The U.S. Supreme Court last term rejected two §1983 challenges to wrongful convictions. In District Attorney’s Office v. Osborne,1 the Court held the Due Process Clause does not guarantee convicted defendants the right to DNA testing. In Van de Kamp v. Goldstein,2 the Court unanimously held that absolute prosecutorial immunity protected the Los Angeles District Attorney and his chief deputy from monetary liability on a §1983 wrongful conviction claim. We analyzed Van de Kamp v. Goldstein in the June 9, 2009, NYLJ Public Interest Law column. While a setback for those concerned about wrongful convictions, the decision was not especially surprising. After all, prosecutorial immunity has long been strong medicine.
We now turn our attention to Osborne. In a controversial 5-4 decision, the Court in Osborne held that convicted criminal defendants do not have either a substantive or procedural due process right of access to evidence for the purpose of DNA testing, even at the defendant’s own expense. Chief Justice John G. Roberts wrote the opinion for the Court, joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito. Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer dissented. The 5-4 split thus pitted the more conservative justices in the majority against the more liberal-moderate justices in dissent, with Justice Kennedy casting the critical fifth vote for the majority. This alignment of the judges has become quite common these days.
