Argument Preview: District Attorney’s Office for the Third Judicial District v. Osborne
New SCOTUSblog contributor Erica Goldberg previews one of the cases to be heard by the Justices on Monday, March 2nd. Erica is a graduate of Stanford Law School.
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.
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.
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.
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.
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.