U. S. Supreme Court Rules That A Defendant Has NO Constitutional Right To Post Conviction Access To State Evidence For DNA Testing.

The case is DISTRICT ATTORNEY’S OFFICE FOR THE THIRD JUDICIAL DISTRICT ET AL. v. OSBORNE, No. 08-06 (2009).

You can read the opinion here.

"Respondent Osborne was convicted of sexual assault and other crimes in state court. Years later, he filed this suit under 42 U. S. C. §1983, claiming he had a due process right to access the evidence used against him in order to subject it to DNA testing at his own expense."

The Supreme Court, in its 5 to 4 decision authored by Chief Justice John Roberts, reversed the holding of the Appeals Court, and held instead that "[a]ssuming Osborne’s claims can be pursued using §1983, he has no constitutional right to obtain post conviction access to the State’s evidence for DNA testing."

Continuing, the court observed that "[e]stablishing a freestanding right to access DNA evidence for testing would force us to act as policymakers,and our substantive-due-process rule making authority would not only have to cover the right of access but a myriad of other issues."

I particularly like Justice Samuel Alito's concurrence:

"I agree with the Court’s resolution of respondent’s constitutional claim. In my view, that claim also fails for two independent reasons beyond those given by the majority. First, a state prisoner asserting a federal constitutional right to perform such testing must file a petition for a writof habeas corpus, not an action under 42 U. S. C. §1983, as respondent did here, and thus must exhaust state reme-dies, see 28 U. S. C. §2254(b)(1)(A). Second, even though respondent did not exhaust his state remedies, his claim may be rejected on the merits, see §2254(b)(2), because a defendant who declines the opportunity to perform DNA testing at trial for tactical reasons [as Defendant in this case did] has no constitutional right to perform such testing after conviction."

Read more of Justice Alito's persuasively well reasoned concurring opinion, in which the other Conservative Justices, including Moderate Antony Kennedy.

As for the dissent, they picked the wrong case and set of facts to try to persuade that:

"Standing alone, the inadequacy of each of the State’s reasons for denying Osborne access to the DNA evidence he seeks would not make out a due process violation. But taken as a whole the record convinces me that, while Alaska has created an entitlement of access to DNA evidence under conditions that are facially reasonable, the State has demonstrated a combination of inattentiveness and intransigence in applying those conditions that add up to procedural unfairness that violates the Due Process Clause."