Oral argument: Mar. 2, 2009
Appealed from: United States Court of Appeals, Ninth Circuit (April 2, 2008)
In 1994, William Osborne was convicted of kidnapping, first-degree sexual assault and first-degree assault by a jury in an Alaska trial court. After losing his appeal and being denied the opportunity in Alaska state court to retest the evidence, Osborne filed a federal lawsuit under 42 U.S.C. § 1983, which protects against the deprivation of any rights, privileges, or immunities secured by the Constitution and laws. Osborne claimed that under the Due Process Clause of the Fourteenth Amendment, he was entitled to retest the DNA at his own expense with a new method of testing that had been unavailable at trial, but that could conclusively establish his guilt or innocence. Osborne filed the federal suit to try and gain access to the evidence while his state post-conviction proceedings were still pending. His application for post-conviction relief in state court was subsequently denied. The questions before the Supreme Court are (1) whether a § 1983 claim for evidence can be brought without also bringing the substantive claim for which the evidence would be used, and (2) whether Due Process entitles a prisoner to post-conviction access to evidence for previously unavailable testing.
Question(s) presented
1. May Osborne use § 1983 as a discovery device for obtaining post-conviction access to the state's biological evidence when he has no pending substantive claim for which that evidence would be material?
2. Does Osborne have a right under the Fourteenth Amendment's Due Process Clause to obtain post-conviction access to the state's biological evidence when the claim he intends to assert- a freestanding claim of innocence- is not legally cognizable?
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Issue(s)
Whether the Due Process Clause entitles a prisoner to post-conviction access to evidence in order to run additional tests that were not available at the time of trial, and whether that prisoner may use § 1983 to bring a federal claim for that evidence without also having to bring the underlying substantive claim for which he intends to use the evidence.
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Facts
In March of 1993, William Osborne and Dexter Jackson allegedly hired a prostitute named K.G. to perform fellatio on them. Osborne and Jackson drove K.G. to a secluded area where they brutally attacked her and Osborne raped her, while wearing a blue condom, at gunpoint. Afterwards, as K.G. attempted to flee, the two men chased after her and beat her in the head with an axe handle. K.G. then lay in the snow and played dead, at which point Osborne shot a gun at her, but the bullet narrowly missed, grazing her head. Osborne and Jackson then left her for dead. After being sure they had left, K.G. got up and flagged down a passing car for a ride home. She told the car's passengers what had happened, but did not want the police to get involved and insisted on being taken home.
The next day, one of the passenger's neighbors called the police about the incident. K.G. was examined, and hair and blood samples were collected during her physical examination. When the police went to the crime scene, they recovered a spent shell casing and a used blue condom. A week later, police arrested Jackson during a traffic stop after finding a gun in his glove compartment, which was later determined to be the same gun that had fired the spent shell casing found at the crime scene. K.G. identified Osborne in a police photo lineup as being the "most familiar" and "most likely" to have raped her. However, Osborne later unsuccessfully asserted a mistaken identity defense at trial, pointing out that this was a cross-racial identification since K.G. was white and Osborne was black.
The State's crime lab tested the sperm found in the blue condom using a relatively non-discriminating "DQ Alpha" DNA test. See Although the DNA test resulted in a match with Osborne, roughly fifteen percent of all African Americans would also have fit the match. Osborne's lawyer strategically decided not to send the sample in for a more precise RFLP DNA testing, as she did not believe in Osborne's innocence and determined that the RFLP DNA test would only confirm his guilt.
At Alaska trial court in 1994, the jury convicted Osborne of kidnapping, first-degree assault, and two counts of first-degree sexual assault, and sentenced him to twenty-six years imprisonment with five years suspended. Osborne's conviction was confirmed on direct appeal to the Alaska Court of Appeals. The Alaska Superior court subsequently denied his application for post-conviction relief, in which Osborne had presented two arguments: that his trial lawyer had been ineffective for not pursuing the more discriminating RFLP DNA testing, and that he had either a state or federal due process right to new DNA testing that had not been available at the time of his trial. Osborne then appealed to the Alaska Court of Appeals, which held that his assigned counsel had made a legitimate tactical decision, but remanded his case, stating that he might have a due process claim under the Alaska Constitution. Later, on remand, the Alaska Superior Court held that Osborne failed to satisfy the test for whether he had a right under the Alaska state Constitution to retest the DNA.
While his remanded case was still pending on the state level, Osborne also filed a claim under 42 U.S.C. § 1983 in federal district court, claiming that Alaska had denied him his federal constitutional right to post-conviction access to evidence for DNA testing. Osborne argued that he had a right to retest the DNA from the blue condom using more accurate and discriminating DNA tests that were not available at the time of his trial. The District Court dismissed his § 1983 action, stating that he must bring this claim under a writ of habeas corpus. The Ninth Circuit Court of Appeals reversed and remanded again, stating that Osborne was not precluded from proceeding under § 1983. This time, the District Court ruled in Osborne's favor. The Ninth Circuit Court of Appeals affirmed the District Court's decision and held that Osborne has a limited U.S. Constitutional due process right. .
The District Attorney's Office appealed, and the United States Supreme Court granted certiorari on November 3, 2008 to decide whether Osborne may use § 1983 as a discovery device to seek post-conviction access to biological evidence for the purpose of new DNA testing, and whether there is a Fourteenth Amendment due process right to do so.
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Discussion
Can a state prisoner bring a claim under 42 U.S.C. § 1983 seeking post-conviction access to evidence for DNA testing? Does the Due Process Clause of the Fourteenth Amendment entitle a state prisoner to retest evidence using previously unavailable DNA testing?
Petitioner the District Attorney's Office ("DAO") argues that Osborne cannot seek post-conviction access to evidence for further DNA testing under 42 U.S.C. § 1983, but instead must bring such a claim in a habeas corpus petition. The DAO further argues that Osborne is not entitled to simply gather evidence in order to challenge his guilty verdict, and that all of his federal due process rights have been more than fulfilled already. Respondent William Osborne, however, argues that he may make his claim for post-conviction access to evidence under § 1983. He further argues that he has not been afforded all of his due process rights, partly because Alaska has no mechanisms in place for any post-conviction DNA testing, and thus is entitled to post-conviction access to evidence for new DNA testing as a due process right.
Amici the City of New York (the "City") is concerned that allowing convicted criminals to use § 1983 to pursue further DNA testing on evidence after being convicted could lead to abuse of the court system. The City argues that a decision in favor of Osborne would encourage a criminal defendant to choose not to introduce potentially damaging DNA evidence at trial, in the hopes that he would be acquitted without it. Then, if he is convicted, he could have another chance to overturn his conviction by then re-testing the evidence for DNA post-conviction. Other amici further argue that most criminals pursuing further DNA testing under § 1983 would only be doing so to get a "second bite at the apple" in front of a different judge. Amici contend that a convicted criminal should not be able to re-litigate their competently completed state claims all over again in federal courts.
Moreover, the thirty-one amici states supporting the DAO also argue that allowing post-conviction DNA testing through § 1983 would cause convicted criminals with unmerited claims to flood the courts and petition for further DNA testing in the hopes that they might be exonerated. They claim that states already have important safeguards in place concerning post-conviction DNA testing to allow only truly meritorious claims. As a result, amici argue, a decision against the DAO would open disrupt these safeguards and open these floodgates, which would result in wasting federal resources such as time and money.
In response, the former and current prosecutors amici argue that allowing the DNA testing here would cause but a minimal burden on the courts. Other amici point out that the DNA evidence here is easily obtainable, and argue that it would be unfair to allow the state to conduct further testing on the evidence at any time against Osborne if he seeks clemency, but not to allow Osborne to the same further testing to try and prove his innocence. In addition, the Justice Project argues that the vast majority of criminal cases do not concern any biological evidence for which DNA testing would necessarily be useful. Consequently, the potential pool of criminals that would rush to "flood" the courts with post-conviction DNA testing petitions after a favorable decision for Osborne would actually be constricted to a relatively small number.
The Justice Project also argues in favor of Osborne that although most states do have laws addressing post-conviction DNA testing, many of these laws are ineffective. The Justice Project points out that these state laws tend to be very narrow and preclude too many deserving appellants from access to post-conviction DNA testing. Furthermore, the Justice Project argues, states typically do not provide adequate counsel for criminals seeking post-conviction DNA testing, which only exacerbates this misbalance of access to potentially exonerating DNA evidence. Finally, amici prosecutors add that the current filters in most states are nothing more than arbitrary lines, and "arbitrary line-drawing tends to exclude truly meritorious cases from DNA testing."
Analysis
Can a § 1983 Claim be Brought to Obtain Access to Evidence?
Petitioner the District Attorney's Office ("DAO") argues that a § 1983 claim is improper in this case because Respondent William Osborne is using it as a crafty way to attack a state conviction in federal court. . The DAO contends that Osborne is attempting to gain access to the evidence in order to prove his innocence and should therefore be required to use either a federal habeas petition or state post-conviction relief (which has already been denied). In support of this, the DAO points to in which the Supreme Court declared that claims which ultimately challenge confinement must be brought in habeas. ). Habeas petitions "bring a prisoner before the court to determine if the person's detention is lawful" and "routinely allow[] prisoners to introduce exculpatory evidence that was either unknown or previously unavailable to the prisoner." . The DAO stresses that since this is precisely what Osborne is trying to do, he should use the proper avenue that has been established.
The DAO also argues against the validity of the § 1983 claim by pointing to which held that if proving a claim for damages would imply that the underlying state conviction was invalid, then the damage claim could not be brought until the underlying conviction was invalidated in a federal habeas action or appropriate state proceeding. According to the DAO, since Osborne is hoping that the results of his claim will show his innocence, the claim should be barred by Heck. Even though technically Osborne's claim would only grant him access to the evidence, the DAO contends that Osborne would then use that to bring a second action to invalidate the conviction, and that the Court should not tolerate this sort of piecemeal litigation.
On the other hand, Osborne argues that while it is true that the Supreme Court held in Preiser that if the habeas statute applies then it is the exclusive remedy, in this case it is unclear whether access to evidence could properly be asserted as the basis for a habeas petition. Furthermore, even if he could seek relief in habeas, habeas petitions have no entitlement to discovery, meaning that he might still have to bring a § 1983 claim in order to get access to the evidence. Osborne also points out that contrary to the DAO's assumption that he would use the access to evidence claim to file a subsequent claim, it is actually more likely "given the unsettled state of the law concerning freestanding claims of actual innocence" that he would instead pursue post-conviction relief. . This, Osborne argues, means that the § 1983 action for access would be completely independent and not part of any artful pleading. .
In addition, Osborne states that the Ninth Circuit was correct to hold that Heck does not apply to bar his access of evidence claim, because a successful claim would not necessarily mean that his conviction would be overturned. He stresses that after being granted access to the evidence, he would still have to actually test the DNA, achieve a positive result and succeed in a separate claim before he could receive relief from his conviction. Osborne points out that the Supreme Court has already stated that attenuated circumstances like this are not governed by Heck. Osborne notes further that there is always the possibility that the test would not even come out in his favor.
Due Process
Brady v. Maryland holds that suppressing material exculpatory evidence violates due process. Osborne disagrees with the DAO's argument that due process cannot be extended to post-conviction. Osborne focuses instead on the motivating principles underlying the decision, namely the prosecutor's obligation to do justice, and reasons that the decision really stands for the guarantee of a fair process. He argues that the state court's refusal to permit him access to evidence after conceding that it might prove his innocence was a due process violation because it ran contrary to the court's duty to seek justice. Specifically, Osborne argues that since DNA testing of the evidence is probably the only way for him to obtain relief, due process requires that he be granted meaningful access to it. . Osborne further contends that the court's decision was arbitrary and that substantive due process is intended to protect "against arbitrary action of the government."
The DAO, on the other hand, stresses that "the rationale of Brady is to ensure that the defendant receives a fair trial." The DAO argues that here, because the courts determined that Osborne received a fair trial and competent representation, Brady does not apply. The DAO also contends that Osborne never had due process rights to the evidence in the first place because the right to evidence only extends to evidence which is material to the substantive claim, and Osborne never made a substantive claim. The DAO continues by pointing out that even if Osborne had made the substantive claim of innocence, the Supreme Court has twice refused to recognize a federal right to assert a freestanding actual innocence claim and that without this underlying substantive claim, there is no right to discovery. Moreover, the DAO stresses that due process does not require that "every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person," but rather that it allows for reasonable limitations to ensure the appropriate balance between finality and justice.
Federal Interference or Enforcement?
States are not required by the Constitution to provide specific post-conviction remedies and instead are granted wide discretion in establishing post-conviction review. Given this, the DAO argues that it would be inappropriate to allow the federal court to interfere and force discovery. . Specifically, the DAO contends that state courts should determine what discovery is available. . The DAO argues that since Alaska courts already had a procedure in place for defendants to obtain post-conviction access to evidence, the Ninth Circuit had no right to interfere. The DAO further points out that the Ninth Circuit's ruling is dangerous because it grants prisoners a federal constitutional right to reopen cases merely by asserting that new technology might establish their innocence. . This, the DAO argues, would leave "perfectly valid judgments in a perpetually unsettled state." ).
In contrast, Osborne argues that while it is true that states are not required to provide specific post-conviction relief, the procedures that they choose to employ must satisfy due process. . According to Osborne, this means that the relief must include meaningful access to the evidence necessary to prove the claim. Osborne also points out that the Ninth Circuit's decision to find a federal right to evidence was not an interference of state criminal procedure, because he was not challenging the process by which he was convicted but rather a subsequent decision by the government regarding access to evidence. . In addition, he states that "failure to permit access to evidence for DNA testing offends the core objective of our criminal justice system: namely, that ‘the guilty be convicted and the innocent go free.'" According to Osborne, the criminal justice system should be primarily concerned with achieving justice even at the expense of finality.
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Conclusion
Many jurisdictions choose to grant post-conviction access to evidence. In this case, the Supreme Court may decide whether there is a constitutionally protected right to that access which would allow prisoners to bring claims in federal court after being denied in state court, or if this is something to be left to the state courts without any federal court interference. Consequently, the Court may balance the needs for finality and efficiency with those of justice and truth seeking. In addition, the Court's decision will determine whether evidence can be retested, if new technology is available which may conclusively determine the guilt or innocence of a prisoner, and the prisoner is willing to incur the expense of retesting.
Authors
Prepared by: Kelly Terranova and Isaac Lindbloom
Edited by: Hana Bae
Additional Sources
- Electronic Privacy Information Center- Post-conviction access to genetic evidence
- Science and Law Blog: Osborne and the Right to Post-conviction DNA Testing
- Do Convicts Have a Constitutional Right to Access Crime-Scene DNA?
- Access to Post-conviction DNA Testing
- LII Wex: Due Process
- LII Wex: Actual Innocence
- Habeas Corpus
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