One First Street Snow Globe

It's good that the Supreme Court posts opinion transcripts. Otherwise big nerds would have nothing else to post about on days that are a bit thin in the opinion department.

In any event, today the Court heard oral argument in District Attorney's Office for the Third District et al. v. Osborne, No. 08-6. The transcript is available here. You might have heard about the case. The shorthand issue is whether a person in prison should have a constitutional right to access DNA evidence after he/she has been convicted. The shorthand response is: "Yes. Duh." But this is not as simple a case as it seems. Consider the following wrinkles:

Wrinkle 1: The convicted guy, the respondent, has thus far not sworn under the pains and penalties of perjury that he is actually innocent and that a DNA test would exonerate him.

Wrinkle 2: The respondent had an opportunity to do a DNA test at trial and decided, on the advice of counsel, not to.

The transcript is fascinating in that it is the Court crystallized in miniature. Justices Ginsburg, Souter, and Stevens are generally sympathetic to the idea of a constitutional right to post-conviction DNA evidence. Justice Breyer spins out wacky hypotheticals and tries to find middle ground. Justices Roberts, Scalia, and Alito are generally unsympathetic to the idea of a new constitutional right.

Justice Thomas asks no questions.

And then there's Justice Kennedy. He's mostly quiet during the arguments of Alaska's Assistant Attorney General and the Solicitor General. Then, during the respondent's argument, he pounces. He sees the potential for criminal defendants to game the system, to "shoot the dice" and avoid DNA evidence at trial on the theory that they can always get it post-conviction.

When Alaska rebuts (pages 62-65), though, the entire landscape of the case changes. Justice Kennedy asks Alaska if it would provide the DNA evidence to the respondent if he submitted a sworn affidavit tomorrow. Alaska haws and hems. And this clearly upsets Justice Kennedy.

The question thus becomes: does it upset him enough to tilt the balance?