The solicitor general's office has turned down a request by the Innocence Project to disavow a Bush Administration stance on prisoners' access to DNA evidence in postconviction proceedings. As a result, on March 2, Neal Katyal will make his debut as deputy solicitor general by arguing before the Supreme Court in support of the state of Alaska's view that prisoners have no constitutional right to obtain DNA evidence that might help them prove their innocence -- even if the prisoners pay for the DNA testing themselves. The case is District Attorney's Office for the Third Judicial District v. Osborne.
The decision to maintain the same position as the Bush Administration in the case has caused deep disappointment among innocence advocates, especially in light of President Barack Obama's strong support of access to DNA evidence while a state senator in Illinois, where many of the early successes in exonerating innocent inmates through DNA evidence took place.
The episode also highlights the tension between the eagerness of interest groups for a new administration to change direction, and the institutional reluctance in the solicitor general's office to shift gears too suddenly, for fear of losing credibility with the high court. We wrote about this tension here earlier this month.
"We recognize that the Justice Department strives to maintain consistent positions after a transition in most cases," says Nina Morrison, a staff attorney with the Innocence Project, which represents the prisoner in the Alaska case."We believe that the position filed by the Bush Administration is so extreme as to make this one of the rare cases that warrants a change in position."
Stanford Law School professor Larry Marshall, who led the Illinois project that researched and helped exonerate Illinois inmates, says the Bush Administration brief, filed in January just days before Obama took office, "stakes out an unprecedented legal position that is diametrically opposed to the views and values upon which President Obama campaigned." Marshall also says Obama displayed "extraordinary leadership" in Illinois in aiding efforts to exonerate the innocent, and he actively supported legislation that would give inmates access to DNA evidence.
Katyal declined comment, but he has been listed as arguing in the case along with Alaska assistant attorney general Kenneth Rosenstein on March 2, and no new brief has been filed. It is conceivable that at oral argument, Katyal could distance himself or downplay some aspects of the brief, but it would be unlikely that he would rise to disavow the Bush position altogether. Arguing for the defendant will be Peter Neufeld, co-founder of the Innocence Project.
Defendant William Osborne was convicted of sexual assault and kidnaping in the death of a prostitute in Anchorage in 1993. At trial, his lawyer did not seek DNA testing of semen in a condom at the scene of the crime. In postconviction appeals, Alaska courts said he was not entitled to DNA evidence for testing at that point. The U.S. Court of Appeals for the 9th Circuit reversed, and Alaska appealed to the Supreme Court.
The Bush Administration was not required to file a brief, but did so in part based on the possible impact of a ruling in the case on federal law, which allows postconviction access to DNA evidence if 10 conditions are met. The brief noted that Brady v. Maryland, which requires prosecutors to inform the defense of possibly exculpatory evidence, constitutes a pre-conviction, not postconviction right. It also urges the Court to allow a "vibrant democratic process" to continue in Congress and among the states in working out the best way to proceed with DNA evidence.