Guest Shot: Obama's Testing Test by William Sessions

The following opinion by William Sessions was originally published in Slate Magazine on February 27, 2009.

Obama's Testing Test
Why is the Justice Department on the wrong side of a Supreme Court case about DNA evidence?
By William S. Sessions

Posted Friday, Feb. 27, 2009
On Monday, the Supreme Court will hear a case about whether the Constitution's due process clause requires Alaska to turn over DNA evidence to William Osborne, who was sentenced to 26 years in prison for kidnapping and sexual assault. Alaska prosecutors do not dispute that advanced DNA testing could prove Osborne's innocence beyond any doubt. But for nearly a decade, they've refused to allow him to do this testing.

To my great disappointment, recent news reports indicate that the Obama Justice Department has decided not to reverse the Bush administration's decision to weigh in on Alaska's side in the case, District Attorney's Office for the Third Judicial District v. Osborne. As has been said many times, the Justice Department's mission is to do justice. It is not to seek a conviction—or to uphold one—at all costs.

What interest does Alaska have in denying Osborne access to this evidence, thus obscuring the truth? He has offered to pay for the testing, so the state will incur no financial cost. In any case, federal money is available to help pay for testing for those who cannot afford it. Osborne did not willfully bypass advanced DNA testing when he was tried 14 years ago; the sophisticated testing he requests did not exist then.

Alaska's primary argument is that testing is unnecessary because non-DNA evidence demonstrates Osborne's likely guilt. But the victim's physical description of her attacker was tentative, differing in key respects from Osborne. And other cases have repeatedly demonstrated that this other evidence will amount to nothing if the DNA excludes Osborne and could even be matched to a convicted felon already in the system.

As I know from experience, law enforcement's predictions about a defendant's likely guilt are no substitute for actually performing a DNA test.

When I became FBI director in 1987, the bureau established a DNA laboratory we hoped would be used to verify that a suspect had indeed committed a crime. During my years as a U.S. attorney and federal judge in Texas, rapists and murderers sometimes walked free for lack of biological evidence. I had these cases in mind when we established the laboratory in Washington, D.C.

The results of the first 100 tests in 1988 astonished me. In three out of 10 cases, not only did we have the wrong person, but the guilty person was still at large. Many of them were unidentified and dangerous. DNA testing overall has produced dramatic results, exonerating a total of 232 people, including 17 on death row.

Alaska argues that a constitutional rule mandating that defendants get access to DNA after their convictions will prevent states from coming up with their own rules for handling this evidence. It's true that some states and the federal government do allow post-conviction access to DNA evidence. But as important, some narrowly circumscribe such access, and six, including Alaska, provide no statutory right to it at all.

Alaska contends that evidence of innocence does not, by itself, matter once a person has been convicted, or if the trial was free of constitutional and other defects. That goes too far in elevating the principle of finality over basic justice.

It's a generally laudatory goal for a new president to continue the DoJ polices of the previous one when he takes office. But a change in position may be warranted in some cases. Osborne is one of them. The Justice Department's decision is particularly perplexing because when President Obama was an Illinois state senator, he responded to that state's wrongful conviction problem by leading a bipartisan effort to help prevent convictions of the innocent, including laws allowing access to DNA evidence.

Evidence of innocence does—and must—matter to all of us, whenever it is presented. I have no idea whether Osborne is guilty. If the DNA shows that he is, so be it. But what if it shows he is not? Wouldn't victims of crime want to know if the wrong person is imprisoned, and the real perpetrator is still on the streets, free to commit more crimes? Wouldn't all of us want to know this?

Former Attorney General John Ashcroft has called DNA the "truth machine of law enforcement." Why should our criminal justice system be afraid of that truth machine? There is still time for the new administration to reverse course before next Monday's argument. I hope it will.

William S. Sessions, now a partner at the law firm Holland and Knight, directed the FBI from 1987 to 1993. Previously, he served as a federal judge and U.S. attorney in Texas.