On Monday, March 3, the Supreme Court heard oral arguments in District Attorney's Office for the Third Judicial District, et al. v. Osborne. The Court is considering two questions on certiorari: 1) whether Osborne may use 1983 as a discovery device to obtain post-conviction access to the state's biological evidence when he has no pending substantive claim for which that evidence would be material; and 2) whether Osborne has a due process right to obtain post-conviction access to the state's biological evidence when the claim he intends to assert - a freestanding claim of innocence - is not legally cognizable.
These facts are from Osborne v. State, 2005 Alas. App. LEXIS 17 (Alask. Ct. App. 2005). On March 22, 1993, respondent Osborne was one of two men who sexually assaulted K.G. at gunpoint. The two men then ordered K.G. to get out of the car and lay face down in the snow. When she refused, Osborne struck her with the gun and choked her. Out of fear that the men would kill her, K.G. defecated on the front passenger seat of the car. Then, Osborne smeared her own excrement on K.G.'s face, hair and clothing. Though K.G. was able to run a few feet from the car, the two men continued the assault. They repeatedly struck her with an axe handle on her head, ribs, and knees. K.G. decided to play dead, but Osborne fired his gun at her head (fortunately, only grazing her) and the two men partially buried her in the snow. They believed either that she was dead or left her for dead.
The details of that day in 1993 are horrifying to recount, but some argue that this case is as much about K.G.'s right to privacy as it is Osborne's post-conviction rights to access DNA evidence. In their amicus brief on behalf of K.G. and the National Crime Victim Law Institute, and in support of petitioner, Paul Cassell and Margaret Gavin focus on K.G.'s right to remain free from further intrusion into her privacy. Because Osborne has never declared under threat of perjury that he is actually innocent, Cassell and Garvin argue that K.G.'s right to privacy outweighs Osborne's right to go on an evidentiary fishing expedition. Notably, K.G.'s clothing could contain at least three substances: semen, blood and feces. The amici list significant personal information that might be revealed if Osborne gets access to the testing: K.G.'s previous sexual partners; private medical facts (including whether she was pregnant); HIV status; and DNA (which can reveal whether the subject carries mutations for any disorders or carries genetic variations that cause schizophrenia and alcoholism, or worse). Additionally, Cassell and Garvin cite research that a significant barrier to reporting sexual assaults is the victim's concern about her confidentiality. Finally, the amici are careful to frame their main point as follows:
"...[B]y seeking these tests through a 1983 petition rather than a federal heabeas petition, Osborne has effectively made an end run around vital protections contained in the Crime Victims' Rights Act, 18 U.S.C. 3771."
The Court should note how much of K.G.'s personal information will be revealed if Osborne, who has already been convicted, is allowed access to the DNA testing he seeks.
During last Monday's oral arguments, no one mentioned victims' rights or privacy interests. Peter Neufeld, attorney for the respondent, argued that allowing Osborne (who forwent this particular DNA test at his trial for strategic reasons) to perform a simple test on the blood and semen evidence gave him no advantages, and even punished him if the results proved his guilt. Justice Scalia quickly interrupted, "But [defendants] will have acquired the advantage of having a chance of the jury's acquitting them at the trial. Because by not asking for the DNA test, there was a chance the jury might let them off." Chief Justice Roberts also raised the concern that convicted criminals will have access to endless appeals if they can continually re-test evidence as technology advances. He favored the requirement that they proclaim their actual innocence under penalty of perjury before having access to the evidence.
In sum, this case concerns more complex legal questions than a
victim's right to privacy, but the Court's answers must acknowledge
that victims of sexual violence play a greater role in the criminal law
than simply being DNA evidence. In reaching its decision, the Court must carefully consider the victims' rights to privacy and finality, the constitutional rights of criminal defendants, and society's interest in convicting the guilty and freeing the innocent.
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