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Tuesday, June 30, 2009

Osborne and due process

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.

Posted by Howard Wasserman on June 30, 2009 at 06:54 AM in Howard Wasserman, Law and Politics | Permalink


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The argument that this is not a Brady claim seems too clever by half.

While in the abstract, DNA bearing material is not necessarily exculpatory, in any case where a criminal defendant is willing to put this to the test, it surely has a high probability of being exculpatory, since the criminal defendant generally knows what his or her involvement in the crime was when the request is made by the defendant.

Also, even though a convicted prisoner may have little to lose, there are few more convincing ways to destroy all of your other appellate and post-conviction options via harmless error analysis than establishing your own guilt beyond any reasonable doubt with physical evidence through a post-conviction DNA test.

It also seems reasonable to condition a post-conviction affidavit of actual innocence. This is a low cost barrier to someone who is actually innocent, but presents high risks of additional years in prison, negative parole hearings and correctional discipline if the DNA test links someone to the crime post-testing.

Posted by: ohwilleke | Jul 1, 2009 1:44:59 AM

As for the habeas issue, if one characterizes Osborne's due process claim as a right of post-conviction access to evidence that will secure his release, it looks like a habeas claim. If, on the other hand, Osborne's claim is characterized as asserting a right of access to evidence that may or may not lead to his release, the legal basis for recognizing a claim that may not in fact secure his liberty is surely thinner. Does substantive due process secure a right of post-conviction access to evidence when the prisoner cannot establish a likelihood that the evidence will lead to his release? Even Brady requires that exculpatory evidence be "material" to guilt. Why doesn't Osborne's substantive due process claim also turn on his ability to overturn his conviction, just like a post-conviction Brady claim?

As for the merits, Osborne had a substantive due process claim only if the state had deprived him of "due process." In the states that grant a statutory right of access to this kind of evidence, surely there is no due process right go to federal court in order to obtain evidence after a conviction -- the prisoner must go to state court not on a theory of exhaustion, but because state law supplies all the process that is due -- whether you call it substantive or procedural (and it is far from clear to me that Osborne's claim is properly characterized as "substantive," but that's a detail). Here, however, it was unclear whether Alaska had denied Osborne access to evidence on an unconstitutional basis. Maybe he would have received the evidence in state court. Maybe he would have lost only because he had conceded his guilt in parole proceedings, and perhaps substantive due process permits that kind of forfeiture. Maybe Osborne would have lost only because his attorney had earlier made a tactical decision not to perform a DNA test that was nearly as probative, and perhaps substantive due process permits that kind of forfeiture as well. Because state law was so unclear, it was equally unclear what, if anything, Alaska had denied Osborne in terms of "substantive due process," or so it seems to me.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jun 30, 2009 9:21:56 PM

Two thoughts:

1) He was not asserting a due process right to release--at least not right now. He was asserting a due process right to access to the DNA evidence so he could test it. The later right to release (if it exists as an independent constitutional right) was not in play just yet. That is why I thought § 1983 was the proper vehicle.

2) Requiring exhaustion makes sense if his claim was based on procedural due process, but not substantive due process, which does not turn on what happened in state court under state law.

Posted by: Howard Wasserman | Jun 30, 2009 5:08:27 PM

One of the difficulties with this case was that we do not know whether Alaska would have given Osborne access to the evidence he sought because he had not exhausted his state remedy with respect to the type of DNA test he sought to perform. As the Court stressed, perhaps Osborne would have been able to obtain the evidence under Alaska law, or perhaps the state courts would have denied relief solely on the ground that Osborne had admitted his guilt in parole proceedings, or had made a tactical decision not to seek other DNA evidence nearly as probative. Thus, the case did not present in a clean fashion the question whether due process ever requires that a prisoner receive access to potentially exculpatory evidence.

These problems suggest to me that it would have been wise to require Osborne to exhaust his state-law remedies. To me, the habeas question turns on whether an element of Osborne's claim is that the evidence he sought would establish his right to release. Osborne was evasive on this point -- but the fact that he eventually asserted his innocence unambiguously (at oral argument) suggests to me that the Court should have treated this as a habeas case on the theory that Osborne's innocence on the charge on which he was imprisoned was an element of his due process right to release. If not, I think the Court should have abstained pending litigation in state court. Surely the case would have been in a far more satisfactory posture if the state courts had ruled on the same claim that Osborne presented in federal court, no?

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jun 30, 2009 11:19:25 AM

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