The Curse of Bad Facts

I don't usually find myself standing up for the conservative wing of the Supreme Court, but the uproar over a decision from yesterday makes me do it. Sort of.

Yesterday, the Court by a typical 5-4 vote, held that there is no due process right to post-conviction DNA testing. The case involved William Osborne, who was convicted of rape in Alaska years ago. Part of the evidence in the case was was condom worn during the attack that contained semen and, therefore, DNA. The rather primitive testing method used by investigators at the time wasn't really conclusive either way as to guilt or innocence. Now Osborne wants the sample tested again, using more accurate and sophisticated testing.

But, as they say, that's not all. This case is a perfect example of why facts matter on appeal. Appeals are supposed to be all about the law, but that's rarely the case. The Supreme Court (and any other court in the United States, for that matter) doesn't decide broad issues, it resolves discrete disputes in individual cases. The procedural facts in this case made it difficult for the Court to tee up a new constitutional right.

For one thing, there was a considerable amount of evidence against Osborne. So much so that when presented with the opportunity for some more advanced DNA testing prior to trial, his attorney declined, on the theory that it would be inculpatory. Another problem is that Osborne admitted his guilt during a parole hearing, under penalty of perjury. It's thus difficult for him now to assert his innocence (which, IIRC, would get him access to the DNA in Alaska state court). The whole parole thing is further complicated by the fact that Osborne did, in fact, later get parole, violated, and is back in prison.

In other words, Osborne does not have the kind of case where he can walk into court and say, "I'm an innocent man, convicted of a crime I didn't commit, and need this evidence to prove it." Bad facts, as Dan Markel points out, make tough cases. Folks should consider that when ripping the Court for this decision.

Which isn't to say the Court got this one right. But it's easier to see why it might have gotten right than it is to figure out why the Alaska DA won't turn over the sample for testing at Osborne's expense. After all, what does he have to lose?