- The Washington Times - Tuesday, March 3, 2009

The Supreme Court’s conservative and liberal justices appeared divided Monday about giving convicts a constitutional right to test DNA evidence, which for 232 people has meant exoneration years after they were found guilty.

The issue arose in the case of William Osborne, who was convicted of a brutal attack on a prostitute in Alaska 16 years ago. He won a federal appeals court ruling granting him access to a blue condom that was used during the attack. Testing its contents would firmly establish his innocence or guilt, says Osborne, who has admitted his guilt in a bid for parole.

On the one hand, the court’s four liberal justices seemed to be in general agreement that prosecutors should open their evidence lockers when they contain genetic material that could reveal whether someone has been wrongly imprisoned. The numbers wouldn’t be very large, Justice John Paul Stevens said.

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On the other hand, the four conservatives were wary of deciding to allow DNA testing so broadly that “it appears that the prisoner is gaming the system,” as Justice Samuel A. Alito Jr. said. Convicts who pass up the chance to have genetic testing done at trial, as Osborne did, or who do not declare under oath that they are innocent could fall within Justice Alito’s description.

Since all but a handful of states and the federal government already have laws that provide for tests, Chief Justice John G. Roberts Jr. wondered whether there is any reason for the court to step in.

In the middle, as he often is, was Justice Anthony M. Kennedy. Justice Kennedy seemed willing to accept that any right to a DNA test would have to follow a claim of innocence, made under penalty of perjury. Yet he also was frustrated by the refusal of Alaska’s Assistant Attorney General Kenneth Rosenstein to say that Osborne could get what he wants if he swears to his innocence.

The Obama administration, picking up the argument first made by the Bush administration, urged the court to reject the appeals court ruling.

Principal Deputy Solicitor General Neal Katyal said the decision by the 9th U.S. Circuit Court of Appeals was too broad and would erase the claim-of-innocence requirement in the federal DNA testing law.

Justice Stevens said other people who were later exonerated had confessed to crimes they didn’t commit.

“How do we know this isn’t one of those cases?” Justice Stevens asked.

The woman in Alaska was raped, beaten with an ax handle, shot in the head and left for dead in a snowbank near Anchorage International Airport. The condom that was found nearby was used in the assault, the woman said.

The woman identified Osborne as one of her attackers. Another man also convicted in the attack has repeatedly incriminated him. Osborne himself described the assault in detail when he admitted his guilt under oath to the parole board in 2004.

A decision is expected in the spring.

In other action, the court declined an appeal from a high school football coach who wants to bow his head and kneel during prayers led by his players despite a school district policy prohibiting it.

The justices ended Marcus Borden’s fight against the East Brunswick, N.J., school district’s policy that forbids him and other staff members from joining in student-led prayer. The federal appeals court in Philadelphia sided with the district.

The high court declined to weigh in on whether Mr. Borden’s desire to bow his head silently and “take a knee” with his football players violates the Constitution’s prohibition on government endorsement of religion. Mr. Borden says such gestures are secular.

“Coaches are not supposed to be promoting religion; that’s up to students and parents and pastors,” said Barry W. Lynn, executive director of Americans United for Separation of Church and State, which represented the school district.

The 3rd U.S. Circuit Court of Appeals in Philadelphia agreed that the school district policy is constitutional, but the judges differed on what exactly the coach should do if his team prays.

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