Order List

November 6, 2008 Supreme Court Update

Greetings, Court Fans!

In terms of written output, it was a slow week at the Court – just a single order list with two new cert grants. The cases, however, look interesting. The first, District Attorney's Office v. Osborne (08-6), involves an inmate who, at the time of his trial for kidnapping and sexual assault, decided to forego independent DNA testing that might have cleared him of his crimes. He's now filed a new suit under 42 U.S.C. 1983 in which he seeks access to the biological evidence for purposes of new DNA testing. The Ninth Circuit held that his claim was cognizable, and the D.A. has challenged that ruling. The questions are: (1) May Osborne use section 1983 as a discovery device for obtaining post-conviction access to the state's biological evidence when he has no pending substantive claim for which that evidence would be material? and (2) Does Osborne have a right under the Fourteenth Amendment's Due Process Clause to obtain post-conviction access to the state's biological evidence when the claim he intends to assert – a freestanding claim of innocence – is not legally cognizable?

The second new case is Atlantic Sounding Co. v. Townsend (08-214), which asks "May a seaman recover punitive damages for the willful failure to pay maintenance and cure?" (OK, this one doesn't seem that interesting unless you're a maritime lawyer. It really was a slow week).

The Court's still in session next week hearing arguments, so we may see some per curiam opinions or other interesting orders. We'll keep you posted – thanks for reading!

Ken & Kim

From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, or any other member of the Practice Group at 203-498-4400