Supreme Court justices appear closely divided over claims by an Alaska inmate that the Constitution guarantees a right to post-conviction DNA testing, McClatchy Newspapers report. The court’s most conservative members are clearly aligned against William Osborne, who was convicted of assaulting a prostitute. The court’s most liberal members sounded sympathetic to expanded testing. “This is a particularly poor candidate for recognizing a new constitutional right,” Deputy Solicitor General Neal Katyal, an Obama appointee, told the court yesterday. Forty-four states already permit convicts to demand DNA testing. Since 1989, 232 convicted felons have been exonerated because of DNA testing.
“All they’re getting is a darn test,” attorney Peter Neufeld, co-founder of the Innocence Project, told the court. “And they’re staying in prison while they get that darn test.” Chief Justice John Roberts questioned whether it makes “sense for us to devise a constitutional way to displace what the states have done.” Katyal, on behalf of the Obama administration, agreed that the court “should not constitutionalize” a legal policy being worked out by individual states. If the court’s centrists are persuaded to expand DNA testing nationwide, the oral argument made clear that some kind of conditions will be attached. Several justices cited the possibility of requiring the inmate to swear under oath that he or she is innocent. That way, potential perjury charges would make the prisoner think twice about asking for a DNA test.