On June 18, 2009, the Supreme Court issued a long-awaited opinion in District Attorney’s Office for Third Judicial District v. Osborne, 557 U.S. _ (2009). on whether an individual convicted of a crime has a constitutional right to obtain a DNA sample that might exonerate him. The analysis presented here suggests that the 5-4 decision should not be construed as a sweeping rejection of due process claims for the production of DNA evidence after conviction. Because the opinions in the case are rather shallow in their treatment of what postconviction DNA testing could have shown (with both the majority and minority opinions relying on sweeping generalities and convenient assumptions), I also discuss this scientific issue.

The report here combines and expands material previously posted to the now defunct Science and Law Blog on the Law Professors Blog Network.

On June 18, 2009, the Supreme Court issued a long-awaited opinion on whether an individual convicted of a crime has a constitutional right to obtain a DNA sample that might exonerate him. The case that raised this issue produced four appellate opinions before the Court acted. The one that the Supreme Court reviewed was Osborne v. District Attorney’s Office for Third Judicial District, 521 F.3d 1118 (9th Cir. 2008).

The case began in 1994 with a vicious attack on a prostitute. The evidence that led to William Osborne’s conviction included semen from a condom that was analyzed with a relatively unrevealing form of DNA testing. While pursuing other avenues of relief, Osborne filed an action in federal district court under a civil rights statute, 42 U.S.C. � 1983, to force state officials to give him the biological material for more modern DNA testing. Unlike most other states, Alaska has no statute specifically prescribing the conditions under which prisoners can obtain post-conviction DNA testing. After some twists and turns, the district court decided that Osborne had a “limited” due process right to the sample.

The Ninth Circuit affirmed, emphasizing that the crime-scene DNA sample had been introduced at trial as evidence against him, that more definitive testing now is available at no cost to the state, and that Osborne could use an exculpatory finding to obtain post-conviction relief. Although the state of Alaska contended that the Ninth Circuit “created from whole cloth” a new constitutional right, other courts had found that such a constitutional right exists. E.g., Savory v. Lyons, 469 F.3d 667 (7th Cir. 2006); McKithen v. Brown, 565 F.Supp.2d 440 (E.D.N.Y. 2008).

Osborne was pursuing state habeas corpus relief, but he never sought federal post-conviction relief. Given the many limitations of federal habeas corpus and the state court decisions to date, he argued that a prisoner has a “freestanding” right to be released because he can show that, despite a fair trial unblemished by any prejudicial errors, he is actually innocent. In House v. Bell, 547 U.S. 518 (2006), the Supreme Court recognized that such a right might exist, but the Court determined that even if it did, the proof of actual innocence in that case did not satisfy the “extraordinarily high … threshold for any hypothetical freestanding innocence claim.” Id. at 555.

Disappointingly, in Osborne, the Supreme Court avoided this core issue of whether a prisoner has a right to be released upon a showing that he is probably innocent of the crime for which he was convicted after a fair trial. It did so in a 5-4 decision by reasoning that even if this right exists, a prisoner has no due process right to test the DNA from the scene of a rape after the conviction when (1) the convicted offender did not seek extensive DNA testing before trial even though it was available (see the “prescript” at the end of these remarks), (2) he had other opportunities to prove his innocence after a final conviction based on substantial evidence against him, (3) he had no new evidence of innocence (only the hope that more extensive DNA testing than that done before the trial would exonerate him), and (4) even a finding that he was not source of the DNA would not conclusively demonstrate his innocence (obviously, a tough standard to meet). Unless the Court overrules itself, later courts will have to figure out which combination of these factors should be dispositive in future cases.

Chief Justice Roberts’ opinion for the majority begins with the observation that “DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty.” Sure, DNA evidence is highly probative in certain types of cases, but is it truly “unparalleled”? What happened to fingerprints as a biometric identifier? Is this another example of “DNA worship”?

Another oddity in the case is Justice Alito’s remarks, in a concurring opinion, that the DNA sample here might be so small, degraded, and contaminated (because the condom sat outside for 24 hours) that a failure to find STR aleles matching Osborne would not mean much. To support this speculation, Justice Alito relied on some law review articles that noted that some fraction of DNA samples have these problems. Yet, there was enough undegraded material in the condom for HLA DQA testing (which linked Osborne to the sample) and, apparently, for RFLP testing (which Osborne’s counsel chose not to pursue before trial). At a minimum, it would seem that the case could have been remanded for a determination of whether the DNA here was as degraded, contaminated, and limited as Justice Alito thought it could have been.

The most persuasive part of Justice Alito’s opinion (and of all the opinions denying Osborne relief) is the suggestion that due process does not require relief when the prisoner demanding extended DNA testing after trial avoided it (through counsel) before trial. This strategy smacks of “gaming” the system.

Many observers have condemned the majority opinion or result (usually on the basis of very general statements about DNA testing and false convictions). A New York Times editorial depicted the 5-4 vote as the work of a conservative bloc of Justices insensitive to the plight of real human beings. This characterization seems inspired by recent Justice-confirmation politics. In nominating Judge Sonia Sotomayor to the Court a few weeks before the opinion was released, President Obama explained that he wanted individuals with “an understanding of how the world works and how ordinary people live.” If the stylized answers to questions at the confirmation hearing before the Senate Judiciary Committee are any indication, however, — and they probably are not — in future cases the newest Justice should follow the timid approach to due process rights displayed in Chief Justice Robert’s opinion for the Osborne Court.

The Crime

In March 1993, two men paid a female prostitute (K.G.) to perform fellatio. They then drove her to “a service road … in an isolated area on the outskirts of Anchorage … near Earthquake Park.” Osborne v. District Attorney’s Office for Third Judicial Dist., 521 F.3d 1118, 1137 (9th Cir. 2008). Judge Melvin Brunetti, writing for himself and judges Alfred T. Goodwin and William A. Fletcher, described a brutal attack in which the driver hit K.G. in the head with a gun and the passenger, wearing a blue condom, “vaginally penetrated her” (id. at 1122), choked and shot at her, and both of them beat her with an axe handle. They left her, half buried in the snow, for dead.

Incredibly, K.G. “got up, walked to the main road, flagged down a passing car, told its occupants what had happened, and–hoping to avoid the police–asked only for a ride home.” Id. After a neighbor of one of the car’s occupants notified the police, an uncooperative K.G. “eventually described the incident.” Id. During the medical examination, a “vaginal examination was not performed, however, because the passenger-rapist had worn a condom and K.G. had bathed repeatedly since the attack. At the crime scene, Anchorage police recovered from the snow a used blue condom, part of a condom wrapper, a spent shell casing, and two pairs of K.G.’s grey knit pants stained with blood.” Id.

The Suspects and the DNA

“A week later, military police stopped Dexter Jackson for a traffic infraction.” Id. Because Jackson and his car “resembled … sketches that had been circulated after the assault … , the military police contacted the Anchorage Police. Jackson confessed and identified Osborne as the passenger on the night of the assault. K.G. identified him and his car. And, the police collected considerable circumstantial evidence establishing that K.G. had been in the car and that the car had been at the location she had described.

The case against Osborne was weaker. K.G. picked photos of him and another person from a photo spread, and she thought “Osborne was ‘most likely’ to have been the passenger who raped and shot her.” Id. Although she pointed to Osborne at trial, she originally described the passenger as older and heavier than Osborne, and as clean shaven rather than mustached (as Osborne was). Osborne had been to an arcade some time before the attack, and there were paper tickets from there in the car. Id. at 1124. Some witnesses saw Osborne get into the car before the crime. Others saw Osborne and Jackson together after the attack, and they saw blood on Osborne’s clothing. Two pubic hairs from the blue condom and another one from K.G.’s sweatshirt (which was beneath her in the car) were microscopically similar to Osborne’s. And, there was DNA evidence.

The DNA

Along with the two pubic hairs, the blue condom contained sperm. In 1993, the most revealing DNA tests detected VNTR (variable number tandem repeat) types. VNTRs are like freight trains with lots of cars. The DNA boxcars are sequences of DNA about 15-35 base pairs long. At a location (a “locus”) on a chromosome, a particular one of these sequences is repeated many times. Just as different trains have different numbers of boxcars, different people usually have the different numbers of repeat units, and this causes the lengths of the VNTRs to be quite variable in the population.

But VNTR testing was not done in this case. The crime lab “felt that the sample was [too] degraded” for VNTR testing to work. Id. at 1123. (As an aside, it is not obvious why the DNA in the condom would have been very degraded. DNA is a rather stable molecule. Bacterial enzymes will degrade it by cutting it into small pieces. That is why DNA should not be stored in warm, moist conditions, but the condom was recovered from the snow within 24 hours.)

Osborne’s lawyer knew about DNA testing. She met with the crime lab analyst, reviewed some “research articles, and conferred with a Fairbanks public defender who was litigating the scientific basis of DNA testing.” Id. In a post-conviction affidavit, she stated that she did not press for VNTR testing because she did not believe her client was actually innocent and concluded that he “was in a strategically better position without RFLP [VNTR] testing.” Id. at 1124.

This is not to say that Osborne’s strategic position was great. The laboratory had performed a less-discriminating DQ-alpha test. DQ-alpha is a gene in the major histocompatibility complex that produces the genetic markers that constitute individual tissue types. The DQ-alpha type in the sperm was the same as Osborne’s. That is incriminating, but not terribly so, for “one in every 6 or 7 black men” have the same type. Thus, defense counsel had decided it was better to deal with this limited DNA information at trial than to risk a match to VNTR types that could produce figures like one in a million.

The Alaska Proceedings

At a joint trial with Jackson, Osborne was convicted of kidnapping, assault, and sexual assault, and was sentenced to 26 years imprisonment. The Alaska Court of Appeals affirmed, and Osborne did not appeal further.

Years later, he brought an action for post-conviction relief in Alaska Superior Court. He contended that his lawyer’s decision not to pursue VNTR testing amounted to ineffective assistance of counsel and that he had “a due process right, under either the state or federal constitution” to have to the DNA tested with more modern procedures. Id. After this court rejected his claims in 2002, Osborne appealed to the Alaska Court of Appeals. In 2004, he also applied to the parole board. He confessed to the attack and provided details. The board denied his application. The court of appeals held open the possibility that of relief. It remanded the case to the superior court to decide if the original conviction rested primarily on eyewitness identifications, if “demonstrable doubt” as to that identification existed, and if DNA testing could “be conclusively exculpatory.” Id. at 1125. The superior court determined that these stringent conditions had not been met, the court of appeals affirmed, and the Alaska Supreme Court denied review.

The Federal Proceedings

While Osborne was unsuccessfully pursing the post-conviction remedies in the Alaska courts, he was in federal court asserting a due process right to test the DNA at his own expense. Specifically, he filed an action against Alaska officials under 42 U.S.C. � 1983, a civil rights statute, alleging that by refusing to give him the hairs and the semen, Alaska officials were violating his federal rights under the due process, equal protection, confrontation, compulsory process, and cruel and unusual punishment clauses. The federal district court dismissed the action on procedural grounds. It reasoned that the only way to obtain federal court-ordered post-conviction access to an old DNA sample for the purpose of overturning a conviction was through a petition for a writ of habeas corpus.

Osborne appealed this ruling, and the Ninth Circuit reversed the district court. Osborne v. District Attorney’s Office, 423 F.3d 1050 (9th Cir. 2005) (Osborne I). It remanded the case, instructing the district court to decide whether Osborne had a federal right to obtain the DNA samples. After some additional procedural skirmishes, the district court ruled for Osborne. This time the state appealed to the Ninth Circuit. Osborne v. District Attorney’s Office for Third Judicial Dist., 521 F.3d 1118 (9th Cir. 2008) (Osborne II). The panel affirmed the district court, and that is the ruling that the United States Supreme Court will review.

The Osborne II opinion

In Osborne II, the Ninth Circuit relied on Brady v. Maryland, 373 U.S. 83 (1963), to find a federal right to access DNA evidence based on “only a reasonable probability that with favorable DNA test results he could affirmatively prove that he is probably innocent.” 521 F.3d at 1131. In Brady, Maryland prosecuted Brady and a companion, Boblit, for murder. Brady claimed Boblit had done the actual killing. The prosecution had withheld a written statement by Boblit confessing that he had performed the act of killing by himself. The Court held that for the government to conduct a trial while withholding material, exculpatory evidence violates due process.

The Ninth Circuit extended the Brady right to receive exculpatory evidence at or before trial to the post-conviction context and to evidence that might not, in the end, prove to be exculpatory. It did so even though there was no case seeking post-conviction relief before it. It is tempting to describe the case as a freefloating discovery claim predicated on a freestanding actual innocence theory. The state can be expected to challenge both aspects of the claim.

Having determined that Brady applies in the � 1983 context, the Ninth Circuit addressed the standard of materiality: How great must the potential exculpatory value of DNA testing be to require the state to turn over the sample? There are two parts to this question. First, how clear is it that DNA testing would produce usable results? The opinion provides little information with which to answer this question. Since the state is in possession of the DNA evidence, however, it would be unreasonable to require the prisoner to prove that the sample is of a sufficient quality and quantity for successful DNA testing. Often, this will not be known until the laboratory does the testing.

Second, given the other evidence in the case, what would an exclusion of the defendant imply about his actual innocence? In this regard, the court rejected “the extraordinarily high standard of proof that applies to freestanding claims of actual innocence.” Id. at 1132. The Ninth Circuit, having previously allowed freestanding claims, requires that a prisoner “go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent.” Id. (quoting Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (en banc)). If the due process theory is that the discovery right is parasitic on a later claim of actual innocence (which seems to be the only route left open to Osborne for judicial relief from imprisonment), one would think that the prisoner must show that a DNA test that excludes him as the source of the crime-scene DNA demonstrates, in the context of the case, that “he is probably innocent.” Invoking Brady, however, the court suggested that a weaker standard should apply– a “showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict” (id. at 1133 (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)) or that, as Osborne framed it, there is “a reasonable probability that, had the evidence been disclosed to the defense, the result of his trial would have been different.” Id. at 1134.

In the end, the court split the difference. It left “to another day” the possibility that it would adopt Osborne’s version of the Brady standard in the post-conviction context. In this case at least, the court thought it sufficient to conclude that there was “a reasonable probability that, if exculpatory DNA evidence were disclosed to Osborne, he could prevail in an action for post-conviction relief.” Id. We seem to be left with a reasonable probability of probable innocence.

In fulfilling this standard, or some variation on it, further questions arise. Are we to consider the possibility that, if the DNA were successfully typed and a prisoner excluded, the crime-scene DNA profile would match a record on a state or federal DNA database? Once another suspect is identified in this way, would an investigation of this individual show his guilt and the prisoner’s innocence?

A final quirk in the Ninth Circuit opinion is the court’s insistence that it “need not decide the open questions surrounding freestanding actual innocence claims” and that it merely needed to “assume for the sake of argument that such claims are cognizable in federal habeas proceedings” to conclude that Osborne had a post-Brady right to secure evidence that might help him a federal habeas proceeding. Id. at 1131. This approach seems incoherent. New DNA testing cannot show that any error occurred at Osborne’s trial. Its only relevance lies in proving his actual innocence, either in a pardon application, a state post-conviction case, or a federal habeas proceeding. For a court to derive the discovery right from the right to prevail in a federal habeas case, as the Ninth Circuit tried to do, there must be a freestanding due process right to be released because of actual innocence. The discovery right is parasitic. It cannot survive without its host.

What Might New Testing Prove?

The Ninth Circuit wrote that the DNA tests that Osborne is seeking can distinguish “one in a billion people, rather than one in 6 or 7” because there are 13 STR loci to test rather than one DQ-alpha locus. Id. at 1126. This actual situation is more complex. STRs are “short tandem repeats.” They are similar to VNTRs, but they are more like small toy trains than the full-scale VNTRs. The STR boxcars are only four base pairs long, and the STR trains consist of between three and 50 such boxcars. “Degradation” refers to long DNA molecules being broken up into shorter ones. Because the STR segments of DNA are much shorter than the VNTRs, even if the DNA in the semen is too degraded for VNTR analysis, it might well be long enough for STR analysis. But it is hard to say how many loci will be typeable if the DNA is degraded. The court’s opinion reads as if the test will work at either 13 loci or none. In fact, the number of typeable loci could be considerably more than 13 loci, or it might be less than 13 but still more than zero.

If the 13 loci that are routinely analyzed are all typeable, then the test will be even more powerful than the court suggested. Because some STR alleles are more common than others, different alleles give rise to different random-match probabilities. Ignoring close relatives and population structure, the random-match probability ranges from about 1 in 160 billion for the most common alleles to an unbelievably small one in 1050 (a one followed by 50 zeroes.) This means that if the sample is amenable to STR analysis at a goodly number of loci, testing is almost certain to exclude Osborne — if the DNA in the condom is not his.

For reasons that I won’t go into here, even if there is too little DNA in the condom and the pubic hairs to give any STR results, mitochondrial DNA testing might exclude an innocent Osborne. Mitochondrial-DNA sequencing is nowhere near as powerful as STR testing typically is, but it is better than (and independent of) the DQ-alpha testing that was done in 1993. Therefore, even if the STR testing fails, there is a good chance that mitochondrial testing will exclude Osborne — again, if he is innocent.

(Thanks to Andrew Hessick for looking at a draft of this posting and to Ira Ellman, Carissa Hessick, and Carrie Sperling for listening to me blabber about some of the issues noted here.)