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No due process right to DNA tests; older workers have burden of persuasion

This article first appeared in the St. Louis Beacon, June 18, 2009 - The five-justice conservative majority on the U.S. Supreme Court refused on Thursday to recognize a constitutional right for an inmate to test DNA evidence to prove his innocence or guilt. In a separate case, the same majority made it more difficult for some victims of age discrimination to win in court.

The DNA case came from Alaska, one of only four states that do not have new laws setting out when an inmate can insist on DNA testing to prove innocence. Both Missouri and Illinois have DNA testing laws. DNA tests have been a major reason for the release of convicts unjustly convicted in murder and rape cases not only in Missouri and Illinois, but nationwide.

Chief Justice John G. Roberts acknowledged that "Modern DNA testing can provide powerful new evidence unlike anything known before." But he wrote that this can't mean that suddenly all convictions involving biological evidence are up in the air. And he said it was the role of the legislature, not the court, to set out the rules for when to allow prisoners to obtain testing. He added that most of the states and the federal government had been involved in thoughtful attempts to draft those rules.

Defendants in criminal cases are entitled to have access to key evidence against them before trial. But Roberts said that same entitlement did not apply after conviction. A person's liberty interest is less after conviction than before, he noted.

The chief justice's language refusing to recognize a "substantive due process" right to DNA testing may have been more significant than the DNA portion of the opinion. The due process clause has been interpreted to not only protect procedural fairness, but to protect fundamental freedoms that constitute the substance protected by the clause. The abortion right and the right to marry are two examples of substantive due process rights recognized by the court.

Chief Justice Roberts said the court is reluctant to recognize new substantive due process rights because they are so "open-ended." He said that DNA testing is not a longstanding tradition like other rights protected by substantive due process.

Justice John Paul Stevens said in dissent that it was obvious why there wasn't a long tradition of DNA testing, in that the technology is recent. But he said there is a long tradition to protect the freedom interests of those unjustly locked up.

Justice Stevens said he could not understand why the court would not allow the Alaska inmate, William Osborne, to have the test that would prove if he were innocent or guilty.

Osborne was convicted of the savage beating of a prostitute who was left for dead in a snow bank. The majority pointed out that Osborne had admitted to the attack while trying to win parole, an admission that undercut his effort to prove his innocence.

Joining Roberts in the majority were Justices Samuel Alito, Clarence Thomas, Antonin Scalia and Anthony M. Kennedy. Dissenting along with Stevens were Justices Ruth Bader Ginsburg, Stephen Breyer and David H. Souter.

Burden of Age

That was the same breakdown in the age discrimination case from Iowa where Jack Gross, a 54-year-old insurance adjuster, had won a $47,000 judgment after he was demoted and his job given to a woman in her 40s.

In race discrimination cases, the burden of persuasion switches to the employer when the employee makes a plausible case of discrimination. This has been an important advantage for employees that was developed in a case from St. Louis in which civil rights advocate Percy Green sued McDonnell Douglas Corp.

But Justice Thomas said that this same transfer of the burden of persuasion does not apply in age discrimination cases. Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, was reported by the Los Angeles Times to have criticized the ruling for ignoring Congress' clear intent.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.