MR. KATYAL: Mr. Chief Justice, and may it please the Court:
The Ninth Circuit created a novel constitutional right by extending Brady to the postconviction setting. Mr. Osborne doesn't attempt to defend that rationale. Instead, he attempts to mint a previously unrecognized liberty interest in access to clemency or State postconviction procedures. Assuming the Court reaches the second question presented, it should not constitutionalize rules for postconviction access to DNA, an area of great legislative ferment in the last few years. And even were it inclined to do so, the unusual facts of this case, which include failure to attest to actual innocence under threat of perjury, two recent confessions to the crime, and a tactical decision at trial to forego a highly discriminating RFLP DNA test, all together make this a particularly poor candidate for recognizing a new constitutional entitlement.We were a little worried that the new administration would abandon the position taken by the previous one in District Attorney's Office v. Osborne and are glad to see they did not. Transcript here.
Another nugget in the argument is this one from Justice Ginsburg:
But there's another possible impediment here to your claim. If we assume that there is this constitutional right, and it's available in 1983, this trial was in 1993. He brings the 1983 action in 2003. Counsel told us that this better method of testing has been available since the late nineties.
With any constitutional right, there's an obligation of due diligence on the part of the claimant. You can't come in 10 years later, for example, and say -- say there was a tainted juror or something like that. It was -- it -- when you're claiming even evidence that wasn't available at the trial, you have to make the application with due diligence.Chief Justice Roberts notes the folly of constitutionalizing an issue when the state legislatures are already dealing with it appropriately.
CHIEF JUSTICE ROBERTS: Sorry, counsel. If it is so clear that this is the right way to go, that the Federal Government, 41 States -- does it make sense for us to devise a constitutional right to displace what the legislatures have done?
MR. NEUFELD: It is not a question of displacing what the legislatures have done, Mr. Chief Justice. It is a question of when the State of Alaska chooses to provide a mechanism for postconviction relief. And here they do.
CHIEF JUSTICE ROBERTS: It is exactly a question of displacing what the States have done because now this question is going to be subject to constitutional law and it's going to be litigated in a variety of cases with a variety of claims. Do you get the right to it when you confess? Do you get the right to it when you've waived it at trial? Do you get the continuous right to it as technology advances and makes the test more sensitive? All of those matters will be Federal constitutional questions for us to decide..