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SG Won't Disavow Bush Position in Controversial DNA Case

Publication Date: 
February 24, 2009
The BLT: The Blog of the Legal Times
Tony Mauro

Tony Mauro quotes Professor Larry Marshall about a U.S. Supreme Court case that will be heard March 2, 2009, District Attorney's Office for the Third Judicial District v. Osborne. This case will determine whether a defendant may invoke a federal constitutional right (through 42 U.S.C. 1983) to get a federal court to order the state to provide access to the evidence following the defendant’s conviction. Mauro reports:

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.

The decision to maintain the same position as the Bush Administration in the case has caused deep disappointment among innocence advocates, especially in light of President Barack Obama's strong support of access to DNA evidence while a state senator in Illinois, where many of the early successes in exonerating innocent inmates through DNA evidence took place.


Stanford Law School professor Larry Marshall, who led the Illinois project that researched and helped exonerate Illinois inmates, says the Bush Administration brief, filed in January just days before Obama took office, 'stakes out an unprecedented legal position that is diametrically opposed to the views and values upon which President Obama campaigned.' Marshall also says Obama displayed 'extraordinary leadership' in Illinois in aiding efforts to exonerate the innocent, and he actively supported legislation that would give inmates access to DNA evidence.