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The saying goes that bad cases make bad law, and District Attorney’s Office for the Third Judicial District, et al. v. Osborne is definitely a bad case. William Osborne was convicted in 1993 of kidnapping, raping, and assaulting a woman in Alaska. In his trial, the prosecution presented the results of a DNA test that seemingly linked him to the crime, but the test would have also matched about 15% of the black population. Osborne decided to forgo a more accurate DNA test for strategic reasons. He is now asking for access to the DNA sample retrieved from the victim so that he can carry out a better DNA test, and he is asking that the Supreme Court declare that access to DNA evidence is a fundamental right guaranteed by the 14th Amendment's Due Process clause.

The problem is that Osborne has never really claimed his innocence. He pleaded innocent at trial, but he has never signed any affidavit or claimed innocence under oath. Under Alaska law, if he made such a claim, under penalty of to perjury, he would be able to get a new court hearing with possible access to DNA evidence. The problems abound: if he signs such an affidavit, he will probably face perjury charges for the two signed (and detailed) confessions he made to the parole board, and the Alaska Assistant Attorney General at oral argument refused to promise that they wouldn't oppose Osborne's request for DNA even if he did request it. Osborne is in a kind of catch-22: if he gets the DNA evidence and is found innocent, he will face perjury charges and possible imprisonment for signing a false confession in an attempt to gain early release for crime he didn't commit. If the DNA evidence finds him guilty, he's wasted everyone's time and will remain in prison. Either way, he's in jail.

Several of the Justices, most notably Justice Alito and Chief Justice Roberts, seemed concerned with the possibility of gaming the system: a defendant at trial might choose to skip DNA tests with the hope that he is acquitted, then after a conviction he might raise the DNA issue in an attempt to get a second trial. The Court generally disfavors legal setups like this that allow "two bites at the apple."

Justice Souter, on the other hand, seemed concerned with the Alaska procedure requiring a defendant to swear innocence in order to get the DNA evidence: while the defendant knows whether he is guilty or innocent, he does not know what the DNA test will find, and the Alaska procedure requires him to swear that the evidence they want to present will be material to the case. Osborne doesn't know what the DNA test will find, so he cannot honestly swear that the results will change anything.

Also at issue in the case was the question of whether this kind of claim should be brought as a 1983 civil rights action or in a habeas corpus proceeding. Osborne's lawyer said that 1983 was appropriate because Osborne cannot claim the evidence he seeks will result in his release, but Justices pointed out that that was clearly his goal. Justice Scalia poked fun at the idea that Osborne just wanted to look at the evidence without intending to use it for his release.

The Justices seemed mixed on a variety of issues, so a prediction of the final vote count is difficult. My guess is that Osborne will get 2 or maybe 3 votes, with Justices Souter, Ginsburg, and maybe Stevens. Justice Breyer is unpredictable. Justices Roberts, (especially) Scalia, Kennedy, and Alito seemed to have very little sympathy for Osborne's position, and Thomas will probably be with them. My prediction: Osborne loses. The case will likely be decided in May or June.