Oral Argument Recap: District Attorney’s Office v. Osborne (08-6)

Erica Goldberg discusses Monday’s argument in Osborne.

Because so much is at stake in the case of District Attorney’s Office v. Osborne, including whether criminal defendants have a post-conviction right to access DNA evidence and whether they can sue under 42 U.S.C. § 1983 to vindicate that right, the March 2 oral argument was a battle over how to frame the relevant issues. Argument revealed a political schism among the Court, but even the conservative Justices were troubled by the prospect of restricting prisoners’ access to DNA evidence. Conversely, even the liberal Justices searched for a way to avoid constitutionalizing this issue, and hoped that Alaska would simply offer Osborne the remedy he deserves. Osborne’s fate may rest in Justice Kennedy, whose decision in turn may depend on the liberals’ ability to narrowly define a constitutional right.

Kenneth Rosenstein, the Assistant Attorney General of Alaska, began by arguing that § 1983 is an improper procedural device for asserting a post-conviction constitutional right to access DNA evidence. Rosenstein contended that, because Osborne is seeking to invalidate his conviction, he must file a habeas petition to obtain that evidence.

Justice Souter led the questioning with an assault on this logic. He posited that § 1983 is appropriate because Osborne does not know if the new DNA tests will invalidate his conviction; he simply wants access to the DNA to determine that issue. Then, if the DNA testing is exculpatory, Osborne can file a habeas petition to be released from prison.

Justice Scalia rescued Rosenstein from this line of questioning by exposing a problematic inconsistency in Osborne’s position: If Osborne is entitled to use § 1983 because he cannot yet assert his innocence, that weakens his constitutional claim that he has a right to DNA evidence after conviction. According to Scalia, Osborne could make a stronger claim if he asserted that DNA testing would prove his innocence, but this type of claim might render § 1983 inappropriate as a mechanism for accessing the evidence.

The other Justices then joined the fray until Justice Breyer clearly stated that, procedural issues aside, in his view this case is about whether the state must give Osborne the DNA evidence. This issue especially troubled the liberal Justices, who could not understand why Alaska would deprive Osborne of evidence that has the potential to conclusively prove guilt or innocence. As Justice Breyer asked, “Now, why don’t you want to give it to him?”

Deputy Solicitor General Neal Katyal, arguing on behalf of the United States as amicus curiae in support of Alaska, addressed Justice Breyer’s question by arguing that the Ninth Circuit’s extension of Brady rights to the post-conviction context would nullify states’ efforts to legislate in this area. Katyal then recounted all of the evidence indicating Osborne’s guilt, prompting Justice Kennedy to ask whether a constitutional right could be narrowed to cases in which the DNA evidence is highly likely to lead to exoneration.

The Court then grappled with creating a narrowly defined constitutional right during the questioning of Osborne’s attorney, Peter Neufeld. Perhaps Osborne should be required to swear to his innocence under penalty of perjury to access the evidence. (Osborne had confessed his guilt to the parole review board in an attempt to secure an early parole.) Or, perhaps a post-conviction right to access DNA evidence should exist only if it is clear that a defendant’s attorney was not trying to, as Justice Alito put it, “game the system.” (Osborne’s trial attorney made a tactical decision to forego the DNA testing that was available at the time of trial.) The Justices also sought ways out of this thorny issue, and hoped that perhaps Osborne could use Alaska’s habeas procedures instead.

Throughout argument, the Justices’ myriad hypotheticals displayed a grave appreciation for the vast implications of their ruling. To deny Osborne his DNA evidence would allow a state to arbitrarily deprive a prisoner of valuable scientific evidence, and deprive the justice system of important truth-determining tools. But to allow Osborne his DNA evidence would compromise the finality of all convictions involving scientific evidence, and might create perverse incentives for defense lawyers to manipulate the system.