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The Supreme Court Confronts A Mystery
by: Elizabeth de la Vega
t r u t h o u t | Perspective
03 March 2009
http://www.truthout.org/030309J
In one sense, the matter of District Attorney's
Office for the Third Judicial District v. William G.
Osborne - which was argued before the
Court on March 2 - is a whodunit. Both before and
after his conviction, William Osborne has maintained
he is not the man who participated with Dexter
occurred sixteen years ago on a secluded
Of course, the identity of the second rapist is not
an issue for the Supreme Court to decide.
Ordinarily, the justices consider only matters of
law. But in order to address the legal questions
raised by the Osborne case, the court will have to
confront a different mystery: Why has the State of
Osborne's adult life to deny him access to
biological evidence for purposes of sophisticated
and precise DNA testing (called Short Tandem Repeat,
or STR) that can - as former Fourth Circuit Judge J.
Michael Luttig has put it in another context - make
it "literally possible to confirm guilt or innocence
beyond any question whatsoever?"
Did Osborne waive an opportunity to apply this test
to the evidence before his conviction? Nope. There
is no dispute that this methodology did not exist at
the time of the 1993 trial. Is it the cost? Nope.
The
has agreed to pay the $1,000 fee. Why, then, do the
prosecutors from
the evidence locker? There appears to be no good
reason - or almost any reason at all.
Admittedly,
post-conviction DNA analysis. (It is one of only six
states without a law that allows such tests when a
defendant shows that favorable results would create
a "reasonable probability" of innocence.) But why
not simply consent to the STR test as other states
have done in similar situations?
That, in substance, is what a three-judge panel from
the Ninth Circuit Court of Appeals wanted to know in
2007 when the parties appeared for yet another
appellate argument in the ten-year multi-court
litigation, this time because the State of
was seeking reversal of a lower court's order to
turn over the evidence for DNA testing. As counsel
for the state stood at the podium, the judges asked
repeatedly: Why is the state continuing to deny
access? The answer was remarkably consistent, if
astounding: We are not "willing or able" to answer
those questions "at this time."
Not surprisingly, the Ninth Circuit Court of Appeals
was underwhelmed by this response. Affirming the
district court's order to turn over the evidence, it
held that "under the unique and specific facts of
this case and assuming the availability of the
evidence in question [Osborne] has a limited due
process right of access to the evidence for purposes
of post-conviction DNA testing."
It remains to be seen whether the Supreme Court will
divine a legally acceptable basis for the State of
to the very same evidence it used to convict him so
he can conduct a DNA test capable of exonerating
him. Osborne's attorneys faced some tough questions
at oral argument. But the truth is, one would have
to search long and hard in the State of
written submissions for a rationale of any sort that
does not defy logic.
Consider, for fun, the state's procedural objection
to the case, which has such a distinctly
Wonderland quality that it is difficult even to
explain. But here goes:
The State Gets Ahead of Itself
To understand the State of
position, you first need some background on two
federal legal remedies available for state
prisoners. Each has a distinct purpose and allows
for a different type of relief. The first -
affectionately known as 42 U.S.C. 1983 - only allows
lawsuits that allege deprivation of federal
constitutional rights relating to conditions of
confinement. This is interpreted somewhat broadly:
If your prison had no law library, for example, you
could sue under Section 1983 alleging a deprivation
of your constitutional right to meaningful access to
the courts. If you prevailed, you could possibly get
monetary damages (although probably not) and an
injunction ordering the prison to provide the law
books. You would not, however, get out of jail just
because your Section 1983 action was successful.
Indeed, the Supreme Court has ruled that Section
1983 cannot be used as the basis for a lawsuit that
will necessarily lead to immediate release.
The only remedy that does allow a state prisoner to
be freed from custody based on a federal
constitutional violation is habeas corpus. And it is
only available where the violation alleged could
make the very fact of confinement illegal. If, say,
you wanted to allege your conviction was
unconstitutional because it resulted from
ineffective assistance of counsel, your appropriate
course would be to file a petition for habeas
corpus, alleging a violation of the Sixth Amendment
right to counsel. If you were successful, the relief
would be release from prison.
So what does all of this have to do with Osborne and
the State of
Well, the lawsuit that Osborne has been pursuing all
these years is based on 42 U.S.C. 1983.
Specifically, he claims that the state's refusal to
provide the evidence deprives him of liberty without
due process of law in violation of the Fourteenth
Amendment. He is not asking to be released from
prison if a violation is found. Quite explicitly,
the only relief Osborne is seeking is an injunction
requiring the State of
the evidence for DNA analysis.
In order to put up a procedural bar to the case,
however, the State of
the unambiguous nature of Osborne's complaint. It
argues that since Osborne's ultimate motive is to
get out of prison, his Section 1983 action should be
dismissed and he should be required to file a
federal habeas petition.
The Ninth Circuit gave short shrift to this
contention, noting that if Osborne wins his Section
1983 suit, the only relief available will be access
to the evidence. That's it. If the STR testing were
to show that he is innocent, he would then have to
initiate an entirely separate proceeding, or perhaps
file a petition for clemency, in order to get out of
prison. If the test did not exonerate him, of
course, that would be the end of it. In other words,
the Court of Appeals said, "The state is getting ahead of itself."
Catch-22
The problem with the State of
roadblock to Osborne's simple request is not simply
that it is illogical; it is disingenuous, at best.
Why? Because, as the case now stands, in order to
file a habeas petition seeking release from prison,
Osborne would have to make what is known as a
"freestanding claim" of actual innocence. To attempt
to prove that he is actually innocent, however,
Osborne needs to obtain the biological evidence he's
been trying to get for so long. In order to obtain
this evidence in a lawsuit, he needs to be entitled
to discovery. But, here's the rub: Under federal
law, habeas petitioners are not entitled to
discovery. A district court may require them to
proceed with the evidence they have at the time they
file the case. As Osborne's attorneys argued to the
Supreme Court, this Catch-22 formulation could not
possibly be an accurate reflection of the law:
Indeed, it would be passing strange if a prisoner would
be obligated to file a habeas petition seeking relief
based on actual innocence without any evidence to
support that claim, for the sole purpose of obtaining
that evidence in discovery. (n.9)
The State of
Osborne for purposes of this cost-free test is also
passing strange, and quite possibly tragic. Osborne
may or may not be innocent, but STR analysis is now
universally recognized as reliable and accurate to a
degree that removes all possible doubt. The state
has no legitimate interest in incarcerating a person
who is innocent and it has a compelling duty to
apprehend one who is in fact guilty. Equally
important - as former Attorney General Janet Reno
and the many other prosecutors who jointly filed an
amicus brief pointed out - the job of a prosecutor
is to do justice, not merely to win the case. We can
only hope that the Supreme Court will ultimately see it the same way.
Elizabeth de la Vega is a former federal prosecutor with
more than 20 years of experience. During her tenure, she
was a member of the Organized Crime Strike Force and
chief of the San Jose Branch of the
for the Northern District of California. Her pieces have
appeared in a variety of print and online publications
including Truthout, TomDispatch.com, The Nation, The Los
Angeles Times, Salon, Mother Jones and The Christian
Science Monitor. The author of "
W. Bush et al," she may be contacted at
ElizabethdelaVega@Verizon.net or through Speakers Clearinghouse.
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