The Supreme Court’s ruling in Osborne is the biggest news of the last few days and has been covered left and right. Here is a list of other outlets that have chimed in:

The New York Times: Editorial: Unparalleled and Denied.

The Los Angeles Times: Supreme Court rules DNA tests for prisoners not a constitutional right.

The Washington Post: Court Limits Access to DNA Evidence: Justices Rule That Inmates Lack Constitutional Right to Testing

The Christian Science Monitor: What impact will Supreme Court decision on DNA evidence have?

The Associated Press: Court finds convicts have no right to test DNA

Reason: Supreme Court Says No Right to Post-Conviction DNA Testing

SCOTUSblog: Analysis: Handing off the DNA issue

Change.org: The Supreme Court Denies The Right to DNA Testing

The Innocence Project in New York: A Disappointing Decision and a Renewed Call for Reform

I was about to walk into a prison for a legal visit yesterday when Ryan texted me the news that the Supreme Court of the United States overturned the 9th Circuit and held in Osborne that inmates do not have a constitutional right to postconviction access to DNA testing.

Certainly this is a disappointing decision on a number of levels:

1.  As demonstrated in so many cases as of late, the very existence of constitutional rights is generally in the hands of one Supreme Court Justice and this could just as easily have tipped the other way if the the makeup of the court was slightly different.  This notion is proof positive that our constitutional rights are fragile at best and that if we want them preserved, we better elect better leaders.

2.  The Court failed to recognize, as they often do,  a number of realities inherent in criminal proceedings.

• First, they seemed obsessed with this idea that Osborne could have had more advanced testing pre-trial and failed to procure it.  The Court ignored (or in Alito’s case was just unreasonably skeptical of) the clear and undisputed fact that Mr. Osborne begged his lawyer for the additional testing after the first round of primitive pre-trial testing was inconclusive. Yet his counsel chose not to do it because she thought he may be guilty.  Of course, defense lawyers have argued all sorts of defenses, such as self-defense and insanity, at trial because they thought that was what was best for their client at that time, only for the client to prove his innocence many years later through post-conviction DNA testing.  Just as prosecutors, judges and juries get it wrong, so to do defense attorneys.  Thus, we shouldn’t give their “gut feeling” any additional credibility.
• Second, experts have testified that the testing that Osborne pleaded for before trial, RFLP, would have been unlikely to achieve a result because the sample was degraded even at that time.  We have come a long way with DNA testing methods able to achieve results on smaller, older,  more degraded, and even mixed samples.  IPF has gotten DNA results at private laboratories in cases over 30 years old.  Had testing been performed in this case using the most advanced methods now available to the scientific community, I have no doubt that they would have at least been well-positioned to get a result that could either disprove or confirm Osborne’s guilt.
• Third, the Court was also stuck on this fact that Osborne had confessed after trial.  But this wasn’t just any confession.  He admitted guilt as a means to get out of prison on parole.  In order to get paroled in most states, you have to admit guilt and show remorse, among other things.  Thus, such an action is completely at odds with folks who are wrongfully convicted.  It is understandable that an innocent individual would refuse to plea to a crime they didn’t commit, because of pride and because of faith in the justice system to not railroad them.  But is it equally understandable that an innocent person, realizing that they may die in prison, would opt to swallow their pride and falsely admit guilt in order to be die a free man.  If the DNA testing can prove such a person innocent, than we should do it irrespective of such a confession.  If it does and the State wants to prosecute them for perjury in the parole proceeding, then we should let the State bear the burden of the political shitstorm that would result from revictimizing someone who they wrongfully incarcerated.

3.  Had the Court recognized a constitutional right to postconviction access to DNA testing here, it would have, in theory, expanded the access that imprisoned Floridians already have under Florida law.  It likely would have allowed IPF to cut through some of the tired methods the State uses to frustrate or prevent DNA testing that most inmates are entitled to under the law.  Obviously, it would have made our lives and the lives of our clients a bit easier.

The reality is, however, that yesterday’s decision has little effect on us here in Florida.  Attorney General Holder (who has been wildly diappointing on so many fronts thus far) does make a good point:

But today’s decision is limited: the Court merely spoke about what is constitutional, not what is good policy. And there is a fundamental difference. Constitutional rights are only one part of a fair and full system of justice. Simply because a course of action is constitutional does not make it wise. Nothing in today’s decision detracts from the unique power of DNA; indeed, the first line of today’s Court opinion emphasized that ‘DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty.’ DNA testing helps ensure that justice is done.”For that reason, this administration believes that defendants should be permitted access to DNA evidence in a range of circumstances. In the 2004 Innocence Protection Act, Congress guaranteed access to DNA evidence held by the federal government under specific conditions, and made money available to encourage states to do the same. Today’s decision reaffirmed the power of such practices, and I hope that in light of today’s decision all levels of government will follow the federal government’s lead by working to expand access to DNA evidence.”

Florida has a decent postconviction DNA testing statute that allows an inmate to request such testing at any time (in most instances) and even in most case cases where the inmate pled to the crime, if the inmate can satisfy certain requirements.  Peter Neufeld, co-founder ofThe Innocence Project and who argued Osborne in the Supreme Court, echos my sentiment.

But what about the people, like Mr. Osborne, in the remaining three states of Alaska, Massachusetts, and Oklahoma who may be innocent with no way to prove it because these states are the lone holdouts without a postconviction DNA testing statute?  How many DNA exonerations do we need before legislatures in these states take off the blinders and quit being willfully ignorant to the fact that they are the recalcitrant minority in this country?  It is particularly bad considering that Massachusetts has had 9 DNA exonerees, while Oklahoma has had 10.

I guess we will have to cross our fingers and hope they will eventually do the right thing.  I won’t hold my breath.