Dispatches from the Creation Wars

Yet another absolutely appalling example of the Obama administration continuing a vile Bush administration position in a legal case with a profound effect on freedom and the rule of law. Now the Obama DOJ is continuing to support the Bush administration’s position that prisoners do not have a right to access DNA evidence that may prove their innocence:

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.


This is an extraordinarily important case. William Osborne was convicted of the 1993 rape and kidnapping of a prostitute and sentenced to 26 years in prison in Alaska. On appeal, the state courts ruled that Osborne had no due process right to access DNA evidence in the case for testing that might prove his innocence, even if he paid for the test at his own expense.

That prompted the current federal lawsuit. The district court ruled against Osborne but the appeals court reversed that decision, saying, “[respondent's] right to due process of law prohibits the State from denying him reasonable access to biological evidence for the purpose of further DNA testing.” The prosecutor in the case then appealed that ruling to the Supreme Court, which granted the cert petition and will hear oral argument in the case on March 2.

That the Obama DOJ would continue to maintain that prisoners do not have a right to access evidence for testing that could prove their innocence is nothing short of appalling. Equally appalling is the fact that Michigan Attorney General Mike Cox joined with many other Attorneys General to file a brief arguing against such a right as well.