Obama takes tough DNA evidence stance

by David G. Savage

The new deputy Solicitor General for the Obama administration urged the Supreme Court today to go slow in giving prisoners a right to seek DNA testing that could free them.

"Our position is there is no constitutional right to DNA," Neal Katyal, a former Georgetown law professor, told the justices.

Since 44 states and Congress have passed laws that allow inmates to request new DNA tests, he said the court should not by-pass these laws and establish a right to DNA testing for inmates.

"It is a no-cost proposition for the defendant," he said, and could "open the floodgates" to legal suits seeking new tests of old evidence.

During Monday's hour-long argument, the justices sounded closely split on whether to rule that a prisoner who maintains his innocence has a legal right to demand a modern DNA test on evidence in police files.

At least 232 prisoners have been exonerated by DNA testing, according to the Innocence Project in New York. Several of these freed prisoners had confessed to the crimes or been identified by eyewitnesses.

Peter Neufeld, a co-founder of the Innocence Project, argued the case on behalf of a convicted rapist from Alaska who says that a new DNA test will show he was wrongly convicted in 1993.

"It is absolutely undisputed," Neufeld said, "that DNA could conclusively prove his innocence."

But Neufeld spent much of the argument defending his client, William Osborne, against charges that he is "gaming the system."

During his trial, the victim of the assault and his co-defendant pointed to Osborne as a perpetrator of the rape. And a lab test included him among the 16% of the population that could have committed the rape. His lawyer, over the objections of Osborne, also chose not to seek a more sophisticated test on the semen sample.

"Mr. Osborne at all points wanted the test," Neufeld said.

That was not entirely clear, replied Justice Samuel A. Alito Jr. "He refuses to assert he is actually innocent," he said.

Several justices said they doubted Osborne should win his case against Alaska because he did not file a statement under oath asserting that he was innocent of the crime. Moreover, during a parole hearing several years ago, Osborne admitted to the crime, and he was then released before being arrested on another charge.

So, he could be "guilty of perjury one way or the other," said Chief Justice John G. Roberts Jr.

The Supreme Court has never before ruled that the Constitution's guarantee of "due process of law" gives convicted criminals a right to evidence. Persons who are on trial have a right to submit evidence on their behalf. They also have a right to evidence in the police files that could exonerate them.

But the court has been wary of extending this "due process" right to prisoners who have been convicted of a crime.

The court could take until June to decide the Osborne case.