Total WTF? on District Attorney’s Office for the Third Judicial District et al v. Osbourne.

New York Times story on the Court’s D.A.’s Office v. Osbourne decision:

Convicts do not have a right under the Constitution to obtain DNA testing to try to prove their innocence after being found guilty, the Supreme Court ruled on Thursday.

Opinion of the Court delivered by Chief Justice John Roberts:

DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigative practices. The Federal Government and the States have recognized this, and have developed special approaches to ensure that this evidentiary tool can be effectively incorporated into established criminal procedure — usually but not always through legislation.

“Against this prompt and considered response, the respondent, William Osborne, proposes a different approach: the recognition of a freestanding and far-reaching constitutional right of access to this new type of evidence. The nature of what he seeks is confirmed by his decision to file this lawsuit in federal court under 42 U. S. C. §1983, not within the state criminal justice system. This approach would take the development of rules and procedures in this area out of the hands of legislatures and state courts shaping policy in a focused manner and turn it over to federal courts applying the broad parameters of the Due Process Clause. There is no reason to constitutionalize the issue in this way. Because the decision below would do just that, we reverse.”…

“Modern DNA testing can provide powerful new evidence unlike anything known before…. It is now often possible to determine whether a biological tissue matches a suspect with near certainty…. The availability of technologies not available at trial cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt. The dilemma is how to harness DNA’s power to prove innocence without unnecessarily overthrowing the established system of criminal justice.

That task belongs primarily to the legislature.

Umm… No, it doesn’t. How does Mr. Roberts acknowledge the empirical significance of DNA’s “unparalleled ability to exonerate the wrongly convicted” and the legal precedence acknowledging such significance (even absent of legislation) and say when such empirical evidence is consciously ignored or the testing of such evidence is outright refused by fiat, a conviction isn’t “suddenly in doubt” and that reason is based on the arbitrary whim of a cynical organization called the “legislature”? This is the very definition of reasonable doubt and the burden of proof lies on the State to test such evidence to reasonably uphold a conviction.

From Justice Samuel Alito’s concurrence:

“Respondent was convicted for a brutal sexual assault. At trial, the defense declined to have DNA testing done on a semen sample found at the scene of the crime. Defense counsel explained that this decision was made based on fear that the testing would provide further evidence of respondent’s guilt…. a defendant who declines the opportunity to perform DNA testing at trial for tactical reasons has no constitutional right to perform such testing after conviction.

Under the hypothetical ‘non-hypothetical imperative’ that the U.S. Constitution is something “good” in the Kantian sense, Mr. Alito, the State has no constitutional right to confine an individual who isn’t guilty beyond a reasonable doubt. The DNA either corroborates Mr. Osborne’s claim that his confession was false, it doesn’t or it doesn’t and he’s still guilty beyond a reasonable doubt. Whatever reason for his representation to deny such testing at trial doesn’t serve as a permanent forfeiture of a right to consent to fluids of his body to be tested. A fortiori, the individuals employed by the State have no right to remove another individual’s liberty if the State cannot prove beyond a reasonable doubt — yesterday, today, or tomorrow — that the individual initiated force against another and that said criminal has not fully restituted his victim and that said criminal has not served a punishment in a restorative manner. [1]

On the (LRC Blog), libertarian legal theorist Stephan Kinsella goes “Duh!” to the existence of the Court’s opinion in his post:

This should be no surprise. After all, ignorance of the law is no defense — this makes sense when law is restricted to malum in se; but it’s perverse when it applies to artificial crimes, malum prohibitum offenses (see also Mencken on this). And if the state can convict you of a malum prohibitum offense — one in which you are not really guilty of any real crime–then it should also be no surprise that actual innocence of committing even a genuine crime — malum in se — is not a defense.

The Court’s claim that it mustn’t override the legislature’s absence of enumerating such postconviction testing is downright laughable. The blatant ignorance of the reason employed by Justice Souter’s partial dissent — which acknowledges the absence of such specific rights on paper and that haste would be negligent to impose on procedural conduct — kinda’ makes you go, “Duh!”:

Substantive due process expresses the conception that the liberty it protects is a freedom from arbitrary government action… It is crucial, first, to be clear about whose understanding it is that is being taken as the touchstone of what is arbitrary and outside the sphere of reasonable judgment. And it is just as essential to recognize how much time society needs in order to work through a given issue before it makes sense to ask whether a law or practice on the subject is beyond the pale of reasonable choice, and subject to being struck down as violating due process….

“I do not think that the doctrinal requirement necessarily stands in the way of any substantive due process consideration of a postconviction right to DNA testing, even as a right that is freestanding. Given the pace at which DNA testing has come to be recognized as potentially dispositive in many cases with biological evidence, there is no obvious argument that considering DNA testing at a general level would subject wholly intransigent legal systems to substantive due process review prematurely. But, as I said, there is no such issue before us, for Alaska does not flatly deny access to evidence for DNA testing in postconviction cases.

Even the ‘loyalist to precedence’ school of thought is intellectually bankrupt on this one. As Justice Souter is within precedence to note that a wealth of precedence exits relating to legal recognition of DNA testing — therefore, would not be ‘bad timing’ to precede the state legislature — and that the state of Alaska “does not flatly deny access to evidence for DNA testing in postconviction cases”. The same ‘loyalist’ opinion is conveniently ignorant (as usual) to the basic natural law theory: that the absence or presence of a man-made statute does not serve as a posteriori reasoning to legitimize the use to force. In this case, the State is using force in the form of confinement (and all one is subject to while confined) and the seizure of his property in order to prevent Mr. Osbourne from employing a method to simply make the case that confining him is illegitimate and the Court arbitrarily legitimizes this based on the absence of the method within Alaska’s procedural code.

I presume that Mr. Osbourne’s hope is that were he to prove his innocence (which I’m not knowledgable to say is or isn’t provable [2]), there are those on the bench governing the State’s dispute resolution tribunal halls who define “right and wrong” solely by opinions of others — regardless of rationale. AntiWar Radio host Scott Horton commented to Mr. Kinsella’s post on facebook: [3]

Heck, even if you do get the DNA evidence, good luck then: “We can’t give new trials to everyone who establishes, after conviction, that they might be innocent. We would have no finality in the criminal justice system, and finality is important.”Sharon Keller, Texas Court of Criminal Appeals

I’m not sure if rationalizing assault, kidnapping, and theft with the arbitrary whim of another is evil, stupid, or both. [4]


  1. For a much better basic theory on restorative justice, see “Punishment and Proportionality”, Chapter 13 of Murray Rothbard’s The Ethics of Liberty pgs. 85-96 [.pdf]
  2. I’m with Justice Antonin Scalia in being “struck by the absence of a full-throated declaration of innocence”, only that “retesting of the condom will prove once and for all time… either… guilt or innocence” is another weird aspect of this case. (NYT)
  3. This comment was amended to Mr. Kinsella’s LRC blog post, “Supreme Court: Innocence is No Defense
  4. This post is a stream of consciousness. If you’re a Constitutionalist or libertarian looking for purity, I apologize if my morality seems confusing. Feel free to comment here, email me, or post an open reply to your blog with a trackback and I’ll respond, if something really bites your ass.

  1. […] Blog SCOTUS: The State Possesses an Inherit ‘Right’ to Deny DNA Testing to Exonerate Inmates 18 June 2009 Little AlexDaily Briefing — 16th-17th June 2009 17 June 2009 EditorsIran Election […]

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