U.S. Supreme Court to Decide Whether Prisoners Have a Right to Post-Conviction DNA Tests

(WASHINGTON, DC; January 27, 2009) -- The federal Constitution allows prisoners access to DNA testing that could prove their innocence -- particularly when a state lacks a law granting DNA testing and the state can show no reason to deny it -- the Innocence Project argued in a brief filed at the U.S. Supreme Court.

The Innocence Project represents William Osborne, who was convicted of rape, attempted murder and related charges in 1993 in Alaska. For eight years, Osborne has sought advanced DNA testing that could prove his innocence. Alaska is one of just six states without a law granting post-conviction DNA testing. In 2007, the U.S. Court of Appeals for the Ninth Circuit ruled that it is unconstitutional to deny him access to DNA testing, and the state appealed that ruling to the U.S. Supreme Court, which will hear oral arguments in the case on March 2.

"The issue in this case is whether a state can deny a prisoner access to DNA testing that was not available at the time of trial and has the potential to prove his innocence. In the vast majority of cases, prisoners are granted DNA testing under state law or because prosecutors consent to testing without a court order. Alaska is the exception. It is the only state in the nation with no known case of a prisoner receiving DNA testing, either through court order or a prosecutor's consent. This case involves a very important constitutional protection -- one that is the only option for William Osborne," said Peter Neufeld, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.

In asking the Supreme Court to take the case, the state conceded for the first time that favorable DNA testing "would conclusively establish [Osborne's] innocence" -- raising more questions about why the state will not simply consent to DNA testing. The testing would come at no cost to the state, since the Innocence Project will pay for it, as the organization does in most of its cases. In its Supreme Court brief, the state makes procedural claims against Osborne's lawsuit seeking DNA testing but never gives a rationale for denying him access to testing itself. In oral arguments at the U.S. Court of Appeals for the Ninth Circuit, a three-judge panel repeatedly questioned the state's attorneys about why they are denying Osborne access to DNA testing. The attorneys said they were not "willing or able" to answer any of those questions "at this time."

In its brief on behalf of Osborne, the Innocence Project outlines a long history of legal precedent giving prisoners access to evidence and protecting their ability to prove their innocence under the Due Process Clause of the U.S. Constitution. The brief also explains that limited DNA testing was available at the time of Osborne's trial but that type of DNA testing was about as discriminating as blood-type testing -- whereas newer, more sophisticated DNA testing can identify individuals uniquely. The case before the Supreme Court does not seek to overturn Osborne's conviction or challenge any part of the process leading to his conviction -- instead, it challenges the government's arbitrary refusal to permit him access to the evidence in his case so that it can be subjected to testing that was not available at the time of his trial.

"DNA technology is new, but the principles in this case have a long and rich tradition. For decades, the Supreme Court has recognized that defendants need access to evidence and people's right to liberty must be protected even after they are convicted. More recently, courts across the country have recognized the power of DNA testing to resolve claims of innocence," Neufeld said. "Most prosecutors, judges and states recognize that while DNA testing in these cases may not always protect a conviction, it protects our system of justice by revealing the truth."