The Supreme Court Today: DNA Testing, Double Jeopardy, Age Discrimination

The United States Supreme Court handed down four decisions today, each a divided ruling.

DNA Testing: as the Supreme Court observed today, "DNA testing has an unparaelled ability both to exonerate the wrongly convicted and to identify the guilty." The question is whether a defendant has a constitutional due process right to DNA testing after he has been convicted and his conviction has been affirmed on appeal. In District Attorney's Office for the Third Judicial District v. Osborne, the Court decides 5-4 that such a constitutional right does not exist.

Osborne was convicted in Alaska of sexual assault and related crimes. A condom containing seman was found at the scene of the crime. At the time of the trial in the 1990s all DNA testing was not sophisticated enough to establish with certainty whether Osborne had or had not committed the crime, and it was this testing which was done. His attorney did not seek a more sophisticated test which "has a high degree of discrimination," apparently because she thought the test would show Osborne is guilty.The Alaska courts denied his claims for postconviction access to the more sophisticated test.

Osborne then brought a federal 42 U.S.C. § 1983 claim seeking at his own expense even newer "extremely discriminating" DNA testing which can "determine whether a biological tissue matches a suspect with near certainty."

In an opinion by Chief Justice Roberts the majority of the Court concludes, however, that the emergence of DNA testing does not mean "every criminal conviction involving biological evidence is suddenly in doubt. The dilemma is how to harness DNA's power to prove innocence without unnecessarily overthrowing the established system of criminal justice."

The majority concludes that resolution of the "dilemma" is best left to the states, and that there is no federal constitutional right to postconviction DNA testing. The fact that 46 states have enacted statutes dealing with access to DNA evidence indicates to the majority that the states are paying serious attention to the matter and there is, therefore, no reason for the federal judiciary to intervene by "creating a new constitutional right and taking over responsibility for refining it."

Double Jeopardy: if a jury acquits a defendant on some counts of an indictment, but is hung on the remaining counts, can the acquittal bar a retrial of the defendant on the counts on which the jury was hung? In Yeager v. United States a 6-3 majority (this time Chief Justice Roberts joined his more liberal colleagues) concludes that principles of double jeopardy will bar the retrial when the issue resolved by the acquittal is the same issue which must be decided on the retrial of the counts on which the jury was hung.

Yeager was a senior vice president at Enron and the claim is that he made fraudulent public statements regarding Enron's plan to develop a fiber-optic telecommunications system. Based on his statements, it was alleged, the stock price of Enron rose, and Yeager sold his shares for a $19 million profit. The fiber-optic system was never developed.

At trial the jury acquitted Yeager of fraud, but could not reach a verdict on the counts charging insider trading--his alleged use of material non-public information. The Court concludes that if, based on the evidence at the trial, the acquittal of fraud means the jury found Yeager did not trade on insider information, then double jeopardy will bar his retrial on the separate insider trading counts.

The ruling is a significant one. Under traditional double jeopardy principles, a defendant can face a second trial for any charge on which a jury is unable to reach a verdict. For the first time the Court concludes that there can be a situation in which a defendant cannot be retried on counts on which a jury is hung.

Age Discrimination: The Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq, prohibits an employer from taking an adverse action against an employee "because of such person's age." 29 U.S.C. § 623(a). In Gross v. FBL Financial Services, Inc. the majority of the Court concludes that "because of" means "but for"--that a jury must be told that in order to find the employer liable, it must find age was the central or decisive factor leading to the employer's action, not merely a contributing factor. The effect of the ruling is to make it more difficult for employees to prove ADEA claims.

Bankruptcy: in Travelers Indemnity Co. v. Bailey the Court addresses the injunctive powers of a Bankruptcy Court.