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Analysis: Handing off the DNA issue


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.