[T]his was yet another case where the Obama DOJ sided with the Bush administration and advocated the position that the conservative justices adopted. The Obama DOJ aggressively argued before the Court that convicted criminals have no constitutional right to access evidence for DNA analysis. Indeed, its decision to embrace this extreme Bush position caused much controversy and anger back in February. Law Professor Darren Hutchinson wrote back then:The Office of the Solicitor General has adhered to Bush's position that the inmate does not have a constitutional right to re-test the DNA evidence, even though doing so could establish his innocence and despite the fact that his attorney will pay for the new scientific analysis of the evidence. . . .Indeed, the Obama DOJ rejected explicit requests from defendants rights advocates to repudiate the Bush position. Instead, the Obama DOJ announced that Deputy Solicitor General Neal Katyal would make his debut appearance before the Supreme Court in that capacity advocating the Bush position (and that's what then happened)
As a state senator, Obama sponsored and lobbied for legislation that gave all inmates a post-conviction right to DNA evidence -- the same right that Osborne asserts in this case. . . . The Bush administration was not required to take a position in this case. Although the Bush administration decided to submit a brief in the case, the Obama administration could have refused to defend it, withdrawn it, or even switched position.
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