Due process and DNA in Alaska

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During the debate over the verdict in O.J. Simpson’s murder trial in 1995, one of Simpson’s defenders said: “I don’t believe in DNA.” Today, the value of DNA evidence is beyond dispute -- which is why 44 states allow convicted defendants to petition for DNA tests that might prove their innocence. If the constitutional guarantee of due process of law is to mean anything, the Supreme Court must order the recalcitrant states to join the 21st century.

This week, the justices said they would review the case of William G. Osborne, who was imprisoned for 10 years in Alaska after being convicted in 1994 of kidnapping and raping a prostitute. Osborne filed suit in federal court seeking to subject evidence in the case to more sophisticated DNA testing not available to him when he was prosecuted.

The San Francisco-based U.S. 9th Circuit Court of Appeals ruled for Osborne, declaring that he had a federal constitutional right to such testing even if he didn’t meet other standards in the law for asserting his innocence after conviction. The administration of Alaska Gov. Sarah Palin wants the Supreme Court to reverse that decision. It should decline the invitation.


In concluding in 2005 that executing juveniles violates the 8th Amendment prohibition of cruel and unusual punishment, the high court took inventory of the large number of states that refused to impose the ultimate punishment on minors. A similar survey of the states should lead the court to rule in favor of Osborne’s claim that preventing him from obtaining DNA information that might establish his innocence violates his right to due process of law.

Courts often must struggle with whether scientific evidence is reliable or inconclusive “junk science.” No such agonizing is appropriate in the case of DNA evidence. With a high probability bordering on certainty when it comes to eliminating suspects, DNA analysis has transformed the search for truth in many criminal trials, and in the civil justice system as well. (Defense lawyers who once made their living contesting paternity suits have had to add other specialties because DNA testing is so much more conclusive than old-style blood tests.)

The argument against establishing prisoners’ access to DNA evidence as a federal constitutional right is that it would burden the courts with frivolous litigation. Osborne’s lawyers dismiss that notion, observing that no more than 10% of felonies involve evidence that could be subjected to DNA testing. Another refutation of the “floodgates” argument is the experience of the 44 states that do permit post-conviction DNA testing. The Supreme Court should order Alaska and the other holdouts to do the same.