CORRECTION 3:50 p.m.: The paragraph describing the Court’s ruling in Yeager v. U.S. was in error as published. F. Scott Yeager has not been convicted of any crime. See the UPDATE below, at the end of that paragraph.

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Splitting 5-4, the Supreme Court ruled Thursday that an individual whose criminal conviction has become final does not have a constitutional right to gain access to evidence so that it can be subjected to DNA testing to try to prove innocence.  This was one of four final rulings the Court issued Thursday, leaving ten remaining.  The next release of opinions is expected on Monday.

Chief Justice John G. Roberts, Jr., writing for the majority in District Attorney’s Office v. Osborne (08-6), noted that DNA testing provides “an unparalleled ability” to prove innocence or guilt, but its availability “cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt.” The opinion is available here.

The task of writing rules to control access to DNA evidence “belongs primarily” to the legislature, the Chief Justice wrote.  Pursuing a “freestanding and far-reaching constitutional right of access” to DNA evidence through a civil rights lawsuit, Roberts wrote, would “short-circuit” efforts now being made by the federal government and many states to develop tools on access to such evidence.  “There is no reason to constitutionalize” access through the courts when elected officials are making “a prompt and considered” response to the DNA phenomenon, the opinion concluded.

While the decision appeared to be focused on whether such a right of access exists after a criminal conviction has become final, when states presumably have more authority to shape their responses to new challenges to earlier convictions, the language used by the Court majority made it appear that the sweep of the decision may turn out to be considerably broader.

Two of the Justices who joined the majority said in a separate opinion that they would have gone further in rejecting the DNA access claim in the case, asserting that such claims should not be pursued in a civil rights lawsuit, but through a habeas plea — but then only after first trying the challenge in state court. (The Chief Justice’s opinion assumed, without deciding, that the case had been properly pursued as a civil rights claim.)

In an opinion written by Justice Samuel A. Alito, Jr., he and Justice Anthony M. Kennedy also said that, if a defense lawyer fails to seek DNA testing during trial, and does so for tactical reasons, there is no constitutional right to seek access following conviction.  Justice Clarence Thomas joined them on that second point, but not on the need to pursue the habeas route.

In another major ruling on criminal law, available here, the Court, dividing 6-3, decided that if a jury finds an individual not guilty on some counts, but can’t agree on the others, prosecutors may not try that individual again on the “hung” counts if they had a common element with those on which the jury acquitted.  The ruling came in a case growing out of the Enron Corp. scandal — Yeager v. U.S. (08-67).  Justice John Paul Stevens wrote for the majority.  UPDATE: The charges against F. Scott Yeager on which the jury could not reach a verdict were insider trading and money laundering. He was convicted on none of the charges against him.  He sought to bar retrial on the “hung” charges, but that challenge failed in lower courts. While the Supreme Court ruled that he could not be retried on those charges if a jury verdict on other charges had resolved an essential element of those crimes, the Court did not decide that issue itself, treating it as a factual question.  It said that the government could raise in the lower courts its claim that the jury did not actually resolve that factual issue.  The Fifth Circuit Court may revisit the issue, the Court said. END OF UPDATE.

In a third ruling, available here, the Court made it more difficult for workers to prove in court their claims that they were the targets of workplace discrimination because of their age.  It is up to the worker to prove that age was the decisive factor in the action taken by the employer, even if there is some evidence that the worker’s age was one factor behind the move.  Juries in Age Discrimination in Employment Act cases, the Court declared, may never be told that, if there is some evidence of age bias, the burden then shifts to the employer to prove that the action would have been taken anyway.  Justice Clarence Thomas wrote for the majority in the 5-4 ruling in Gross v. FBL Financial Services (08-441).

In what the Court said was a “narrow ruling” in a case that had the potential for a sweeping decision on bankruptcy courts’ powers, the Justices ruled that the bankruptcy court that had approved a settlement of one facet of the reorganization plan for asbestos maker Johns Mansville Corp. had the authority to block some lawsuits filed years later dealing with that part of the plan.  Justice David H. Souter wrote for the Court in the 7-2 decision in Travelers Indemnity, et al., v. Bailey, et al. (08-295).  That opinion is available here.

Posted in Travelers Indemnity v. Bailey, et al.; Common Law Settlement Counsel v. Bailey, et al., Gross v. FBL Financial Services, District Attorney’s Office for the Third Judicial District, et al. v. Osborne, Yeager v. U.S., Everything Else