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Obama Administration Contends Prisoner Has No Right to DNA Testing

By David C. Fathi

DNA testing is a uniquely powerful crime-solving tool. Testing crime scene evidence using new and advanced techniques has solved many previously unsolved crimes, leading to the arrest and conviction of rapists and other violent criminals. Just as important, DNA testing has exonerated at least 232 innocent persons who had been wrongly convicted, including 17 who had been sentenced to death for crimes they didn't commit.

For these reasons, John Ashcroft, Attorney General in the George W. Bush administration, has called DNA testing "the truth machine of law enforcement, ensuring justice by identifying the guilty and exonerating the innocent." But on Monday, a lawyer for the Obama administration will argue in the Supreme Court that a prisoner who claims he is innocent has no constitutional right to have DNA from the crime scene tested -- even if he is willing to pay the costs himself.

In fairness, the Obama Justice Department inherited this case from the Bush administration, which filed a brief supporting the prosecution less than three weeks before leaving office. But lawyers for the prisoner, William G. Osborne, asked the new administration to change its position in the case, as it is entitled to do, and it declined.

Osborne was convicted of sexual assault and kidnapping in a brutal 1993 attack on a woman in Anchorage, and sentenced to 26 years in prison. He says he is innocent, and has sought for years to have a semen sample from the crime scene tested with DNA techniques that were not available at the time of his trial, offering to pay the testing costs himself. But Alaska is one of six states that have no law allowing for post-conviction DNA testing, and the prosecution has steadfastly refused to consent. Osborne filed suit, and a federal appeals court agreed that he is entitled to DNA testing of the crime scene evidence. The prosecution appealed, and on Monday the Supreme Court will hear the prosecution's appeal of that decision.

One has to wonder why the prosecution has fought this case all the way to the Supreme Court. After all, if DNA testing implicates Osborne, the state will have additional and compelling proof of his guilt. If, on the other hand, testing excludes Osborne as the assailant -- and the prosecution concedes that a favorable test result would conclusively establish his innocence -- then a grave injustice can be corrected. In addition, the test results may allow law enforcement to identify the real assailant, who may still be at large. In either case, the truth-seeking function of the justice system will be served.

The Obama administration's decision to adhere to the Bush position in this case is disappointing to those who had hoped for greater sensitivity to the very real problem of wrongful convictions. As a state senator in Illinois, Obama strongly supported efforts to reform the state's broken death penalty system, championing a law that aimed to reduce false or coerced confessions by requiring police interrogations to be videotaped. And in a 1999 article cited on the Obama-Biden campaign website, Obama specifically called for greater access to DNA testing for defendants in capital cases "to make sure you've got the right person."

Osborne's request for DNA testing is supported by US treaty obligations. The International Covenant on Civil and Political Rights, a treaty ratified by the United States in 1992, says that anyone convicted of a crime has the right to have that conviction reviewed by a higher court; it also provides that persons found to be wrongly convicted are entitled to compensation. These rights cannot meaningfully be respected if a prisoner who claims to be wrongly convicted is denied access to evidence that could conclusively establish his innocence.

The collection of DNA samples from unwilling persons -- particularly those, like arrestees, who have not been convicted of any crime -- raises serious privacy concerns. But those issues aren't involved in this case. All Osborne asks is to have DNA evidence left at the crime scene tested and compared with his own DNA. The only interest the prosecution asserts in defense of its refusal to allow testing is its interest in the "finality" of Osborne's conviction. But DNA testing would undermine that finality only if Osborne is innocent. It is hard to discern the public interest in the finality of a proceeding that leaves an innocent man in prison and a rapist possibly still walking free.

The Bush administration argued in its brief -- now effectively adopted by the Obama administration -- that the decision about whether to allow DNA testing should be left up to the states as part of a "vibrant democratic process." But some things shouldn't be put up for a vote -- and the liberty of a possibly innocent person is one of them.

Originally posted on; appears on with author's permission.

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