‘Unusually Engaged’ Justices Appear Split on Inmate Right to DNA Test

Liberals and conservatives on the U.S. Supreme Court appeared divided yesterday on whether a convict has a constitutional right to a DNA test of evidence, leaving Justice Anthony M. Kennedy once again as the man in the middle.

Kennedy appeared at times to agree with both sides during oral arguments, the Washington Post reports. On the one hand, Kennedy agreed that inmates could try to game the system, seeking to reopen a case for a DNA test if they lose at trial. On the other, he expressed concern about letting prosecutors make the decision on whether to allow DNA tests.

After the argument, the outcome was unclear, the New York Times reports. “The justices were unusually engaged in the argument, and they twice kept advocates at the lectern after their time was up,” the story says. “But it was not at all clear where the court stood on the larger question of whether there is a constitutional right to post-conviction DNA testing or the more immediate one of whether this case was a good vehicle for deciding the question.”

Six states have no laws providing for DNA testing in criminal cases, according to the Associated Press. They are Alaska, Alabama, Massachusetts, Oklahoma, Mississippi and South Dakota. In other states, laws limit testing to capital crimes or bar tests for those who confess.

In the Alaska case before the court, the inmate seeking the test had confessed to the rape of a prostitute to win parole; his conviction for another crime has put him back in prison. Justice Antonin Scalia said he was struck by an affidavit offered by the inmate, William Osborne, according to the Post account.

Reading from the affidavit, Scalia said: " '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.' "

"I mean, you know, what is this?" Scalia said.

The case is District Attorney's Office v. Osborne.