allowing of the defendant to present exculpatory evidence post-conviction that I think is a right.
B, where in the constitution does it say that it is okay for the states to refuse exculpatory evidence post convinction?
The Constitution is the foundational document for the federal government. The states do not need authorization from it to exercise their own powers, which pre-date the Constitution. Now when the Constitution forbids states from doing something, that must be respected, but that is not the case here.
Due process is right there in the Constitution B, in the 5th and 14th Amendment. What do you think that guarantees, and how would this not fall under it?
Dude, due process is over after conviction (or in the case of a death penalty trial, sentencing). He even had the opportunity to access this evidence during his trial but chose not to! It's ridiculous to say this guy didn't get due process.
It's not like this is known to be exculpatory evidence, either. That would be a different story. I think the state should hand over the DNA for testing (at the convict's expense), but in no way shape or form does this rise to the level of a constitutional right.
It's the allowing of the defendant to present exculpatory evidence post-conviction that I think is a right.
Where does this right exist in the Constitution? The convicted already received due process during his trial, so it's not the 5th.
"Even if the defense passed on using the evidence at trail?"
Certainly a possibly innocent person, who could be shown innocent with this simple test, should not be imprisoned or executed because "you had a chance a trial to present this?" WTF? What possible value is there in that?
"The notion that someone's Due Process is being denied because the state didn't pay for a DNA test is total bullshit."
"The convicted already received due process during his trial, so it's not the 5th."
What an argument! Again, wtf do you think due process is or entails?
Due process is about having proper procedures and safeguards to ensure that deprivation of life, liberty or property is not done arbitarily or in a manner with too high of a risk of it being done to an innocent person.
These kinds of tests are pretty conclusive in letting us know if someone is innocent or not, ergo I think due process affords that and ergo a person should have a right under due process to them.
Except of course that the guy in this case is not innocent (he was convicted), later confessed to the crime in court, and has not formally asserted his innocence (this came up in the oral arguments).
A court already found him guilty, and he confessed, later, and he did not use the state's existing procedures but instead filed in federal court. How much Due Process does this guy get? Again, I agree with all of the sentiments but there are exceptions, as one commenter noted, and this has got to be one of them. Certainly this is not a case that is straightforward enough that creation of a new constitutional right is a well-founded answer.
Due process is about having proper procedures and safeguards to ensure that deprivation of life, liberty or property is not done arbitarily or in a manner with too high of a risk of it being done to an innocent person.
OK, accepting that def for the sake of arg, it doesn't seem to me that the state's action has a high risk of punishing an innocent person. I repeat: the guy could have had the tests done during his trial. We don't allow re-dos for people who fuck up their defense in other ways, why should DNA testing be special?
Let's flip this: Why shouldn't the government have a duty to mitigate unjust convictions?
@pfj
Sorry about that, will do in the future.
"""Certainly a possibly innocent person, who could be shown innocent with this simple test, should not be imprisoned or executed because "you had a chance a trial to present this?" WTF? What possible value is there in that?"""
I see no value in blaming the state for his lawyers actions. This is simple. If the defense had the opprotunity to present the evidence and decided not to, it wasn't the action of the state that prevented the evidence at trial. Therefore not the state's fault.
But if the state did refuse to allow him a more accurate DNA test at trial, then I would say it's a due process issue.
"""Let's flip this: Why shouldn't the government have a duty to mitigate unjust convictions?"""
The quick answer is I think it should, and I believe a defense lawyer has a responsiblity to present all evidence in his clients favor at trial and has the ability to pass on possible damning evidence if the state chooses to not use that damning evidence. I don't not believe that the state is responsible for his defense lawyer's choices, nor do I believe one should get a do-over because you changed your mind with respect to those choices, with very few exceptions.
This guy's beef should be with his lawyer, not the state.