Concluding that this is a matter for state legislatures, not the federal courts, to decide, Chief Justice John Roberts wrote in District Attorney’s Office v. Osborne that the Supreme Court is “reluctant to enlist the Federal Judiciary in creating a new constitutional code of rules for handling DNA.”

Even as the majority acknowledged the critical new role that DNA evidence can play in the criminal justice system — the test “has exonerated wrongly convicted people, and has confirmed the convictions of many others” — the court ruled that it’s still not, as the imprisoned defendant had claimed, a matter of due process rights guaranteed under the U.S. Constitution, but rather a procedural matter for states to decide how they want to handle the evidence and interpret their statutes regarding post-conviction relief.

In a scathing dissent, Justice John Paul Stevens — joined (again) by Justices Ginsburg, Breyer and Souter (in part) — wrote that the majority had misinterpreted both the facts and the law.

The “most elemental” of the liberties protected by the Due Process Clause is “the interest in being free from physical detention by one’s own government,” Stevens wrote. Noting that “nearly all the States have now recognized some postconviction right to DNA evidence,” and that prosecutors are required to turn over exculpatory evidence, it is “appropriate to recognize a limited federal right to such evidence in cases where litigants are unfairly barred from obtaining relief in state court.” Given that the evidence would absolutely prove Osborne’s guilt or innocence, Stevens wrote, Alaska’s refusal to provide it was “arbitrary” and a denial of the federal constitutional right of due process.

Because the Supreme Court had long similarly refused to acknowledge a right to counsel for the indigent in criminal cases by saying it was a matter of state procedure rather than due process, the dissenting justices argued that it was time to recognize a limited right to DNA evidence.

“Osborne has demonstrated a constitutionally protected right to due process which the State of Alaska thus far has not vindicated and which this Court is both empowered and obliged to safeguard. On the record before us, there is no reason to deny access to the evidence and there are many reasons to provide it, not least of which is a fundamental concern in ensuring that justice has been done inthis case.”

The Wall Street Journal reports today:

New York criminal-defense lawyers say she is surprisingly tough on crime for a Democratic-backed appointee — a byproduct, they believe, of her tenure as a prosecutor.

Makes sense. She may also have been influenced by growing up in a poor and crime-ridden neighborhood in the Bronx. Whatever the reason, she could push the Supreme Court rightward in its rulings on rights of criminal defendants.

As the Journal’s Jess Bravin and Nathan Koppell write:

The Supreme Court’s five conservatives in January held that it was acceptable for prosecutors to use evidence seized by police who mistakenly thought they had a warrant to arrest a suspect.

Justice David Souter dissented, as did the other liberals on the court. But Judge Sotomayor, nominated to succeed Justice Souter, ruled in favor of the police in a similar case 10 years ago. In that case, the judge upheld an arrest and search that never would have happened if police and court officials had kept accurate records.

While it’s impossible to know how she would rule if a case like that came before her today, it does suggest a conservatism on an important issue that until now has been largely overlooked.

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