Friday, July 10, 2009

Evidence: DNA Test; Supreme Court Reverses Ninth Circuit: DA's Office etc. v. Osborne, 129 S. Ct. 2308 (2009)

District Attorney's Office for the Third Judicial District v. Osborne, 2009 WL 1685601 (U.S.) Sixteen years ago an Alaska jury convicted William Osborne and a co defendant of kidnapping, assault, and sexual assault of a young woman. In the course of police investigation of the crimes, the officers found evidence subsequently tested for DNA resulting in narrowing the identification of Osborne as one of the culprits. During the trial, Osborne refused an offer to submit to a more reliable DNA test available to defendants. The Alaska courts affirmed the conviction and Osborne sought post conviction relief seeking access to the results of a more sophisticated DNA test unavailable at the time of trial. At an evidentiary hearing ordered by the Alaska court, the lawyer who represented Osborne at the trial testified she believed he was guilty and did not want to submit him to another more reliable DNA test. She intended to rely on mis identification by the victim. Two Alaska court of appeals denied the DNA request. While serving his sentence, Osborne ultimately qualified for parole and confessed to the crimes. At a parole hearing he repeated his confession. Based on the victim's identification, the confessions, the DNA test, and other corroborating evidence, the Alaska court denied his request for access to current DNA testing as unavailable under statutory Alaska law. After release on parole Osborne was arrested for another offense. The State of Alaska sought revocation of his parole. Instead of filing habeas corpus to vacate his revocation of parole, and without asserting "actual innocence," Osborne began his request in the U.S. District Court for access to currently available DNA testing of the evidence introduced at trial by filing a 42 U.S.C. 1983 cause of action (for "deprivation of any rights . . .secured by the Constitution") and alleging a Fourteenth Amendment Due Process violation. The district court judge denied the request. The Ninth Circuit reversed and remanded to the district court judge who agreed Osborne had a limited right to the test. On Alaska's appeal from that ruling to the Ninth Circuit, the court resolved neither the 1983 cause of action nor the alleged Due Process violation. The three judge panel unearthed Brady v. Maryland, 373 U.S. 83 (1963), a Supreme Court case mandating prosecution pre trial disclosure to the defense of exculpatory or mitigating evidence. The Ninth Circuit cited no case applying the Brady rule to post trial procedures. The State of Alaska sought certiorari, granted by the Supreme Court. The Supreme Court reversed the Ninth Circuit, summarily dismissing the Brady v. Maryland claim. Instead, the Court identified two grounds applicable to deny Osborne's request. First, Osborne essentially sought to reverse his state court conviction by obtaining access to a DNA test. But a federal court reviewing a state court conviction must proceed under the procedural rules of habeas corpus, precisely the kind of remedy Osborne should have sought. Instead he filed a 1983 and Due Process claim directly in federal court. Federal courts reviewing state court convictions in a habeas corpus proceeding must respect state court appellate rulings unless those courts violate "clearly established Supreme Court law." No clearly established law existed for the request Osbourn sought-and the Ninth Circuit knew that. To finesse the rules of habeas corpus, and invoke 1983 and Due Process, the Ninth Circuit needed a case decided by the Supreme Court for "clearly established law" and found Brady. Even defense counsel arguing in the Supreme Court agreed the case inapplicable. Secondly, the Supreme Court has distinguished two categories of Due Process: procedural and substantive. Under the doctrine of Constitutional protection of "liberty interests" inherent in the Due Process clause, federal courts will deny a remedy pursuant to a habeas corpus petition if the State provides an adequate procedural method for vindication of Constitutional rights. The Court examined Alaska law and cited several procedural mechanisms Osborne can invoke to adequately protect his rights. As long as the state courts provide an adequate forum for resolution of that claim, and no procedural hurdles are unfair, the prisoner (or in this case a parolee) can vindicate his claim. Substantive due process to protect "liberty interests," an amorphous doctrine at best, includes "principles of fundamental fairness rooted in the traditions and conscience of the American people as fundamental." In the Osborne case, no such history exists. Substantive due process Constitutionalizes an issue and forecloses the American people or a legislature from amendment or revocation of a court decision. To confirm substantive due process in the context of the facts in Osborne, federal courts would be swamped in rule making decisions not suited to their role. The Supreme Court conceded Osborne could argue his "liberty interest" and identified several procedural avenues he can pursue to vindicate his alleged right to DNA access under Alaska law. The Supreme Court identifies forty six state legislatures and the federal government which have provided the right to post conviction DNA testing under certain conditions, the vast majority mandating a claim of "actual innocence", not just trial court error. Given the two confessions Osborne gave to the parole authorities, this is a significant hurdle. Alaska is one of the few states that has not provided a comparable statute. But as the Supreme Court points out, the Alaska courts do provide alternative remedies available to Osborne other than 1983 and the Due Process Clause. The most important element in the Court's decision is refusal to allow a free standing substantive right under the Due Process Clause to compel a state to perform post trial DNA proceedings. The application of DNA testing is essentially an evidentiary issue best resolved in the laboratory of each state and its relevant law. The Court confirmed the right of individual states to legislate with appropriate procedural conditions to avoid endless appeals in state and federal courts. In other words, the Supreme Court has acknowledged the role of state sovereignty in responding to the developing scientific world of DNA. Justice Alito filed a succinct concurrence. Osborne denied submitting to a second DNA test during his trial in the Alaska courts. Once that strategic decision is made, he wrote, the defendant "games the system" by asking for the test after conviction.

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