DNA process should become routine in court

Freedom New Mexico

It is possible to see both sides in the difficult case of District Attorney’s Office v. Osborne, in which a divided U.S. Supreme Court recently decided this particular defendant did not have a post-conviction constitutional right to get access to evidence in the state’s possession so he could conduct his own DNA testing on it and establish rather definitively his guilt or innocence.

In a 5-4 decision the high court acknowledged DNA testing was in general a good thing but the courts should let state legislatures make rules about the circumstances under which it is made available to defendants.

The case was somewhat convoluted. A prostitute in Alaska was brutally raped, beaten, shot and left for dead, though she survived. William Osborne and an accomplice were convicted — Osborne of the actual rape and shooting. DNA testing of evidence found at the scene narrowed the identity of the perpetrator down to 5 percent of the population, which included Osborne, and based on that and eyewitness accounts he was convicted. He was eventually released on parole and has since been arrested, convicted and imprisoned for another offense.

As unsympathetic a character as Osborne is, does he still have a right, under the U.S. Constitution’s clause guaranteeing everyone due process, to get access to material that would allow him to perform a more sophisticated DNA testing than was available in 1993? The term “due process” has never been precisely defined and has evolved over the years as different techniques and technologies have become available. In essence it means the state must be scrupulously fair, sometimes even bending over backwards, when it accuses and convicts a person of a crime for which he or she may lose his or her liberty.

With Chief Justice Roberts writing for the majority, the high court ruled that setting up rules for DNA testing in criminal cases was a job for legislatures and state courts, most of which have already acted to establish procedures that are still evolving. Besides, at the trial, for strategic reasons, Osborne’s lawyer had declined to order a more sophisticated DNA test, which vitiated his right to demand an even more sophisticated test later.

The minority argued not only that Alaska state courts had been unreasonable in refusing to release DNA to Osborne, but that DNA had already proven itself to be so valuable in criminal cases that it just might be time to include DNA testing in the concept of “due process.”

On balance, although we sympathize with the majority’s desire not to dictate standards in a still-evolving area, we would like to see the court push harder to have DNA testing incorporated into as many phases as possible of the criminal justice process.