Supreme Court Rules that DNA Testing is Not a Right for Criminal Defendants

William Osborne

By Leland C. Abraham, Esq.

The Supreme Court, in a 5-4 decision, turned down an Alaska man’s request for DNA testing. Many have argued that the Supreme Court committed a grave disservice to the cause of justice.

William Osborne was convicted of raping and nearly killing a prostitute in Anchorage, Alaska in 1993. The DNA testing at the time concluded that Osborne could have been among the 15-16% of the African-American community who could have committed the crime. This level of uncertainty is likely not to have held up in a modern court case. More unnerving is that his lawyer is reported to have advised him against seeking a better DNA test.

In the decision, the justices did not reject Osborne’s claim on the merits of his case, but rather they rejected it because they stated that it was not their jobs. Herein lies a problem with how the Supreme Court is interpreted. The function of the Supreme Court is not to make the laws, but it is to interpret the law. Thus, because the Supreme Court is not a rule-making body, it does not have the authority to declare that an inmate has a Constitutional right to DNA testing, no matter how grave the injustice. In response to this case, Chief Justice John Roberts stated, “The elected governments of the States are actively confronting the challenges DNA technology poses. . . . To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response.” The rule making authority has been left to legislatures.

What makes this case so unique is that the denial of DNA testing is usually premised on the fact that DNA testing is so expensive. Generally, DNA tests costs thousands of dollars to conduct and the state usually does not have an abundance of money to expend on every request for a DNA test. However, that is not the case for Mr. Osborne. The reports are that he offered to pay for his own test, so money would not have been a factor for the Alaska Courts to consider. This may just be an Alaskan practice. Although DNA testing has freed over 240 inmates across the nation, Alaska has not granted a single DNA review for a convicted inmate according to the four dissenting justices. One of the dissenters, Justice John Stevens said, “When absolute proof of innocence is readily at hand, a State should not shrink from the possibility that error may have occurred.” Herein lies the confusion of the Court’s decision. While it is recognized that the Supreme Court does not have rule-making capabilities, it is a court of review. The statements by Justice Stevens clearly indicate an affront to Mr. Osborne’s right to Due Process. This alone would have given the Supreme Court jurisdiction to determine whether Mr. Osborne was denied Due Process of law by lacking proper access to the DNA technology. This would take the matter out of the state court jurisdiction and put it right where it should have been, the Supreme Court. However, the Supreme Court decided that it did not have authority to rule on the matter which appears to be a misinterpretation of the Supreme Court’s authority.

Most states provide for post-conviction DNA testing. In the few that do not, the inmate is out of luck in proving his innocence. In review of Alaska’s practice, Justice John Roberts acknowledged that most states had post-conviction access to DNA technology and because those states had it, he saw “nothing inadequate” concerning Alaska’s procedure. Alaska may not have cared that it subverted the Constitutional rights of an American citizen, but it is surprising that the US Supreme Court may have cared even less.

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