Tag Archives: Osborne

Maryland v. King: “Quite a Worldview”

Supreme Court watchers took note of an article by an astute reporter on “an irony” in the fact that Justice Kennedy’s opinion for the Court in Maryland v. King cited Actual Innocence, an important book about DNA exonerations. See A Digression on Ellipses, Actual Innocence, and Dr. Mengele, June 13, 2013.

But one of the book’s authors, Peter Neufeld, was “feeling less than honored” by this nod from the Court:

Part of the problem was what he called an irony. [�] In 2009, Justice Kennedy joined the majority opinion in a 5-to-4 decision that said prisoners had no constitutional right to DNA testing that might prove their innocence. Mr. Neufeld, who founded the Innocence Project with Barry Scheck, represented the prisoner on the losing end of that case, District Attorney’s Office v. Osborne.

But last week, Mr. Neufeld said, Justice Kennedy concluded that “it’s O.K. for the state to take DNA, without a warrant, from mere arrestees, who may ultimately have their charges dismissed.” [�] The combination of the two decisions baffled Mr. Neufeld. “That is quite a worldview,” he said of a jurisprudence that allows nonconsensual testing of people presumed innocent but denies voluntary testing to people who insist that they really are innocent.

Adam Liptak, Cited by a Justice, But Feeling Less Than Honored, N.Y. Times, June 11, 2013, at A15.

This juxtaposition of King and Osborne is “quite a worldview,” but it is not an accurate description of the Court’s jurisprudence on DNA evidence. … continued on the FSSL Blog.

After Osborne: Supreme Court returns to the issue of postconviction DNA testing

Within a fortnight, the Supreme Court will hear argument in Skinner v. Switzer, No. 09-9000. The case began with a triple murder — a mother and her two sons in the Texas Panhandle town of Pampa — on New Year’s Eve 1993. The U.S. Court of Appeals for the Fifth Circuit described the murders and some of the subsequent events as follows:

[Hank] Skinner lived with his girlfriend Twila Busby and her two mentally retarded sons, Randy Busby and Elwin Caler. Trial evidence showed that Twila left Skinner passed-out-drunk at home while she attended a New Year’s Eve party from about 10:30 to 11:15 p.m. [She left early because her drunken uncle, Robert Donnell, was making rude sexual advances toward her.] At midnight, a police officer found Elwin on a neighbor’s porch with multiple stab wounds; he died shortly thereafter in the hospital. The police found Twila’s dead body in her living room, where she had been strangled to unconsciousness and beaten with a blunt object at least fourteen times. Randy lay dead in the upper bunk of his bedroom with three stab wounds in his back.

Three hours later, the police located Skinner at the home of an ex-girlfriend, Andrea Reed. Reed testified that Skinner arrived at midnight, appeared intoxicated, threatened to kill her if she called the police, and told her that he had kicked Twila to death. DNA testing showed that blood on Skinner’s clothing belonged to Twila and Elwin, and he had a gash on the palm of his right hand.

Skinner presented evidence that he was too intoxicated, from alcohol and codeine, to have committed the murders. An expert testified that, based on blood-alcohol levels, Skinner should barely have been able to walk, let alone commit three murders. Skinner also argued that Robert Donnell, Twila’s uncle, was the murderer.

Skinner v. Quarterman, 576 F.3d 214, 216 (5th Cir. 2009).1/ But according to the University of Texas law school clinic representing Skinner:

For ten years, Skinner has sought . . . DNA testing on vaginal swabs and fingernail clippings taken from [Twila] Busby at the time of her autopsy, two knives recovered at the home, a hand towel found with one of the knives, a man’s windbreaker jacket found next to Busby’s body, and some human hairs from Busby’s hands. Of these items, only a few of those hairs have been previously DNA tested, and the results of those tests were inconclusive.

After failing to obtain such access though repeated formal and informal requests, as well as two separate state court proceedings under Texas’ post-conviction DNA testing statute, Skinner filed suit against Gray County District Attorney Lynn Switzer in November 2009. Skinner invoked 42 U.S.C. � 1983, alleging that the refusal to grant him access to the evidence under Texas’ DNA testing statute was so arbitrary as to deny due process of law. The district court dismissed Skinner’s lawsuit, and the Fifth Circuit affirmed, both relying on a 2002 decision in which the Fifth Circuit had determined that such an action could proceed only as a habeas corpus petition, not as a civil rights lawsuit.

That legal conclusion, shared by the Fourth Circuit, is at odds with the view of six other federal Courts of Appeals . . . .

Capital Punishment Clinic Heads Back to U.S. Supreme Court for the Fourth Time in Four Years, UT Law.

The issue before the Supreme Court is thus a narrow procedural point. It is whether “”a prisoner’s request for DNA testing of evidence relevant to his prior conviction is ‘so intertwined’ with the merits of the conviction as to require habeas corpus treatment.” Kutzner v. Montgomery County, 303 F.3d 339, 341 (5th Cir. 2002). Skinner already had challenged the state conviction in two federal petitions for a writ of habeas corpus alleging ineffective assistance of counsel and other errors in the state trial. After the federal courts rejected these claims, Skinner turned to the federal civil right statute, 42 U.S.C. � 1983, alleging that the current district attorney, Lynn Switzer, was violating his constitutional rights ‘[b]y refusing to release the biological evidence for testing, and thereby preventing [Skinner] from gaining access to exculpatory evidence that could demonstrate he is not guilty of capital murder.'” J.A. 20-21.

The huge problem with this claim is the Supreme Court’s decision just last year in District Attorney’s Office for Third Judicial Dist. v. Osborne, 129 S.Ct. 2308 (2009). As discussed in a previous posting (The Right to Post-conviction DNA Testing After District Attorney’s Office for the Third Judicial District v. Osborne, Oct. 9, 2009), Osborne held that when other postconviction remedies that might allow a convicted offender to obtain DNA evidence for additional testing had not been pursued, due process does not provide for a free-standing right to DNA testing. Skinner seeks to circumvent this obstacle by arguing that he has the “procedural” due process right to a fair application of the Texas statute allowing postconviction DNA testing. He emphasizes that the federal district court never reached this question because it considered the claim as cognizable only in a habeas action.

Suppose he is right–he may challenge, under � 1983, the state’s refusal to order additional DNA testing as fundamentally unfair. The Supreme Court then should remand the case to allow him to present this challenge to the lower federal courts.

Yet, such a victory could well be pyrrhic. The Texas DNA statute requires “a reasonable probability . . . that he would not have been prosecuted or convicted if the DNA test results were exculpatory,” Tex. Code Crim. Pro. Art. 64(a)(2)(A), and when the desired DNA testing was not undertaken “through no fault of the convicted person, for reasons that are of a nature such that the interests of justice require DNA testing.” Id., Art. 64.01(b)(1)(B). These restrictions seem to be constitutional, and the Texas courts found that Skinner’s petition failed to satisfy the necessary “reasonable probability” and “no fault” conditions. In holding that trial counsel performed adequately, the Fifth Circuit noted that 

counsel explained that he did not request DNA testing of the additional evidence because of the risk that such testing would reveal that the DNA was Skinner’s instead of Donnell’s or some other person’s. Contrary to Skinner’s contention that counsel had “nothing to lose” and “everything to gain” from DNA testing, evidence of Skinner’s DNA, such as on a knife handle or under Twila’s fingernails, would have been highly probative, incriminating evidence for the prosecution.

Skinner v. Quarterman, 528 F.3d 336, 341 (5th Cir. 2008).

This sounds much like Osborne. Osborne’s trial counsel did not press for VNTR testing to provide more definitive results than those that came from the state’s DQA testing because she feared that it would deprive Osborne of the argument that the state’s test was inconclusive. Justice Alito, joined by Justices Kennedy and Thomas, maintained that the belated demand for DNA testing under � 1983 was nothing more than “an attempt to game the system.” They wrote that

When a criminal defendant, for tactical purposes, passes up the opportunity for DNA testing at trial, that defendant, in my judgment, has no constitutional right to demand to perform DNA testing after conviction. Recognition of such a right would allow defendants to play games with the criminal justice system. A guilty defendant could forgo DNA testing at trial for fear that the results would confirm his guilt, and in the hope that the other evidence would be insufficient to persuade the jury to find him guilty. Then, after conviction, with nothing to lose, the defendant could demand DNA testing in the hope that some happy accident-for example, degradation or contamination of the evidence-would provide the basis for seeking postconviction relief. Denying the opportunity for such an attempt to game the criminal justice system should not shock the conscience of the Court.

129 S. Ct. at 2329.


1. An earlier Fifth Circuit opinion elaborates as follows:

In March 1995, a jury convicted Skinner of murdering his girlfriend, Twila Busby, and her two mentally retarded sons, Randy Busby and Elwin Caler, on New Year’s Eve of 1993. Twila, Randy, and Elwin were strangled, bludgeoned, and stabbed in their house shortly before midnight.

At midnight, a police officer found Elwin, in bloodstained undershorts, sitting on the porch of a neighbor’s house with stab wounds under his left arm and on his right hand and stomach. He was taken to a hospital and died shortly thereafter. Investigating Elwin’s stabbing, the police went to the home where he lived with Twila, Randy, and Skinner. The police noticed a trail of blood on the ground running from the front porch to the fence line, a blood smear on the glass storm door, and a knife on the front porch. They found Twila dead on the living room floor. She had been strangled into unconsciousness, then beaten on the head with a blunt object at least fourteen times. A bloodstained axe handle and plastic trash bag containing a knife and bloody towel lay nearby. She exhibited signs of recent sexual intercourse. In a bedroom, officers found Randy dead in an upper bunk. His body was lying face down, and he had been stabbed three times in the back.

On the door frame between the bedroom and a utility room, officers found a bloody hand print roughly two feet above the floor. Bloody prints were also found on the door knob of the door connecting the utility room to the kitchen and on the doorknob of the utility room door opening to the backyard. The prints were Skinner’s.

Suspecting Skinner, the police sought and found him at 3:00 a.m. in the house of Andrea Reed, his former girlfriend, standing in a closet wearing heavily bloodstained jeans and socks and bearing a gash on the palm of his right hand. DNA testing showed that blood on Skinner belonged to Twila and Elwin. Skinner appeared intoxicated, and a toxicology test taken at 5:48 a.m. revealed alcohol and codeine. Skinner was arrested, and in a statement to police he claimed not to recall much of what had transpired that evening.

At trial, the night’s happenings were filled in by others. A friend, Howard Mitchell, went to Twila’s and Skinner’s home around 10:30 p.m. to give them a ride to his New Year’s Eve party. When he arrived, Mitchell found Skinner passed out on the couch, apparently drunk. Unable to wake Skinner, Mitchell left with Twila for the party, where she was followed around by her drunken uncle, Robert Donnell, who made rude sexual advances toward her. Twila quickly became agitated by Donnell and had Mitchell take her back home. Mitchell dropped her off between 11:00 and 11:15 p.m. and left without going inside.

The trail of witnesses runs cold during the fateful hour before midnight but picks up thereafter. At midnight, roughly at the same time the police officer found Elwin, Reed answered a knock at the door of her trailer, which was about four blocks from Skinner’s home. Skinner stood outside the door in blood-soaked shirt and pants and wearing socks but no shoes; he told Reed he had been stabbed and shot. He removed his shirt, but Reed could find no injuries except for the cut on the palm of his hand, which she bandaged for him. Skinner stayed with Reed for roughly three hours until the police arrived to apprehend him.

Reed testified that Skinner appeared intoxicated and disoriented and made many inconsistent statements about the causes of his injury and the course of events. Reed tried to call police, but Skinner threatened to kill her if she did. Skinner eventually offered to tell Reed what really had happened if she would promise not to tell anyone; she promised, and Skinner told her he thought he had kicked Twila to death. In a later statement to police, he claimed he woke up on the couch to find someone standing over him with a knife and that he ran out of the house. He also guessed that Twila might have killed her sons and cut him with a knife, but he claimed not to remember plainly.

At trial, Skinner sought first to show that, because of intoxication, he could not physically have committed the murders. An occupational therapist testified that an injury had deprived Skinner of the hand strength that would have been necessary to strangle Twila in the manner described by the medical examiner. A toxicologist testified that the alcohol and codeine in Skinner’s system would have put him in a stupor, and he would not have had the physical coordination to overpower and inflict wounds on the three victims. In rebuttal, the prosecution suggested that Skinner’s long history of drug and alcohol abuse gave him more tolerance for the substances than an average person would have, so he had a greater ability to function under the influence.

Skinner also suggested that Donnell was the murderer. Skinner presented evidence that Donnell was violent and hot-tempered. On the night of the murder, he was seen drunkenly harassing Twila at the party, and Mitchell claimed that Donnell had “a certain kind of hate” in his eyes. Mitchell also reported that when he returned to the party after driving Twila home, Donnell was no longer there. The defense, however, introduced no physical evidence indicating that anyone besides Skinner and the victims had been in the house at the time of the murder. See Skinner v. State, 956 S.W.2d 532, 536-37 (Tex.Crim.App.1997) (reviewing sufficiency of the evidence).

Skinner v. Quarterman, 528 F.3d 336, 339-40 (5th Cir. 2008) (footnote omitted).


Merit briefs

Amicus briefs

Oral argument

The Right to Post-conviction DNA Testing After District Attorney’s Office for the Third Judicial District v. Osborne

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.

A Quick Tour of the Case

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.

Quibbles, Quirks, and a New Justice

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.


Facts, Procedure, and Methods of DNA Testing in Osborne
(written November 7, 2008)

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.


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.)