Guest Shot: DNA tests should be available to prisoners

The following opinion was published in the Philadelphia Inquirer on June 25, 2009.

DNA tests should be available to prisoners
Confirming innocence or guilt is the right of all who claim to be falsely accused.

By Marissa Bluestine and David Rudovsky

Chief Justice John Roberts began last week's opinion in District Attorney's Office of the Third Judicial District v. Osborne by noting: "DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty." But the ruling by Roberts and four other Supreme Court justices ultimately showed little regard for DNA's power to undo injustice.

In 1993, an Alaska court convicted William Osborne of kidnapping, assault, and sexual assault. On appeal, Osborne requested newly available DNA testing that, everyone agreed, would show definitively whether he was guilty. He also offered to pay for the testing. But the district attorney, without giving a reason, refused to turn over the DNA evidence.

A federal district court ruled that, as a matter of due process, Osborne was entitled to the evidence, and an appeals court agreed. However, the Supreme Court ruled that no such right exists after conviction, and that each state can decide when and under what circumstances a convicted defendant may have access to DNA evidence.

The Supreme Court's willingness to turn a blind eye to wrongly convicted prisoners is troubling - particularly in light of the 240 exonerations through DNA since 1989. As Justice John Paul Stevens noted in his dissent, Alaska never gave a reason for its refusal other than a need for "finality." Stevens called that position "arbitrary."

The court's majority opinion failed to answer the same question: Why, when an inmate has professed his innocence, repeatedly requested such testing since his trial, and agreed to cover all the associated costs, would a prosecutor not provide the evidence? Why, especially, when the test could conclusively prove that he committed the crime?

And if Osborne is in fact proved innocent and the DNA could identify the actual rapist, why is there not an overwhelming societal interest in providing the evidence for testing?

Unfortunately, many prosecutors have aggressively blocked prisoners seeking post-conviction DNA testing. According to a recent New York Times report, the reasons for the denials have included "overwhelming" eyewitness testimony (even though 75 percent of those exonerated by DNA were wrongly convicted based on eyewitness testimony), the purported statistical insignificance of the number of exonerations, and - the most often-cited reason - the need for "finality" in the criminal-justice system.

In response, most states, including Pennsylvania, have passed laws providing post-conviction access to DNA evidence. But many of these statutes are too narrowly framed to ensure sufficient access to DNA testing.

There is no doubt that the paramount aim of the criminal-justice system - to convict the guilty and free the innocent - is promoted by full access to DNA evidence. Incarcerating someone who had nothing to do with a crime does not benefit the victim. Nor does it benefit the victims who have suffered because a true perpetrator was never convicted and was able to commit more crimes - as has happened in the cases of at least 43 percent of the DNA exonerations to date.

When an inmate makes a credible claim of innocence, and when the DNA evidence will be able to conclusively establish the identity of the perpetrator, a genuine interest in "finality" should mean finally and conclusively identifying the true perpetrator.

While the ultimate impact of the Osborne decision is uncertain, its effect on potentially innocent men and women locked away for things they did not do is devastating. Peter Neufeld, a co-director of the Innocence Project in New York, which represented Osborne, has said, "As a result of this decision, more innocent people will languish in prison, and some may die in prison, because they were prevented from proving their innocence."

The Osborne ruling represents a betrayal of our society's core values. In Pennsylvania, the legislature and the courts should make sure that innocent inmates are not denied access to the evidence needed "to exonerate the wrongly convicted and to identify the guilty."



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Marissa Bluestine is legal director of the Pennsylvania Innocence Project. David Rudovsky is vice president of its board. They can be contacted at mbluestine@temple.edu and drudovsky@krlawphila.com.