District Attorney’s Office for the Third Judicial District v. Osborne – Oral Argument – March 02, 2009

Media for District Attorney’s Office for the Third Judicial District v. Osborne

Audio Transcription for Opinion Announcement – June 18, 2009 in District Attorney’s Office for the Third Judicial District v. Osborne

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John G. Roberts, Jr.:

We will hear argument first this morning in Case 08-6, District Attorney’s Office for the Third Judicial District v. Osborne.

Mr. Rosenstein.

Kenneth M. Rosenstein:

Thank you, Mr. Chief Justice, and may it please the Court: The State of Alaska fully recognizes the importance of DNA evidence.

The State provides criminal defendants with pretrial access to that evidence, and it has postconviction procedures that give prisoners a fair opportunity to retest that evidence should new technology become available.

So this case really isn’t about the importance or power of DNA evidence.

Rather it’s about three things: First, it’s about the proper procedural device for asserting in Federal court a right to postconviction testing.

Section 1983 is not the correct device because Mr. Osborne’s claim clearly sounds in Federal habeas corpus.

The evidence he seeks has a singular relevance to support a direct attack on the validity of his confinement.

David H. Souter:

Well, he’s — he’s not — at this point all he’s doing is seeking evidence.

We don’t know — he doesn’t know, presumably — exactly what that evidence is going to show.

The evidence may prove to be exonerating and it may not be.

Until one knows the tendency of the evidence, one can’t say that we have a Preiser problem.

So if — if we don’t have that kind of a problem, then I don’t see — I guess I don’t follow your argument that this necessarily sounds in habeas.

Kenneth M. Rosenstein:

Well, Your Honor, the — Mr. Osborne’s case is comparable to Balisok v. Edwards, where the Petitioner was seeking damages for — as a result of a biased hearing in prison.

David H. Souter:

Right.

And if he was seeking damages in this 1983 action for false imprisonment or — or imprisonment under an invalid conviction, I would understand your argument.

But what he is saying in effect is: I want process to know what this evidence has to say; and that is not seeking damages, and it’s not seeking release.

Kenneth M. Rosenstein:

That’s correct, Your Honor.

It’s not seeking damages, but the proof — the difference between this case — the only difference between this case and Balisok is that in this case the proof is going to be happening in a laboratory; whereas, in Balisok the–

David H. Souter:

No.

The difference — the difference is that if he succeeds in this case in getting access to the evidence, that doesn’t get him outside or — or even in position to go outside the prison door.

All it does is get him some evidence to test.

And what he does with that later, if he finds it favorable, presumably is necessarily going to be in habeas.

Kenneth M. Rosenstein:

–But this — his request is — is simply a discovery request.

He’s — he’s split his — his claim away from his underlying claim of actual innocence, his–

David H. Souter:

Well, he’s got to because he doesn’t know whether he has any evidence of actual innocence at this point.

Kenneth M. Rosenstein:

–But he — to assert a claim of actual innocence, he doesn’t need to have the result of a DNA test, and–

David H. Souter:

He’s not asserting it.

He just says: I want to get to this evidence and see what it has to say.

Kenneth M. Rosenstein:

–But the — this evidence has a singular relevance, and his — his true intent is to — is to assert–

David H. Souter:

No.

Kenneth M. Rosenstein:

–a claim of innocence.

David H. Souter:

He has a singular objective in getting the evidence, but we don’t know what the evidence means.

The evidence may conclusively prove that he is guilty, for all we know.

Kenneth M. Rosenstein:

That’s true, Your Honor, but what this represents, what his request represents, is a discovery request.

David H. Souter:

Well, it’s a — that’s — that’s a fair way of putting it, but what he — I think ultimately his strongest argument or his — his basic argument is, this evidence is potentially so important that the State has no valid interest in keeping me at least from seeing it; i.e., testing it.

And you can call that discovery if you want to, but it’s something very different from the normal discovery that goes on as — as an ancillary process to a — to a criminal prosecution.

Kenneth M. Rosenstein:

Well, the — the State does have an interest in — in insisting that Mr. Osborne follow the established procedures.

David H. Souter:

Oh, that — that may be.

I’m not getting into that here.

Antonin Scalia:

Would the other side concede the premise that he doesn’t say that this is going to exonerate him?

That he has — you know — here’s some — some evidence out there.

It may help me; it may hurt me.

I don’t know which, but I — I’d like to see it.

Is — is that the only claim he’s making?

If so, it’s — it’s a lot less — what should I say — a lot less plausible a constitutional claim.

There’s some evidence that I’d like to look at; I’m not saying it will prove me innocent.

I’d just like to look at this evidence.

Might, might not.

That’s a lot weaker claim than what I had thought he was making, which is — is the claim that this — this new scientific evidence will — will prove my innocence.

Kenneth M. Rosenstein:

That’s correct, Your Honor.

Antonin Scalia:

Well, which is he doing here?

Is — is he saying the latter or not?

Kenneth M. Rosenstein:

Well, he hasn’t — he has never really asserted that he is actually innocent.

He holds out the possibility, and he’s filed an affidavit which is at joint appendix–

Antonin Scalia:

So — so it’s not a constitutional claim of entitlement to evidence which he asserts will prove his innocence, but rather a constitutional claim to evidence which might or then might not prove his innocence?

Is that–

Kenneth M. Rosenstein:

–He — he has hedged, Your Honor.

Ruth Bader Ginsburg:

Perhaps we should let the — let Osborne, Osborne’s attorney, address that question, because you’re not really equipped to answer for the other side.

Antonin Scalia:

–Well, we were — we’re assuming the premise, though, in — in the questioning.

Kenneth M. Rosenstein:

Well, as this case started, Your Honor, Mr. Osborne was asserting that it would establish his — his innocence.

But yet he has never — he has never made a declaration under penalty of perjury that he is innocent.

So, Your — Your Honor, you’re correct.

He seems to be, for lack of a better word, fishing for evidence that — that might help him.

And–

Ruth Bader Ginsburg:

There was — there was evidence in — at his trial at the state of the art at that time.

There was whatever the test was.

Kenneth M. Rosenstein:

–Justice Ginsburg, at trial the State performed what is known as DQ alpha testing.

Antonin Scalia:

And that was not the state of the art at the time, was it?

Kenneth M. Rosenstein:

That’s my understanding, that the RFLP testing was a much more discriminating type of — would yield a much more discriminating result than the DQ Alpha.

Antonin Scalia:

He didn’t ask for that.

Kenneth M. Rosenstein:

That’s correct, Your Honor.

Ruth Bader Ginsburg:

But — but when did the current technology become available?

When did the test — testing that he now requests–

Kenneth M. Rosenstein:

I’m not certain about that, Your Honor.

My — I would guess that it was around the late nineties.

It was available before he filed his — this Federal action.

John G. Roberts, Jr.:

Does the State routinely keep evidence of the sort Osborne is seeking available?

Or is there a cutoff point at which they dispose of the evidence?

Kenneth M. Rosenstein:

I can’t answer whether the State has a policy.

It seems to be a decision that is made jointly with the police, the — the crime lab, and the prosecutors, and it depends, I would — I would think, on the status of the case as it — as it proceeds after conviction through direct appeal.

Stephen G. Breyer:

What now?

As far as I understand, there’s a procedural problem.

I tried to figure out the Heck line once in Balisok.

My impression of it is that if, Mr. Prisoner, you’re bringing an action challenging some confinement, or the effect of your action is going to be to let you go out of solitary or out of prison, then proceed your habeas.

But if what you’re trying to get is relief that may or may not mean you get out of solitary or you get out of prison, then you go to 1983.

But, by the way, if you’re in 1983 you are complaining about an action or inaction by a State official that violates a constitutional right.

Now, as I look at this case, the prisoner, if he wins, is not going to get out, and he is complaining about the State violating a constitutional right by refusing to give him DNA.

It seems to me that second question is the question that’s the heart of the case: Does the State have a constitutional obligation to give him the DNA?

So I would appreciate your telling me why it doesn’t.

Kenneth M. Rosenstein:

Justice Breyer, the State doesn’t have an obligation to provide this evidence to him because there is no — a — prisoners have no Federal right to postconviction relief, and the State of Alaska has provided procedures by which — which Mr. Osborne if he chose to use them could make available the evidence that he seeks.

But he hasn’t chosen to invoke those procedures.

Ruth Bader Ginsburg:

–Would you explain that–

Stephen G. Breyer:

Is there any reason to think that if, in fact — sorry.

John G. Roberts, Jr.:

Justice Breyer.

Ruth Bader Ginsburg:

–Just to clarify his statement, he said that the State of Alaska provides a means for him to get at this information; but if it did, I think we wouldn’t be here.

So would you — Alaska is one of the few States that has no statute.

Kenneth M. Rosenstein:

That’s correct.

Ruth Bader Ginsburg:

So what — you say — I mean, this whole controversy is whether the State is obliged to give him this information; but you’re saying it’s simply that he picked the wrong procedure.

That’s what I thought I heard you say just now; that there is a means under Alaska law where he could get this DNA postconviction.

So would you please explain what the Alaska procedure is?

Kenneth M. Rosenstein:

Yes, Justice Ginsburg.

Alaska has a postconviction relief statute and that is at page — starts at page 10a of the blue brief.

And under that statute, a prisoner can assert a claim for — for postconviction relief when there exist material facts — I’m quoting from Alaska Statute 12.72.010.

For — postconviction relief is there available when a person claims that there exists evidence of material facts not previously presented and heard by the court that requires vacation of the conviction or sentence in the interest of justice.

Now, if you — if Mr. Osborne were to state a cognizable claim under that statute, the Alaska rules of court then apply the full civil rules pertaining to discovery as a right to the applicant.

Ruth Bader Ginsburg:

Has there been any case in Alaska where a defendant postconviction was, in fact, able to get DNA testing under the procedure you just described?

Kenneth M. Rosenstein:

Well, Your Honor, there’s — there was one case and it’s cited in the yellow brief, Patterson v. State, that a prisoner did apply in court and was granted access to the DNA evidence, but then it came to pass that the evidence had been destroyed by — by that time.

So in that case the relief was granted, but through the destruction of the evidence the — no testing was possible.

Anthony M. Kennedy:

Can you give me some idea of how many cases there are in, say, the last 10 years in which in State postconviction proceedings the convicted prisoner has asked for DNA evidence?

Kenneth M. Rosenstein:

I believe–

Anthony M. Kennedy:

Three?

Or 300?

Kenneth M. Rosenstein:

–Less — we did an informal search and found seven cases where there were actual requests; and I — I believe that five of them involved court cases, the one that I have just mentioned where the relief was granted, and I believe the remaining are pending decision.

Antonin Scalia:

Of course, that — that relief would — would require him to assert his innocence, wouldn’t it?

He would have to bring a habeas corpus action claiming that the State has no business holding him because in fact he’s innocent?

He doesn’t want to do that; he just wants to say, you know, I’d just like to see this evidence.

Kenneth M. Rosenstein:

Well–

Antonin Scalia:

It might help me.

It might not help me, but–

Kenneth M. Rosenstein:

–That’s — prisoners have never been able to postconviction simply seek over the counter the evidence that — that was used in their earlier — in their–

David H. Souter:

I don’t know that they’re — they’re arguing with you on that score.

What they — what they are saying — I think what they’re saying, and this goes to a variety of — Justice Scalia’s question is that under the Alaska statute, in order to get to the evidence, or indeed in order to make his — his postconviction claim, he’s got to claim that the — that the evidence of material fact requires vacation of the conviction or sentence.

And his argument is, I don’t know whether it requires it; because I haven’t been able to test it.

What I want is to test it.

And as I understand it, under this particular statute, he has no chance of doing so because he can’t tell you in advance what the test is going to show.

That’s — isn’t that correct?

Kenneth M. Rosenstein:

–But Justice Souter–

David H. Souter:

Well, first tell me whether that’s correct or not.

Kenneth M. Rosenstein:

–That–

David H. Souter:

He doesn’t know what the test is going to — he doesn’t know what the test is going to show; so–

Kenneth M. Rosenstein:

–That is correct.

David H. Souter:

–he cannot say that it requires vacation of the conviction; isn’t that correct?

Kenneth M. Rosenstein:

That is correct.

David H. Souter:

Okay.

Kenneth M. Rosenstein:

But, but — but only Mr. Osborne knows whether he is innocent.

And if he is innocent–

David H. Souter:

But Mr. Osborne doesn’t know what that evidence is going to show.

Kenneth M. Rosenstein:

–If–

David H. Souter:

He hasn’t tested it.

Kenneth M. Rosenstein:

–That — that’s correct.

David H. Souter:

Whether — whether he believes he’s innocent or whether he doesn’t believe he’s innocent, he can walk into court, as I understand it, and say, I am absolutely innocent.

But what he cannot do prior to testing the evidence is tell you, is allege that the evidence is going to require the vacation of the conviction.

Kenneth M. Rosenstein:

But if he is innocent, then he does know the — the result of the testing.

Antonin Scalia:

–Well, I thought you said the State has — has indeed granted a habeas request.

In that case, where it granted the habeas request, although it turned out that the evidence was destroyed, in that case, surely the same situation — the same situation existed.

Kenneth M. Rosenstein:

Well, I think actually, Your Honor, it did not, because in that case he never asserted his innocence.

That was a request he made on reconsideration after the denial of his ineffective assistance claim.

And he said that under the due — under due process, I am entitled to have this evidence so that I can present an actual innocence claim.

So the case that you are referring to is–

Antonin Scalia:

It is the case you are referring to.

I didn’t — I didn’t make it up.

You did.

[Laughter]

Kenneth M. Rosenstein:

–Well, in — in Mr. Osborne’s first postconviction relief case that was decided in — are you talking about the–

Antonin Scalia:

No.

I’m talking about the case you alluded to earlier, where you say the State of Alaska had indeed provided DNA evidence or had agreed to provide it–

Kenneth M. Rosenstein:

–Oh, okay.

Yes.

Antonin Scalia:

–but for the fact that it no longer existed.

Now, in that case surely the same problem existed that Justice Souter is — is raising.

That — that person also, while claiming innocence, couldn’t say for sure what the evidence would produce, but that didn’t stop the — the State from providing it; did it?

Kenneth M. Rosenstein:

Right.

You’re–

Stephen G. Breyer:

I know your time is up, but I really have only one question this morning and I would like to have a chance to ask it, and I am trying to clear away some undergrowth.

And the undergrowth first I have cleared away in my mind is this Heck question.

The second is the Alaska court decision.

And my impression is that Alaska refused the test because, among other things, they couldn’t say — they said the conviction rested primarily on eyewitness testimony, and they have a bunch of reasons.

But the Ninth Circuit, as a matter of fact, tried to blow apart those reasons.

Suppose I agree with the Ninth Circuit.

Then my question is this: Does the Constitution of the United States require you to give this evidence to the defendant?

And one of the relevant points in my mind is I see it would be of significant advantage to the defendant.

Even if he’s guilty, he can be proved to — whatever.

It is an advantage to him.

Okay?

Now, why don’t you want to give it to him?

Kenneth M. Rosenstein:

–Because, Your Honor, the State of Alaska has a procedure that was not invoked in the–

Stephen G. Breyer:

I — I — there I — that’s the undergrowth I tried to clear away.

I am saying I read all that procedure.

Suppose I believe that the Ninth Circuit is right about that procedure, namely that the tests that they’re using in that procedure are not favorable enough to a defendant who is seeking, as this defendant is seeking, the DNA.

Stephen G. Breyer:

He just wants some DNA.

He’ll pay for it.

The odds are eight to one he’s going to lose.

But he thinks: I’m willing to run those odds.

I won’t put you at any trouble.

Now, why don’t you want to give it to him?

Kenneth M. Rosenstein:

–Because, Your Honor, the State of Alaska has a procedure that would enable him to obtain that evidence.

Stephen G. Breyer:

No.

The procedure has the tests in it that the Alaska court — didn’t the Alaska Supreme Court say, we will not give you DNA evidence unless you can demonstrate, one, that the conviction rested primarily on eyewitness ID evidence; two, that there was a demonstrable doubt concerning his ID as the perpetrator; and, three, that scientific testing would likely would be conclusive.

Wasn’t that their test?

Kenneth M. Rosenstein:

With respect, Your Honor, that was the test they applied in that case, but that is not the test that would apply if Mr. Osborne were to file a new postconviction relief application asserting that he is actually innocent.

If he were to do that, then the full civil rules of discovery would available to him.

Stephen G. Breyer:

And then — a different — then they’d give it to him?

Kenneth M. Rosenstein:

Pardon me.

Stephen G. Breyer:

In other words, all he has to do is file a new piece of paper tomorrow, and he gets the DNA?

Kenneth M. Rosenstein:

Right.

But Alaska — Alaska has procedures for this.

Stephen G. Breyer:

Okay.

Ruth Bader Ginsburg:

But you said something significant.

That — you said that he would have to allege his actual innocence, which he hasn’t done.

So if he continues not to — not to put in a sworn statement that, I am actually innocent, under your current procedure he still couldn’t get the DNA.

Kenneth M. Rosenstein:

If he doesn’t allege his actual innocence, Your Honor, then this is really an empty exercise, a fishing expedition.

He wants to just see what — what the evidence says.

And that — that is not the way litigation works.

Ruth Bader Ginsburg:

You gave the one case in which in the habeas in Alaska the court granted access to DNA, but the evidence wasn’t there.

On how many occasions when postconviction someone moved for the DNA evidence did the Alaska courts deny the request?

Kenneth M. Rosenstein:

My — my — there were — as I said, there were seven cases; And my understanding is there have — has not been a denial.

Ruth Bader Ginsburg:

Well, you told us it was granted in one case.

What happened in the other six?

Kenneth M. Rosenstein:

There — well–

Antonin Scalia:

I thought you said they were still pending.

Kenneth M. Rosenstein:

–There were — there are four or five that are pending.

One of them is Mr. Osborne’s case, and another is being reviewed by the — by the attorney general.

John G. Roberts, Jr.:

Thank you, counsel.

We’ll afford you rebuttal time since the Court used up your time.

Kenneth M. Rosenstein:

Thank you.

John G. Roberts, Jr.:

Mr. Katyal.

Neal Kumar Katyal:

Mr. Chief Justice, and may it please the Court: The Ninth Circuit created a novel constitutional right by extending Brady to the postconviction setting.

Mr. Osborne doesn’t attempt to defend that rationale.

Instead, he attempts to mint a previously unrecognized liberty interest in access to clemency or State postconviction procedures.

Assuming the Court reaches the second question presented, it should not constitutionalize rules for postconviction access to DNA, an area of great legislative ferment in just the last few years.

And even were it inclined to do so, the unusual facts of this case, which include failure to attest to actual innocence under threat of perjury, two recent confessions to the crime, and a tactical decision at trial to forego a highly discriminating RFLP DNA test, all together make this a particularly poor candidate for recognizing a new constitutional entitlement.

Ruth Bader Ginsburg:

What — what were the two confessions?

I know the one before the parole authorities.

What was the other one?

Neal Kumar Katyal:

There are two confessions to the parole authorities.

One is found at page — petition appendix 71a.

There’s a small reprint which is the written portion of the — of the confession.

There’s also separately in the record — this is at supplemental excerpts of the record, pages 248 to 61, in the Ninth Circuit, which–

John Paul Stevens:

Yes, but isn’t it true that we’ve had DNA cases where the person has been found innocent despite the fact they confessed?

Neal Kumar Katyal:

–That is — that is correct.

John Paul Stevens:

How do we know this isn’t one of those cases?

Neal Kumar Katyal:

Well, I am not quite sure that we have had any situation like this, in which you have had so many different facts all together that — that suggested both that he — that he’s guilty and that — and you are talking about a confession that’s taking place years after.

I think the cases that are referred to by the amici are situations in which someone has confessed generally at trial or something like that.

Here you have two confessions years later.

They are very detailed.

The one in the — in the supplemental excerpts to the record is a very long story, and he says that he told his attorney about it and talks all about how he had confessed to his mother, how it was very difficult to exorcise.

It is a very in-depth confession, and it is a confession that the — that the Alaska courts have credited.

It is not just our word.

At joint appendix page 221, the Alaska court found — listened to that 2004 confession in light of the 2006 affidavit that Mr. — Mr. Osborne makes much of, claiming that he is innocent, and put those two documents side by side and said, taken together, they don’t — the 2006 affidavit does not really take–

John Paul Stevens:

Am I right in understanding that the State has agreed that if this evidence is exonerating; that this evidence potentially could exonerate him?

Neal Kumar Katyal:

–The — the State has so agreed.

John Paul Stevens:

Yes.

Stephen G. Breyer:

And is it true that all he has to do is file a piece of paper in the court that says: Whatever I said before, I did it under pressure; I am innocent?

And if he says those words, DNA?

Neal Kumar Katyal:

Well, it is — it is not clear to me under State law.

I think as I understood my friend — but that’s what I understood him to say.

I can tell you, for — Justice Breyer, for purposes of the Federal law, it’s 18 USC 3600, has this requirement in it which says that in order to get DNA testing you must attest under threat of perjury that you are actually innocent.

There is a very serious requirement, done after years of congressional debate.

That is something that the Ninth Circuit rule would disregard, and it would permit someone to come in without that–

Antonin Scalia:

You think we could attach that to the new constitutional right that we invent?

It would be a constitutional right to get it if — if — but if you lose, you get another three years?

Could we say that?

Neal Kumar Katyal:

–Our position, Justice Scalia, is that there is no constitutional right to DNA, but if — were the Court inclined to find one and locate it somewhere in Brady or the procedural due process clause, something we think which would be very difficult to do, but were it — if that were the Court’s inclination, absolutely, it should at least mirror the Federal statute and the — and the rock solid requirements of 3600, which do require that perjury — that perjury statement to be made in order to–

Anthony M. Kennedy:

Do you think there’s a constitutional right to establish innocence in some cases where there is new and — evidence that could not previously have been discovered, that has a high likelihood of exonerating?

Neal Kumar Katyal:

–Well, this Court has struggled with that and so far has said no.

And the latest decision is Herrera v. Collins.

Anthony M. Kennedy:

I’m asking for your position.

Neal Kumar Katyal:

Our position is that the logic of this Court’s precedents is that there is no right at present to actual innocence.

David H. Souter:

Mr. Katyal, the — the right that they’re asserting may be located not in procedural, but in substantive due process.

And what I — what I would like you to comment on is what the government’s or any government’s interest, the United States or that of a State, may — may be in, in effect, in denying that there should be such a right.

And this question occurred to me when I was going through the briefs: What if — we’ll make this Federal for your sake — what if the United States had imprisoned an individual who came forward and said: Nobody realized it, but I was an eyewitness to the crime for which X is — is — has been convicted and is currently being incarcerated; and, in fact, I saw that crime committed and he did not commit it.

X’s lawyer arrives at this individual’s prison and says: I want to talk to the guy.

Would the United States have an interest in saying, you cannot talk to him?

Neal Kumar Katyal:

The United States wouldn’t — wouldn’t have an interest as a — would — would generally permit as a matter of prosecutorial ethics access to — if the United States knew that there was some exculpatory material that it had within its purview, it would turn that over.

It just wouldn’t be a constitutional–

David H. Souter:

Well, you know, prisoners say all sorts of things.

We — we don’t know whether in the long run it is going to be exculpatory or whether this guy has some axe to grind.

But the question is, would the United States have any legitimate interest in saying to X’s lawyer, you can’t even talk with him?

Neal Kumar Katyal:

–Well, I think that it would — it would have to — if it adopted such a rule and allowed the talking in any situation–

David H. Souter:

Why wouldn’t it?

Neal Kumar Katyal:

–Well, Let me talk about DNA, for example.

David H. Souter:

Why do you need a rule, I guess is what I’m saying?

Neal Kumar Katyal:

Let me talk about DNA.

The reason why with respect to DNA is it’s a no-cost proposition for a defendant to say: Hey, I’m innocent, I want to get tested–

David H. Souter:

Oh, okay–

Neal Kumar Katyal:

–so that’s why–

David H. Souter:

–Are you starting with the premise that the United States would not have a legitimate interest in my hypothetical in saying, you can’t even talk to him?

Neal Kumar Katyal:

–Well, the — it depends on the circumstances of the hypothetical and whether or not there’s some — whether or not it would open up the floodgates, I guess, to other requests and so on.

With respect to DNA, there is–

David H. Souter:

Well, let’s assume that if you let this guy talk to — X’s lawyer talk to this guy, other individuals may say, boy, I can have my moment in the sun, too; I’m going to claim this.

You know, let’s assume the worst case there.

Would you still say — would the government still say, we have an interest for that reason in not even letting him talk to him?

Neal Kumar Katyal:

–It’s possible, because there is — it may be that as a policy matter they will allow it, but as a matter of constitutional law, Justice Souter, this Court has repeatedly said–

David H. Souter:

I haven’t gotten to the constitutional law yet.

I just — I just want to know whether — whether there would be a legitimate interest in saying no.

I mean, you can see–

Neal Kumar Katyal:

–Again, there may be because of floodgates or other reasons.

But for the–

John Paul Stevens:

You mentioned the floodgates.

There are seven cases in this State, in the whole history of Alaska.

[Laughter]

Is that right?

And that’s floodgates?

Neal Kumar Katyal:

–Seven thus far, Justice Stevens.

If this Court were to recognize a constitutional right to DNA–

John Paul Stevens:

Yes.

Neal Kumar Katyal:

–for all 50 States, there would really be, I think, quite a dramatically different result.

Antonin Scalia:

And especially, I would assume, one constitutional right in which you do not even have to assert your innocence.

Neal Kumar Katyal:

Precisely.

Neal Kumar Katyal:

And so we’re talking about seven in one State right now, but I think the numbers could be great, and that was what Congress said when they passed 3600, which said there has to be something to lose on the stake of defendants, so that they can’t come in, like Mr. Osborne, and have questionable statements as to whether they’re actually innocent or not.

Stephen G. Breyer:

Why can’t you do this?

Look at the consensus of the statutes in the States and the Federal Government and say there’s a range of appreciation here, and there is a right but it catches only the outliers?

And so the worst that would happen is that the outlying States would have to bring themselves into conformity with the outer reaches of whatever the set of statutes is now in all the other States.

Neal Kumar Katyal:

Because, Justice Breyer, that’s not the way this Court approaches due process questions.

Were it, for example, non-unanimous jury verdicts, which two States have, would be impermissible.

Stephen G. Breyer:

I’m not saying every instance in which there are outliers is unconstitutional.

I’m just saying in this instance for other reasons it might be unconstitutional; namely, you have a good way of proving guilty or innocence, and if that’s so, the practical problem is not great.

You solve the practical problem in the way I just mentioned.

Neal Kumar Katyal:

But you enter the thicket of practical problems, it seems to me, Justice Breyer, when you do that, because the 44 States that have these statutes do it in a variety of different ways with respect to perjury requirements, felonies versus misdemeanors, who gets access, who pays for it, do they get lawyers.

There’s a host of policy questions that arise–

Stephen G. Breyer:

So the constitutional right is bring yourself within any one of them, unless that any one of them is a real outlier, which you can make as an argument that you will never win.

Neal Kumar Katyal:

–Were that the case, then Alaska itself would be within that framework, because it already has a process in place.

Thank you.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Neufeld.

Peter Neufeld:

Thank you very much.

Mr. Chief Justice, and may it please the Court: It is absolutely undisputed in this case that there is a DNA test that Mr. Osborne seeks that could conclusively prove his actual innocence.

John G. Roberts, Jr.:

Well, there was a more reliable one at the time of trial as well, and his counsel made the tactical decision not to use it because, I assume, she was concerned it would show his guilt beyond a reasonable doubt.

Antonin Scalia:

Which apparently he had told her about.

Peter Neufeld:

The test actually, the RFLP test I assume you are referring to, is not actually more reliable.

It’s more discriminating.

And the reason it didn’t get used — even the prosecutor didn’t want to use it as well, Mr. Chief Justice, because they felt that the evidence was so degraded that if they tried using that test, there was a grave risk that it would destroy all the evidence and not get any result.

And that’s why they chose that DQ alpha test, which is more sensitive, albeit not as discriminating.

Samuel A. Alito, Jr.:

But what was the reason that — that Respondent’s counsel provided for not requesting that test?

Peter Neufeld:

Respondent’s counsel said that she was doing it for strategic reasons, although I think it is quite important that Mr. Osborne at all points said he wanted the testing, okay, and that his counsel rejected his advice.

He even wrote to a Nobel Prize winner to see what he could do about getting this additional testing.

Samuel A. Alito, Jr.:

Well, let’s assume for the sake of argument that there is some constitutional right to obtain DNA evidence for testing postconviction.

Would you still — would you say that that right includes the situation where, A, the prisoner refuses to assert under penalty of perjury that he or she is actually innocent; and applies, even if there was a tactical decision at trial not to seek DNA testing at all or not to seek the most reliable form of DNA testing that was available at the time?

Peter Neufeld:

Justice Alito, first — first of all, he was never asked in this pleading to assert his actual innocence.

Peter Neufeld:

As represented by his counsel–

Samuel A. Alito, Jr.:

You think that — you think that’s a novel idea that never occurred to him?

Peter Neufeld:

–Well, no, no.

It’s in the — in 1983, it is not required or even asked that he make that kind of statement.

He did all through the State courts.

In the State courts he always asserted his innocence; through his lawyers he asserted his innocence, and indeed–

Ruth Bader Ginsburg:

Under oath?

Under oath so that he would be subject to penalty for perjury?

Peter Neufeld:

–No, because it wasn’t required.

Indeed, Your Honor, to respond directly to your question, to both of your questions, if this Court decided, as Justice Scalia mentioned before as well, that one requirement of this right is that a person swear under the penalties of perjury, knowing that he could be prosecuted, that he’s actually innocent, then so be it.

It can be remanded for that purpose.

Stephen G. Breyer:

Well, he just doesn’t–

Peter Neufeld:

That is what the Innocence Protection Act requires, and no one has opposed that.

Stephen G. Breyer:

–Well, why isn’t that the end of this case, because I heard opposing counsel say if you go tomorrow and file a piece of paper and swear on that piece of paper you’re innocent, Alaska will give you the DNA.

Isn’t that what he said?

I heard him say that, I thought.

Peter Neufeld:

He said it, but I don’t believe that–

Stephen G. Breyer:

Well, if he said it in this Court in answer to a question, I don’t see why that isn’t binding.

Peter Neufeld:

–Well, they took the same position in the — in the trial court in Alaska they said that he is not entitled to DNA testing under the postconviction statute under any circumstances.

Stephen G. Breyer:

Well, wait.

What — what I heard was that if your client files a piece of paper that says, I am innocent, then under this new procedure, which apparently I hadn’t read about because I didn’t find it, or it wasn’t obvious in the brief, that then they will give him the DNA.

Now that’s either right or it’s wrong; and if it’s right, I think that’s the end of it, and if it’s wrong, well, then we’ll have to proceed.

But I would proceed on the basis that this swearing requirement is not sufficient.

Peter Neufeld:

Well, I don’t believe that you need the swearing requirement, because he has previously asserted his innocence; but what’s most important here–

John G. Roberts, Jr.:

Well, but the whole point is that, Justice Ginsburg brought out the point, that he hasn’t asserted his innocence under oath.

So there’s no cost to him for asking for the DNA evidence.

If there’s — if we’re writing up a new constitutional right and we require as part of that that he assert his innocence under perjury, and if he fails to do that, he’ll be prosecuted for perjury, that might at least put some limitation on the number of people who can assert the right.

Peter Neufeld:

–And I would agree with that.

I think that’s an excellent idea.

And the problem is no one’s suggesting that Alaska can’t do that as a restriction.

Peter Neufeld:

Indeed they can, but Alaska has had no mechanism at all.

Antonin Scalia:

If you accept that — of course it does; and this is not a new procedure.

I — I didn’t understand it to be a new procedure, as Justice Breyer has described it.

It is the procedure of habeas corpus.

They have a procedure for habeas corpus which includes discovery, and all he has to do is come in and say, you know, I have been wrongfully convicted; I am innocent; and I want to — I want to discover this evidence in order to establish it, so that I can get out of jail.

Peter Neufeld:

That contradicts the position they took in the — in the State court, Your Honor.

They specifically said in the State courts that it is not enough to simply assert one’s innocence; that you actually have to have proofs, facts that — that demonstrate your innocence before you get to that discovery.

It is a Catch-22 situation.

Ruth Bader Ginsburg:

Well, we can ask your opposite, opposing counsel.

We can put it to him point blank.

That’s what I thought he said, and we — we certainly will clarify that.

But there’s another possible impediment here to your claim.

If we assume that there is this constitutional right, and it’s available in 1983, this trial was in 1993.

He brings the 1983 action in 2003.

Counsel told us that this better method of testing has been available since the late nineties.

With any constitutional right, there’s an obligation of due diligence on the part of the claimant.

You can’t come in 10 years later, for example, and say — say there was a tainted juror or something like that.

It was — it — when you’re claiming even evidence that wasn’t available at the trial, you have to make the application with due diligence.

Peter Neufeld:

I agree with that, Your Honor.

I mean, not only is Alaska not making a claim that he did not act with due diligence here, but they’re not doing — they’re making that claim for a reason.

As soon as he finished his direct appeal, he immediately filed a pro se petition seeking postconviction DNA testing, within months.

And then — in the late 1990s.

And then eventually he was assigned a public defender to represent him, and that led to the 2001 filing in the State court which predated the 2003 filing in the Federal court.

So he’s moved as quickly as he possibly could as soon as he knew that there was this powerful evidence that could be dispositive.

This is the very first case litigated to our knowledge anywhere in the country where the prosecutor concedes that a DNA would be absolutely slam-dunk dispositive of innocence, but doesn’t consent to it.

Antonin Scalia:

You know, it is very strange.

Why did they do that, I wonder?

Peter Neufeld:

Well it’s very–

Antonin Scalia:

There was a lot of other evidence in the case, wasn’t there?

Peter Neufeld:

–Well, that’s–

Antonin Scalia:

I don’t know what they thought they were doing.

Peter Neufeld:

–10 — 10 years ago, Justice Scalia, the U.S. Department of Justice articulated a materiality test for DNA testing; and they said, like you’re saying: Yes, let’s look at the evidence of guilt; but then let’s say to ourselves, looking out of the other eye, what if there’s a favorable results?

What impact would that have on the favorable results?

That was the position adopted by the United States Department of Justice 10 years ago.

That was the position, of course, that we’re urging here.

That was the position adopted by the U.S. Congress five years ago, and that materiality test has been adopted by 41 States to date.

John G. Roberts, Jr.:

So if it is so clear–

Peter Neufeld:

Only Alaska–

John G. Roberts, Jr.:

–Sorry, counsel.

If it is so clear that this is the right way to go, that the Federal Government, 41 States — does it make sense for us to devise a constitutional right to displace what the legislatures have done?

Peter Neufeld:

–It is not a question of displacing what the legislatures have done, Mr. Chief Justice.

It is a question of when the State of Alaska chooses to provide a mechanism for postconviction relief — and here they do.

John G. Roberts, Jr.:

It is exactly a question of displacing what the States have done, because now this question is going to be subject to constitutional law and it’s going to be litigated in a variety of cases with a variety of claims.

Do you get the right to it when you’ve confessed?

Do you get the right to it when you’ve waived it at trial?

Do you get the continuous right to it as technology advances and makes the test more sensitive?

All of those matters will be Federal constitutional questions for us to decide.

Peter Neufeld:

I don’t think necessarily, Your Honor.

I think first of all, here we have a clean slate if you will, because there were no mechanisms passed by the Alaska legislature.

We have seen, and which is interesting, we actually think the Innocence Protection Act as passed by Congress is a marvelous statute that no one is — is questioning one bit.

It is odd that the Solicitor General walks into this courtroom and asks this Court to adopt a materiality test that was rejected by Congress.

The one that we are asking for here is simply that you look at the evidence, the evidence of guilt that Justice Scalia pointed out–

John G. Roberts, Jr.:

Well, but the whole question — it is kind of along the same lines I’ve been talking.

The reason they’re might — they’re saying don’t adopt that test is because the question is whether it should be adopted as a matter of constitutional law.

They may, and I suspect they do since they represent the government, think Congress’s balancing is — makes perfect sense.

It is a different question here.

Peter Neufeld:

–Well, I agree with you.

Our position is, is that the test that they’re calling for here is irrational; that it’s completely irrational when you have something as powerful and new as DNA evidence, which can conclusively — unlike any other forensic discipline that–

John G. Roberts, Jr.:

So, just to get back to the point you were making earlier, it really doesn’t matter what the Congress said.

It is a question of rationality under the Constitution.

Peter Neufeld:

–That is — that is correct.

I only use what Congress said and what the other 41 states said to illustrate how there is an overwhelming consensus now that to do it the way that Alaska wants to do it is frankly irrational.

David H. Souter:

Is the irrationality ultimately that they require a — an assertion, with some basis for the assertion, that in fact there is evidence that would show innocence?

Is the irrationality the cart before the horse?

Peter Neufeld:

I think I understand the question.

David H. Souter:

Well, you were–

Peter Neufeld:

Please interrupt me if I don’t and I apologize.

David H. Souter:

–I’ll put it quickly.

You — you were asked a question earlier what it was in effect about the Alaska procedure which — which in effect was — was constitutionally frustrating.

I understood that you did not claim that the requirement to claim innocence was the problem, although they did require that; but that the — that the real problem was that you not only had to claim innocence; you had to be in a position to claim that the evidence you were seeking would exonerate you.

And in the DNA case you couldn’t do that, ultimately, until it had been tested.

And so it was that second point, in effect that they are putting the cart before the horse — tell us what the test is going to show before you test it — that I thought was the sticking point for you.

Am I correct about your position?

Peter Neufeld:

You are correct; and Justice Souter, they never, ever said in — in their brief, in their petition for certiorari, that they believed that a condition for getting the test should be that a person swear out an affidavit asserting innocence.

They are raising that now in a reply brief a week before this oral argument.

David H. Souter:

Well, that — that goes — that goes to the first point.

Peter Neufeld:

Yes.

David H. Souter:

And I — I was concerned with the second.

I will be happy to get back to the first, but I just want to know your position on the second, the cart before the horse point.

Peter Neufeld:

The second point is — and that — which is why the only rational test is — the Catch-22 or cart before the horse that you’re referring to — which is we can’t speculate, based on the other evidence, whether it’s going to be a DNA exclusion or a DNA inclusion.

If you look at the amicus briefs that have been submitted here by exonerees, by people who received clemency, all kinds of people, you will see cases where the evidence of guilt was much more overwhelming than it was here.

You will see cases where 50 percent of the judges that reviewed those cases found the evidence to be very compelling evidence of guilt or indeed overwhelming evidence of guilt, but nonetheless DNA trumped all that evidence and excluded those.

Antonin Scalia:

And you will see cases where the defendant maintained that the defendant was innocent.

Now, whether this was a requirement imposed by Alaska or not, it seems to me you cannot point to the practice of the other States and say Alaska must have the same practice — when, in fact, you don’t comply with the practices of the other States.

Almost all of them do require an assertion of innocence, which — which your client has not made.

I — I cannot imagine how you can simply — oh, look at all these other — 44 other states, when your client does not meet the requirements that those States would impose.

Peter Neufeld:

I’m not ignoring it at all; I’m simply saying that 1983, by its very nature, doesn’t require it, and Alaska practice–

David H. Souter:

Why shouldn’t–

Peter Neufeld:

–didn’t require it, but if you do–

David H. Souter:

–Whether 1983 requires it depends in part on whether we recognize a free-standing right to test DNA evidence.

David H. Souter:

As I — as I conceive it, that sounds to me like substantive due process and rightly so.

One condition for recognizing a substantive due process right could be that the individual claiming the right to test claims that he is actually innocent.

What would be unreasonable about that?

Peter Neufeld:

–There would — nothing would be unreasonable about that, Your Honor.

David H. Souter:

Is your client prepared to make that claim?

Peter Neufeld:

Your Honor, I assume he certainly would.

I–

David H. Souter:

Well, I’m not asking you.

I’m asking for his position through counsel now.

Do you know?

Peter Neufeld:

–I know he has told every other lawyer who has represented him that he was actually innocent.

I–

John G. Roberts, Jr.:

Was his assertion before the — his confession — his confessions before the parole board made under oath?

Peter Neufeld:

–I believe it was made under oath, Your Honor–

John G. Roberts, Jr.:

So he’s guilty of perjury one way or the other, either before the parole board or in his assertions of actual innocence here.

Peter Neufeld:

–Well, wouldn’t it be ironic, Your Honor, if we do the DNA test and he’s exonerated and it proves he didn’t do it at all, that then the State went ahead and prosecuted him for perjury because he did something just so he knew he could get out because, under Alaskan law, unless you accept responsibility, you’re not going to get out.

John G. Roberts, Jr.:

Well, wouldn’t it be ironic–

Peter Neufeld:

Two of our–

John G. Roberts, Jr.:

–Excuse me, counsel.

Would it be ironic to say that you do not have access when you’re guilty of perjury one way or the other?

Peter Neufeld:

–I think that would be terrible.

If the — if the primary goal of our criminal justice system, or one of them, is that someone who is actually innocent of the crime for which he is serving a sentence can’t — okay — present the evidence that will win him his freedom.

He–

Stephen G. Breyer:

Could you say this — could you say, suppose — I’m just testing this out — that like any other governmental action, this action of refusing the DNA evidence is subject to the Fourteenth Amendment’s requirement that there be a reasonable basis?

Can’t be arbitrary.

Now, withholding DNA is a governmental action, and so you cannot do so arbitrarily.

If you were to do so simply because the defendant would not sign a new complaint under this new procedure, which I somehow missed in the reply brief, that’s a good basis for withholding it.

He should be willing to do that.

If the reason they won’t give him the DNA is because before the parole board he said he was innocent — ha !

That, to me — not to others, but to me — that would mean nothing.

Stephen G. Breyer:

Of course, he’s going to say he’s innocent.

He doesn’t want to spend the rest of his life in prison.

So, I — I would say, but not maybe others would say, that if that’s their reason for not giving it, I’d hear further argument, but that would be arbitrary.

But if their reason for not giving it is just because he won’t file a new piece of paper in which he says he’s innocent where there’s nothing to lose there, then I think the State’s being arbitrary.

Okay?

Suppose we said that: The rule is non-arbitrary, with illustrations, send it back to the States.

And of course when they apply their own statutes, by and large they’re not being arbitrary.

Peter Neufeld:

–I think that’s a very sound approach to this, Justice Breyer.

Stephen G. Breyer:

Well, it does help you win.

[Laughter]

Peter Neufeld:

It has that added advantage, Justice Breyer.

[Laughter]

Stephen G. Breyer:

Yes.

Peter Neufeld:

But — but, quite honestly, we’ve had two exonerees that are pointed out in the prosecutors’ brief and in the exonerees’ brief who did in fact that.

They actually said to the parole board, yes, they were guilty, because they knew that was the only way they could get out.

And then the DNA testing was done a couple of years later and, boom, it turned out they were completely innocent.

John G. Roberts, Jr.:

Would you have a–

Samuel A. Alito, Jr.:

For — sorry.

John G. Roberts, Jr.:

–Would you have a constitutional right to the DNA evidence if the accuracy of the test was the same as the one that your counsel submitted at trial?

Peter Neufeld:

Well–

John G. Roberts, Jr.:

In other words, limits it to — what was it — 16 percent or something like that?

Peter Neufeld:

–I think you would — probably because number — number one–

John G. Roberts, Jr.:

Well, all right.

Then, obviously, the next question is at what level of accuracy does your constitutional right no longer apply?

Peter Neufeld:

–Well, the constitutional right doesn’t apply with a — with a level of accuracy.

The constitutional right applies in prohibiting the State from arbitrarily preventing you access to the evidence.

There’s a very compelling record–

John G. Roberts, Jr.:

Well, just so to follow up on that.

So you — if — if the evidence showed that there was — it would show that there was a one out of two chance that your client was innocent, then you think you still have a right — a constitutional right of access to that evidence?

Peter Neufeld:

–No, I think the reason you have it here, Your Honor, is that Alaska concedes — I mean, when have you ever heard it before in a case?

Peter Neufeld:

Alaska concedes that this powerful DNA test is so powerful that if he gets a favorable result, it is dispositive, he is actually innocent.

Okay.

That’s how powerful this is.

And so when you try and compare this to other types of either earlier DNA or other types of scientific evidence, you can’t.

And it’s because of the unique power of these STRs, and the CODIS system, which allows for cold hits.

So, it’s not just the 232 people who have been exonerated.

We’ve also identified in–

John G. Roberts, Jr.:

So fingerprint — fingerprints apparently are covered by it.

They have fingerprint evidence that they are not releasing.

So do you have a constitutional right of access to that evidence?

Peter Neufeld:

–Well, I know it’s slightly outside the record, but just this week the National Academy of Science said that fingerprints don’t have the same indicia of reliability that these DNA tests have.

John G. Roberts, Jr.:

No, I’m sure–

Peter Neufeld:

And–

John G. Roberts, Jr.:

–I’m sure they’re not as accurate as the DNA tests.

I’m trying to figure out what the limit of the constitutional right you’re asserting is.

Peter Neufeld:

–The limit is — the limit is — it’s the same limit, if you will, that the Innocence Protection Act articulated — and at least 41 of the States that passed statutes articulated, and by common law the other States all gave DNA testing, the ones that didn’t have a statute, with the sole exception in the country being Alaska — is, if there’s either a reasonable probability that the DNA tests will — that a favorable DNA test result can prove innocence, okay, and you did not — you know — that’s the standard, if you will, okay, to get the test.

I would point out that I could understand people having some disagreement about where that bar should be in terms of how much proof of innocence the test would provide.

Samuel A. Alito, Jr.:

How can this constitutional right be limited just to DNA evidence?

I presume that there are — there may be other scientific advances in the testing of physical evidence, and if that happens, why wouldn’t the right apply to those as well?

Peter Neufeld:

I hope–

Samuel A. Alito, Jr.:

Advances in — advances in detecting fingerprints or testing fibers or all sorts of other things.

Peter Neufeld:

–Well, again, fibers didn’t do any better than fingerprints.

In fact, they did a lot worse in the National Academy report issued last week.

I do think, however — and I would hope that the day comes that will be more truth machines like DNA, which will make it easier for factfinders to have dispositive evidence of guilt or innocence.

But right now, there’s only one test that caused the President of the United States to appropriate billions of dollars for testing, that caused Congress to create a special statute saying, we don’t even want this in habeas; we want this statute to be very special.

We’d like to give people–

Samuel A. Alito, Jr.:

I’d like to get back to the second part of the question I asked at the start, which you never really got a chance to answer.

Would it be unconstitutional for a State to say that a — a prisoner can get postconviction access to DNA evidence, but not where it appears that the prisoner is gaming the system?

Not where the prisoner declined at trial to ask for DNA testing for a tactical reason because there was a chance that the DNA evidence would be inculpatory?

Would that be unconstitutional?

Peter Neufeld:

–Well, first of all, in this case, that didn’t happen.

The record is very clear that he personally requested the DNA testing, and–

Antonin Scalia:

His counsel — his counsel forwent the DNA testing, and we attribute the actions of counsel to the defendant.

Peter Neufeld:

–And the prosecutor also forwent the DNA testing because they–

Anthony M. Kennedy:

But can we get an answer to Justice Alito’s question?

A hypothetical, the one he put: Could you put that condition on a statute or a rule consistently with the Constitution of the United States?

Peter Neufeld:

–I don’t think so, if you — if you couch it in the loosest terms that Justice Alito did, namely, “gaming the system”.

Because I don’t believe a person in Mr. Osborne’s position could ever be gaming the system.

And let me explain why so–

Anthony M. Kennedy:

Well — well, let’s assume that counsel and the defendant — after full discussion and being fully advised, say this is too dangerous; we don’t want the DNA test; we’ll shoot the dice; we’re not going to have the DNA test.

He loses.

Can you then get the DNA test?

Or, as Justice Alito’s question pointed out, could you have a condition that when you’ve made this conscious choice, you lost your right for later DNA testing?

That’s what he asked, and I still don’t have the answer.

Peter Neufeld:

–Okay.

I would say, yes, in much the same way that the Innocence Protection Act says if a defendant expressly and voluntarily waives on the record a right to that DNA testing, because it is so fundamental because it goes right to the core of everything, innocence versus guilt, then it would not be unreasonable to prohibit him from having the DNA test.

But that was–

John G. Roberts, Jr.:

Sorry.

I’m sorry.

With the different questions, I have lost where the answer is.

You say it is still part of the constitutional right if he forewent the test at trial, or it is not?

Peter Neufeld:

–What I’m saying is it would not be an unconstitutional restriction, like the Innocence Protection Act, if the State of Alaska required — which it does not now because there is no legislative scheme, but in the future required — that the — a defendant who doesn’t want DNA testing has to voluntarily and explicitly waive that on the record.

That — the voluntary and knowing waiver is a requirement in the IPA, and if — and if Alaska did something like that, I think that would be — that would not be irrational.

However, I must point out in all honesty that there are a number of people who are mentioned in the exonerating briefs such as Eduardo Velasquez and Mr. Tomey, whose lawyers did just that.

They said, for strategic reasons, we don’t want the DNA test.

And then — boom — years later they get the DNA test, and they are completely exonerated.

So–

Anthony M. Kennedy:

Well, you seem to be sympathetic to that position.

But as Justice Alito’s question again points out, what you are doing is setting up a game in which it would be really unwise to have the DNA test.

Take your chances.

Peter Neufeld:

–Why would it–

Anthony M. Kennedy:

You have a — you have a built-in — you have a — a built-in second chance.

Peter Neufeld:

–Let’s for a moment–

Anthony M. Kennedy:

And that’s just — that’s just not sound trial strategy, counsel, and you know that.

Peter Neufeld:

–Justice Kennedy, let’s for a moment think about it in a purely logical way.

If someone is innocent and wants to have a DNA test — okay?

As Mr. Osborne did, they will do what they can to try and get that DNA test.

If they get the DNA test years later, they’re not getting a new hearing.

They are not getting a vacatur; they are not getting a new trial.

They are not getting any of the other things that this Court often is worried about.

All they are getting is a darned test.

And they stay in prison while they get that darned test.

And if that test shows that they actually committed the crime — okay — if it shows they committed the crime, then they get nothing.

Not only do they get nothing, they get punished.

They get punished because no — no court in habeas or in any other postconviction relief will ever think about them again.

Antonin Scalia:

But they will–

Peter Neufeld:

And, in fact, the parole board will–

Antonin Scalia:

–But they 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 testing, there was a chance the jury might let them off.

Had they asked for it then, and had it shown conclusively, the game was over.

So it is gaming the system.

Peter Neufeld:

–Well, the reason why I — I don’t believe it is gaming the system — and perhaps, you know, you can help me with this — is if he’s getting the test now and he doesn’t get out of prison while he’s having the test and he’s actually using his own money to pay for the test, and if the test shows he’s guilty, the parole board is going to turn him down.

He can’t go back into any other courts asking for any other remedies.

So he is in a much worse position.

On the other hand, if it proves he’s innocent, then he’s out.

So how does that game the system?

Antonin Scalia:

Ex ante.

We’re — we’re looking at it at the time of the trial.

Does it pay for the defendant to ask for a DNA test?

Well, of course, it doesn’t.

Antonin Scalia:

Because if he asks for it and it — it finds that he’s guilty, that’s the end of it.

There is no chance of the jury acquitting him.

Peter Neufeld:

Well — well, why–

Antonin Scalia:

So why not just not ask for it and if it turns out that the jury happens to convict him anyway, then ask for it?

Peter Neufeld:

–In all practice, it is a moot point.

Because this is a transitional right for a very small group of people who were tried during the 1980s and early 1990s.

Anthony M. Kennedy:

On that — on that point, I just want to make clear: In the present posture of this case, I take it that if the Federal Innocence Protection Act applied, he would not qualify?

Peter Neufeld:

No.

He would — he would qualify.

Anthony M. Kennedy:

He would qualify.

Peter Neufeld:

All he would have to do is — is go back and actually swear out a declaration under penalty of perjury–

Anthony M. Kennedy:

No, no — well, but — but as the case now stands he does not qualify.

Peter Neufeld:

–Well, he’s never been required to do that or asked to do that.

Anthony M. Kennedy:

As the case now stands, he does not qualify.

Peter Neufeld:

Other than — other than that, he meets every single other criterion.

Antonin Scalia:

That’s a biggie, though.

Anthony M. Kennedy:

So you’re — you’re, in effect, asking us — and you say the — the Solicitor General appears here — you’re — you’re, in effect, asking us to say that the Federal Witness Protection Act on these facts is unconstitutional.

Peter Neufeld:

Oh, not at — not at all, sir.

All I’m saying is that if he was on notice that that was required as part of the procedure in Alaska, then no doubt he would sign that affidavit even under penalty of perjury.

The problem is that it’s not a requirement of 1983, and there was no legislative scheme.

I assure — you know–

Antonin Scalia:

I am quite dubious that — that he would indeed sign it.

I — I was really struck by his affidavit in this case, number — paragraph 9 of which says:

“I have no doubt whatsoever that retesting of the condom will prove once and for all time. “

–and one expects to follow — my innocence.

That’s not what it says.

“Will prove once and for all time either my guilt or innocence. “

Peter Neufeld:

–Your Honor —-

[Laughter]

Antonin Scalia:

I mean, you know, what is this?

Peter Neufeld:

Well, first of all, each and every time with his own counsel, Justice Scalia, he was adamant about asserting his innocence.

You have to appreciate that at this point in time, when there’s a discussion about, you know, what a prize — and it is our position that this action ends, if you will, okay, if the Court grants him access to the evidence under 1983.

And as was pointed out earlier during the argument of my adversary, there is a possibility that — that the testing — because, look, I wasn’t at the — at the commission of the crime.

I don’t have a videotape in my head.

I’m trying to be as honest and forthright with you as I possibly can.

John G. Roberts, Jr.:

What if there was a videotape?

Is that covered by the constitutional right you are asserting?

Peter Neufeld:

I — well, you know, given what I now know about–

John G. Roberts, Jr.:

Or photographs or other evidence that–

Peter Neufeld:

–I don’t think so.

Given what I now know about Photo Shop, I don’t have —-

[Laughter]

–I don’t necessarily hold out that much reliability for that either, Justice Roberts.

John G. Roberts, Jr.:

–That’s a good point.

What — how long under the Constitution does the State have to retain this evidence?

Peter Neufeld:

Under the Constitution there is no duty under current law to preserve the evidence.

We–

John G. Roberts, Jr.:

Would that be a corollary of the constitutional right you are asking for here?

Peter Neufeld:

–I don’t believe so.

I — however, with one caveat.

And the one caveat is it is a different situation if a person like Mr. Osborne or somebody else specifically says, I want to do DNA testing in this case, files whatever appropriate procedure in whatever court to commence that action, and then, and only then, the other side goes out and destroys the res that is the subject of that litigation.

At that point I think that would be in bad faith.

John G. Roberts, Jr.:

No.

I agree that would be — that — yes.

I am just wondering if there would be any objection to an absolute rule that says what — after two years, after one year of conviction?

Peter Neufeld:

No — no objection.

But on a practical level again, what we’re seeing is that States all over the country want to preserve this evidence, not just for the wrongful conviction cases but also to enable detectives who are working cold cases to have access to evidence.

And if the evidence isn’t there any more, they can’t work them.

So we’re seeing a movement across the country now to preserve that evidence.

Anthony M. Kennedy:

May I — may I just ask one point?

Peter Neufeld:

Certainly.

Anthony M. Kennedy:

I take it he is not now in custody for this offense?

Peter Neufeld:

I believe he is in custody–

Anthony M. Kennedy:

Not for this offense?

Peter Neufeld:

–Well, I — I think what happened is — and I — and I — I can’t swear to this — is — is he was — he got a conditional release on the other matter.

And then the conditional release was violated as well.

Anthony M. Kennedy:

He’s being held on other charges.

Peter Neufeld:

That’s right.

Anthony M. Kennedy:

But he’s not now in custody for this offense.

Peter Neufeld:

He’s — he’s not, but I don’t think that would make a difference in the outcome.

Certainly, if a person had a death warrant in one State and then they were charged in another State, they would still have a liberty interest in the outcome of that other case.

John G. Roberts, Jr.:

Was he released on parole with respect to this offense?

Peter Neufeld:

I — I believe he — he was released on what’s called conditional release.

John G. Roberts, Jr.:

And was his confession a necessary predicate to that release?

Peter Neufeld:

Well, under Alaska law one of the key requirements to get parole is that you accept responsibility for the crime.

And so without a certain–

John G. Roberts, Jr.:

So a confession that would be perjurious if he claimed actual innocence now was responsible for his release?

Peter Neufeld:

–I would hope, Mr. Chief Justice, that I would be principled enough that if I was actually innocent and they told me that the only way I could get out was to say I committed a crime, that I might say:

“Forget it. “

“I’ll spend the next thirty years in prison. “

But I can certainly understand–

John G. Roberts, Jr.:

No, I understand — I understand that.

Peter Neufeld:

–Yes.

John G. Roberts, Jr.:

But he’s been — other than other crimes he committed, he’s been released on the basis of what you say is an unprincipled confession.

And now he is–

Peter Neufeld:

I believe he has been — he’s back in, though, I think, because of the conditional release.

It’s been violated.

One second.

He had a parole — I’m — I’m told that he had a parole revocation hearing on the other case and that he was given six more years to serve on the — on the underlying case which is the core of this oral argument.

John G. Roberts, Jr.:

–So his parole was revoked because he committed another offense?

Peter Neufeld:

That’s my understanding.

John G. Roberts, Jr.:

Okay.

Thank you, counsel.

Peter Neufeld:

Thank you very much.

John G. Roberts, Jr.:

Counsel, we’ll give you three more minutes.

Kenneth M. Rosenstein:

Three minutes, Your Honor?

John Paul Stevens:

May I — before you start, would you — I want you to clear up the question that Justice Breyer asked.

Assume that on remand he would now make the declaration under perjury that he’s innocent.

I understood you to say that would enable him to get discovery, but not necessarily to say he would get the DNA evidence.

Am I right?

Kenneth M. Rosenstein:

If he were to file a new application for postconviction relief with an affidavit that the civil rules of discovery would apply, and he, I believe, would be — be able to obtain the evidence that he seeks.

However–

Ruth Bader Ginsburg:

How about–

Anthony M. Kennedy:

Would you resist that request?

Kenneth M. Rosenstein:

–Well, there are — there are possibilities of procedural default.

But — and that would be for the court–

Anthony M. Kennedy:

You cannot confirm that you would acquiesce and recommend that he get the DNA sample under those conditions?

Kenneth M. Rosenstein:

–I — yes.

I — I believe I could.

Antonin Scalia:

Well, you would still want to leave yourself open to make the objection that he had a chance to get this at trial and — and — and decided not to get it.

Kenneth M. Rosenstein:

As I say–

Antonin Scalia:

Wouldn’t those objections continue to apply?

Kenneth M. Rosenstein:

–I’m–

Antonin Scalia:

I mean, it — it seems to me that — that all — all that you have to concede is that there is some means for him to get into court, with those — those exceptions that other States make; and other States do make an exception for gaming the system.

So, so long as he can get in in habeas corpus it seems to me you can very well leave for later whether you are going to concede that even though — even though he didn’t ask for it at trial, he can get it now.

Kenneth M. Rosenstein:

–That’s true, Your Honor.

And — and that was–

Antonin Scalia:

Well, why give it away?

Kenneth M. Rosenstein:

–Well–

Antonin Scalia:

–any more than you gave away the fact that this is going to is going to prove his innocence–

John Paul Stevens:

Why don’t–

Stephen G. Breyer:

We would like to know what you do–

John G. Roberts, Jr.:

Why don’t we do it — I’m sorry.

Justice Stevens.

John Paul Stevens:

–Yes.

I just want to be sure.

Your answer, as I understand it, is he can now apply for discovery, but you don’t know what will happen then.

Kenneth M. Rosenstein:

–Well, before you reach the discovery issues there would be the issues of procedural default.

John Paul Stevens:

Right.

Kenneth M. Rosenstein:

Once those were cleared away then he would be able to–

John Paul Stevens:

But the net result is that it is perfectly clear to me from the argument that you have not conceded that if he now files the paper, he will definitely get the DNA.

Kenneth M. Rosenstein:

–Not that he would — that’s correct.

Not that he will definitely get that.

John Paul Stevens:

Okay.

Kenneth M. Rosenstein:

I want to clear up–

Ruth Bader Ginsburg:

–But you — you referred to the civil rules, and in discovery, in criminal cases as in civil cases, it — ordinarily you have to prove that you have a basis for a claim.

Like you don’t get on the civil side discovery before you can pass the 12(b)(6) threshold that you have stated a claim.

Are you giving that up here?

Because he’s seeking the discovery but he hasn’t established that he has a tenable claim.

Kenneth M. Rosenstein:

–Justice Ginsburg, Mr. Osborne, by filing an affidavit that would accompany his application, that would — I think that would operate to state a claim.

Anthony M. Kennedy:

Would there be instances when you, as the Attorney General of Alaska, would waive procedural defaults, in order to determine if there was guilt or innocence in a case where DNA conclusively proved it, simply because of your interest in not confining innocent people?

Kenneth M. Rosenstein:

That — that’s conceivable, Your Honor; but in — in Mr. Osborne’s case, he’s had 14 years to step forward and declare his innocence, as any truly innocent–

Anthony M. Kennedy:

All you can say in answer to my question, as to your particular approach to your duties here, is that that’s conceivable?

Kenneth M. Rosenstein:

–Yes, Your Honor.

It — it is.

Because I don’t think that the mere existence of the possibility that DNA could exonerate is necessarily sufficient — a sufficient basis to then do the testing.

Stephen G. Breyer:

–Okay.

This is where I — look.

He files a new piece of paper.

Now, if you’re going to oppose that, on the ground that it wasn’t procedurally correct, one; on the ground, two, he didn’t ask for this DNA at trial, though he might have; met with the charge, what was at issue at trial is something very different; three, that he wasn’t guilty — you know, too much evidence against him, met with the claim, there wasn’t much evidence against him — okay, we have the case in front of us; we’ll decide it.

Stephen G. Breyer:

But if you’re prepared to concede,

“I’m not going to raise those things. “

then their client has what he wants — the DNA.

So which is it?

Kenneth M. Rosenstein:

I — I’m not sure I understand your — your question, Your Honor.

I’m sorry.

Stephen G. Breyer:

I want to just repeat it.

I — he — his client follows your procedure: DNA> [“].

Now will you give it to him?

Or are you going to meet him with the same defenses that you raise here?

Kenneth M. Rosenstein:

The–

Stephen G. Breyer:

Wrong procedure.

You ask — you could have gotten it at trial, which he says isn’t true — and there was too much evidence, which he says isn’t true.

Okay?

So what are we going to have, Mr. Rosenstein?

Kenneth M. Rosenstein:

–If he — if he were to do as you say, then with respect to a — the request for discovery, I believe that our only defense would be the procedural defense of — you know — lack of due diligence or — or something along — or untimely–

Stephen G. Breyer:

If the only defense is procedure–

David H. Souter:

–that defense–

Kenneth M. Rosenstein:

–Pardon me?

David H. Souter:

–If he walks into court and swears,

“I am innocent, subject to penalties of perjury. “

“Please let me look at the DNA. “

as I understand your answer, your answer will be,

“we will then raise issues of procedural default, waiver. “

et cetera.

You will not say, on the contrary:

“Let him look at the DNA. “

Is that — is my understanding correct?

Kenneth M. Rosenstein:

I — I can’t say that we would actually do that, but we certainly have the — the right to do that.

And there’s nothing wrong with proceeding–

David H. Souter:

In any–

Kenneth M. Rosenstein:

–Thank you.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.