So let's put Thursday's DNA ruling into context. Yes, it's true. A sharply-divided Court refused to recognize a constitutional right to DNA testing following a conviction. "Swing" Justice Anthony M. Kennedy swung this time with his conservative brethren and Chief Justice John G. Roberts, Jr., aiming low as always when it comes to the rights of criminal defendants, declared that:
"DNA testing alone does not always resolve a case…The availability of technologies not available at trial cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence,is suddenly in doubt. The dilemma is how to harness DNA's power to prove innocence without unnecessarily overthrowing the established system of criminal justice."
And, yes, it's true. Several of the most conservative Justices were willing to go even further—to bar DNA testing following a conviction when the defense attorney at trial chooses not to have such testing performed for tactical or strategic reasons. Justice Clarence Thomas and Samuel A. Alito, Jr. wouldn't have even gotten to the constitutional issue if they didn't have to. For them, it was enough that the defendant's lawyer in the case had passed on the opportunity to test for DNA before the jury reached its verdict.
And, yes, it's true. As the four dissenting Justices pointed out, that officials in Alaska, where the crime occurred, have been unable for the better part of a decade to come up with a compelling reason why they won't allow convicted rapist William Osborne access to evidence he says will exonerate him. Justice John Paul Stevens wrote:
"The State of Alaska possesses physical evidence that, if tested, will conclusively establish whether respondent William Osborne committed rape and attempted murder. If he did, justice has been served by his conviction and sentence. If not, Osborne has needlessly spent decades behind bars while the true culprit has not been brought to justice. The DNA test Osborne seeks is a simple one, its cost modest, and its results uniquely precise."
Regardless of these views and votes, the real action on the DNA front is not taking place in federal courtrooms or even necessarily in Washington. It's happening at the state and local level, and in prosecutors' offices, and on judicial commissions, where the valor and the value of DNA testing is becoming more and more apparent. This year alone, reports the Innocence Project, 13 men and women were exonerated through DNA testing, bringing the total to nearly 300 since the project began. Although it's probably too late for Osborne absent some surprising action by Alaskan lawmakers, the future is now for accuracy and reliability in forensic testing.
Forty seven states (and the District of Columbia) now have their own forms of procedures for access to DNA testing. Some of those rules are quite restrictive—but certainly far better than they were ten years ago. The Congress also has established rules for federal prisoners and granted states money so that DNA tests could be performed there; remember, the vast majority of criminal cases in this country, including almost all murder and rape cases, come from state and not federal courts. More and more prosecutors and defense attorneys, meanwhile, are endorsing a front-loaded approach to DNA testing—willing, even eager, to ensure it occurs before undertaking the cost and trauma of trial. All of this is good news for those of you out there uneasy about wrongful convictions.
That Alaska is one of the three states that has not embraced formal DNA procedures did not deter Chief Justice Roberts, who declared on behalf of the Court that state judges up in the Last Frontier have rules nonetheless that convicts could rely upon to get tested following trial. Alas for Osborne, those procedures did not help. And, indeed, what Chief Justice Roberts called "a prompt and considered" national response by legislators and executive branch officials seeking to expand DNA testing clearly isn't going to be "prompt" enough for many innocent men and women now languishing in our prisons.
If anything, despite Thursday's expected setback at the High Court, the DNA movement may pick up more steam now that economic conditions are so tough on criminal justice budgets. What prosecutor out there wants to waste precious time, money and resources pursuing a rape or murder case without ensuring the reliability of the forensic evidence? What prison official wants to fill his or her already-overcrowded prison with men who have plausible claims of innocence and who haven't been tested to make sure? State governments are releasing guilty people to save costs; where's the incentive keep innocent people in prison?
Sometimes, the Supreme Court is at the vanguard of big changes in the law. Sometimes it merely follows. The Osborne ruling tells us that at least five of our current Justices are going to have to be dragged, kicking and screaming, into the new day.