Supreme Court DNA Ruling: Once Again Roberts Court Allows "Procedural" Issues to Trump Justice

The Supreme Court ruled Thursday that convicted inmates do not have the constitutional right to DNA testing, even though it could, as Justice Stevens said in his dissent, "ascertain the truth once and for all."
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The Innocence Project, a non-profit that represents inmates who they believe to be wrongly convicted, estimates that modern DNA testing has exonerated 240 people nationwide -- at least 17 of these were sentenced to death.

Law enforcement officials of all stripes agree that DNA testing is extraordinarily powerful at establishing both the innocence and guilt of those who perpetrate violent crimes -- especially rape and murder. That's why the FBI has established a nationwide data bank for the DNA samples of offenders.

But the Supreme Court ruled Thursday -- on a 5 to 4 decision -- that convicted inmates do not have the constitutional right to such tests, even though everyone agrees that it could -- as Justice Stevens said in his dissent -- "ascertain the truth once and for all."

As a result, if you happen to be convicted of a crime in a state whose legislature has not provided for post-conviction DNA testing -- or if your lawyer errs in not requesting such a test before you are convicted -- you're just out of luck -- even though you may be entirely innocent and someone else may be guilty of the crime.

In other words, in the view of the majority of the court, justice and due process are irrelevant. Roberts wrote that "the challenges DNA technology poses to our criminal justice systems and our traditional notions of finality are better left to elected officials than federal judges."

In fact, of course, the principal job of Federal Judges -- and certainly the Supreme Court -- is to defend the Constitutional mandate for due process of law.

Roberts' ruling is one of the clearest examples of the type of attitude that President Obama described as "ivory tower" opinions that don't comprehend the effect they have on real people in the real world.

If someone contests his conviction of a serious crime, and a means is available to cheaply and definitively determine his guilt or innocence, common sense says that it is only just to do the test and find out what is true and what is not. Even more so, because if an innocent person stands convicted of a crime, a guilty one is still at large.

The facts of the case decided Thursday are simple and clear. William Osborn was convicted of a brutal rape and assault in Anchorage, Alaska. During his trial in 1993, a test on semen found at the crime scene indicated that it could have come from Osborn -- but also from 15 percent of the population of African-American men. After his conviction, Osborn continued to profess his innocence, and wanted a more exacting test that prosecutors agreed would almost definitively prove his guilt or innocence. But the prosecutors refused to allow it.

In other words, the prosecutors were more interested in winning than in justice or truth.

That should outrage anyone with a sense of simple justice. And it should be an open-and-shut case on appeal. Osborn did appeal, and the 9th Circuit Court of Appeals recognized a right to such testing under the due-process clause of the Fifth Amendment.

But for Justices Roberts, Alito, Thomas, Scalia and Kennedy, the prerogatives of states, and "notions of finality," have more power than the interests of simple justice.

For me this is one more example why I am so glad that during his term Barack Obama will likely have the opportunity to return the Supreme Court to a body that performs the function for which it was intended -- the guarantor of due process under law.

As for William Osborn, I hope that the DNA test would have found that he had committed the crime for which he is serving time. Otherwise another innocent man may be wasting his life in prison, and a guilty one may still be brutalizing women. The Roberts' Court decision makes it likely that -- even though it would be easy to determine which is true -- we probably will never know.

Robert Creamer is a longtime political organizer and strategist, and author of the recent book "Stand Up Straight: How Progressives Can Win," available on

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