Prof Farlei Martin,Ucam e doutorando em direito da Puc-rio envia a seguinte matéria:
The New York Times
June 19, 2009
Justices Reject Inmate Right to DNA Tests
By ADAM LIPTAK
WASHINGTON — Prisoners have no constitutional right to DNA testing that
might prove their innocence, the Supreme Court ruled on Thursday in a 5-to-4
The court divided along familiar ideological lines, with the majority
emphasizing that 46 states already have laws that allow at least some
prisoners to gain access to DNA evidence.
“To suddenly constitutionalize this area,” Chief Justice John G. Roberts Jr.
wrote for the majority, “would short-circuit what looks to be a prompt and
considered legislative response.”
The case before the court concerned Alaska, which has no DNA testing law.
Prosecutors there have conceded that such testing could categorically
establish the guilt or innocence of William G. Osborne, who was convicted in
1994 of kidnapping and sexually assaulting a prostitute in Anchorage.
In a dissent, Justice John Paul Stevens said the Constitution’s due process
clause required allowing Mr. Osborne to have access to DNA evidence in his
“For reasons the state has been unable or unwilling to articulate,” Justice
Stevens wrote, “it refuses to allow Osborne to test the evidence at his own
expense and to thereby ascertain the truth once and for all.”
Chief Justice Roberts acknowledged the “unparalleled ability” of DNA testing
“both to exonerate the wrongly convicted and to identify the guilty.” Such
testing has played a role in 240 exonerations, according to the Innocence
Project at Cardozo Law School, which represents Mr. Osborne. In 103 of those
cases, the testing also identified the actual perpetrator.
Peter Neufeld, a director of the project, said Thursday’s decision would
have pernicious consequences.
“It’s unquestionable that some people in some states who are factually
innocent will not get DNA testing and will languish in prison,” Mr. Neufeld
said. “Some of them will die in prison.”
Only four states — Alabama, Alaska, Massachusetts and Oklahoma — do not have
laws in place specifically dealing with postconviction DNA testing, and
Alabama recently enacted one limited to death row inmates that will become
Many states that do allow postconviction testing impose conditions on who
may seek it. Prosecutors often fight hard to deny access to DNA evidence
even in states that nominally allow it, saying the prisoner in question had
not met the statutory conditions.
Some laws, for instance, do not allow prisoners who have confessed to seek
DNA evidence, though false confessions have been common among exonerated
inmates. Other states allow testing only if it was unavailable at the time
Mr. Neufeld said the logic of Thursday’s decision might allow constitutional
challenges to some of those laws.
In the case from Alaska, District Attorney’s Office v. Osborne, No. 08-6,
Mr. Osborne sought to test biological evidence on a condom found at the
crime scene, a snowbank near Anchorage International Airport. The victim was
raped, beaten with an ax handle, shot in the head and left for dead. But the
bullet only grazed her head, and she survived.
Rudimentary DNA testing on the condom in preparation for trial excluded two
other suspects and included Mr. Osborne among those who might have committed
the crime. The kind of testing used at the time, Chief Justice Roberts
wrote, “generally cannot narrow the perpetrator down to less than 5 percent
of the population.”
Mr. Osborne’s trial lawyer decided not to pursue a second kind of DNA
testing that was more discriminating. The lawyer said she feared that the
results might further incriminate her client. After his conviction, Mr.
Osborne sued state officials in federal court seeking access to the DNA
evidence for a third kind of yet-more-discriminating testing.
There was other significant evidence of Mr. Osborne’s guilt, and he
confessed to the Alaska Board of Parole, which released him after 14 years.
He later said he had lied to the parole board in the hope of quicker
release. Mr. Osborne has since been convicted of a home invasion.
Last year, the United States Court of Appeals for the Ninth Circuit, in San
Francisco, ordered prosecutors in Alaska to turn over the DNA evidence,
saying the most sophisticated form of testing had not been available at the
time of the trial, that Mr. Osborne would bear its cost and that the results
could provide a conclusive answer about his guilt or innocence.
Justice Samuel A. Alito Jr., in a part of his concurrence joined by Justices
Anthony M. Kennedy and Clarence Thomas, was skeptical of all of the appeals
Allowing Mr. Osborne to forgo testing at trial and then request it from
prison, Justice Alito wrote, “would allow prisoners to play games with the
criminal justice system.”
“After conviction,” Justice Alito added, “with nothing to lose, the
defendant could demand DNA testing in the hope that some happy accident —
for example, degradation or contamination of the evidence — would provide
the basis for seeking postconviction relief.”
Justice Alito acknowledged that the testing Mr. Osborne now seeks was more
advanced than the kind his lawyer failed to pursue.
“But his counsel did not decline” the less discriminating testing “because
she thought it was not good enough,” Justice Alito wrote. “She declined
because she thought it was too good.”
States would incur significant costs, Justice Alito added, were prisoners
“given a never-before-recognized constitutional right to rummage through the
state’s genetic-evidence locker.” And even the most sophisticated DNA
testing, he said, “often fails to provide absolute proof of anything.”
Although it has no DNA testing law, Alaska does have general procedures
through which prisoners can try to gain access to evidence that might prove
their innocence. The justices disagreed about how effective those procedures
Chief Justice Roberts, whose majority opinion was joined by Justices
Kennedy, Thomas, Alito and Antonin Scalia, wrote that he saw “nothing
inadequate” about the procedures.
But Justice Stevens said no prisoner had ever obtained DNA evidence for
testing in Alaska. He said Mr. Osborne “was rebuffed at every turn” by the
state, creating “grave doubts about the adequacy of the procedural
protections” in state law.
Justices Ruth Bader Ginsburg and Stephen G. Breyer joined all of Justice
Stevens’s opinion and Justice David H. Souter part of it.
Justice Souter issued a dissent saying that officials in Alaska had
“demonstrated a combination of inattentiveness and intransigence” that add
up to “procedural unfairness that violates the due process clause.”
But Chief Justice Roberts concluded that the issue of when to allow DNA
testing was best handled by the states.
“The question,” he wrote, “ is whether further change will primarily be made
by legislative revision and judicial interpretation of the existing system,
or whether the federal judiciary must leap ahead — revising (or even
discarding) the system by creating a new constitutional right and taking
over responsibility for refining it.”