Legal Commentary

Two weeks late to the party, but a few thoughts on District Attorney's Office v. Osborne, in which the Court declined to recognize a right under due process (procedural or substantive) to have DNA testing performed on evidence held by the state.

First, in answer to Dan's question: Going into the argument, I thought that any right should be asserted through § 1983, not habeas. The right to test DNA did not necessarily go to the validity of the conviction or sentence or suggest that the claimant was being held in violation of the Constitution and laws. It was a stand-alone right to gather information from the state, information that might (depending on the result of testing) form the basis for a state post-conviction challenge or trial-court motion to vacate conviction; it was not Heck-barred (and forced into the habeas framework) because simply obtaining access to DNA did not necessarily imply the invalidity of the conviction. That depended on the next step of testing the DNA and what the tests revealed.

The majority assumed § 1983 was a proper vehicle and jumped ahead to reject the underlying constitutional right. Justice Alito addressed the § 1983 issue in a concurring opinion for himself and Justice Kennedy (Justice Thomas did not join this portion). Alito (apparently quoting from the plaintiff's allegations in this case) framed this as a Brady claim--an argument that the state had failed to turn over exculpatory evidence. By definition, the failure to turn over exculpatory evidence necessarily implies the invalidity of the conviction and Brady is a classic and common habeas issue. And it did not matter whether that failure occurred prior to trial (the paradigm) or after conviction.

It was a strong opinion. But ultimately I think Alito was wrong to treat this as a basic Brady case. Osborne did not know if the evidence he wanted access to was exculpatory; he believed it might be, but much depended on the outcome of testing he then wanted to perform. This is not typical Brady material, which usually is evidence that on its face tends to exculpate--the names and statements of witnesses who corroborate the defendant's alibi, information showing bias of key witnesses, misidentification in a line-up, or (to keep it in the DNA realm) the results of DNA testing suggesting the defendant did not commit the crime. In fact, there is no constitutional duty on a prosecutor to turn over information unless it appeared to have a tendency to exculpate.

Whether DNA is potentially exculpatory cannot be known until after testing and the whole basis for the claim was to get the opportunity to perform the test. This was more like typical discovery, the hunt for information to analyze and then decide the next step. And, it seems to me, that extra step before the DNA evidence could be used to challenge the underlying conviction makes a difference as to the appropriate litigation vehicle. Unlike Alito, I believe the Court's 2007 decision in Wilkinson v. Dotson (holding that a challenge to the procedures used in parole-eligibility determinations were cognizable under § 1983 because the finding of a violation only meant a new parole hearing, not earlier release from custody) controlled. Where the asserted right was merely a first step towards a possible future argument against the validity of conviction or sentence, § 1983 was the appropriate choice.

Second, the Court's refusal to recognize a due process right shows how far we have come (for better or for worse, I would suggest for worse) from the Warren Court. Several year ago, Corinna Lain argued that the Warren Court was not as counter-majoritarian in the criminal procedure realm as the myth suggests; instead, by the time the Court got around to recognizing certain constitutional rights, most states already had done so. Walter Dellinger makes a similar point yesterday on Slate's annual Supreme Court Breakfast Table (read the whole multi-part exchange) in talking about when the Court will expand substantive due process: the Court was willing to invalidate sodomy laws on due process grounds because by 2003 3/4 of the states had eliminated such prohibitions, while the Court was unwilling to invalidate prohibitions on physician-assisted suicide in 1997 because zero states allowed the practice. A similar story can be told about Loving v. Virginia, where by 1967 Virginia was one of only a few retrograde states that still had such laws on the books. All reflect the same basic point: The Court constitutionalizes due process protections only after similar, sub-constitutional protections have been widely (but not unanimously) popularly established, the basic function to pull stragglers along and imposing some national floor of rights.

Forty-six states, the District of Columbia, and the United States all provide some form of DNA testing. This is precisely the situation in which the Court might use due process to bring the four recalcitrant states in line and set the floor. Instead, Chief Justice Roberts emphasized that most states had taken steps and the stragglers, including Alaska, were taking the issue under consideration. There was no need, in other words, for the Court or the Constitution to step into the matter. Justice Stevens somewhat picked up on this point in his dissent, emphasizing that the state of Alaska had not explained its refusal to turn over evidence for testing here (Osborne had agreed to pay for it himself, so cost was not the issue) and suggesting that substantive due process would, at a minimum, force the state to explain its refusal.