High Court Looks at Prisoners' Right to DNA Test

By: Mary Pemberton AP
By: Mary Pemberton AP

ANCHORAGE, Alaska (AP) - William Osborne says he's a victim of
mistaken identity and a DNA test would prove it. Alaska prosecutors
say his rape and attempted murder convictions are as solid as can
be, and would be pointless to revisit.

Osborne's attorneys will argue before the U.S. Supreme Court on
Monday that DNA testing is not something states can choose to allow
when they have doubts about a conviction, but a constitutional

They note that 232 prisoners around the country have been
exonerated by such tests, and that Alaska is the only state that
hasn't even tried to use the ever-evolving technology to see if it
might have gotten a conviction wrong.

"Most prosecutors, judges and states recognize that while DNA
testing in these crimes may not always protect a conviction, it
protects our system of justice by revealing the truth," said Peter
Neufeld, co-director of The Innocence Project. "Alaska is the

Neufeld's group, which works to exonerate those who are
wrongfully convicted, argues that the U.S. Constitution guarantees
Osborne access to the DNA test when it says no state shall
"deprive any person of life, liberty, or property, without due
process of law."

The state of Alaska argues that Osborne got a fair, error-free
trial, and that he is trying to use nothing more than a claim of
innocence to reopen a case in which there is ample evidence of his

Osborne, 36, was convicted of raping and trying to murder a
woman in 1993. She identified him as one of her two attackers, he
was incriminated by the other man and Osborne confessed in a
detailed written statement in 2004.

Ken Rosenstein, the state's lead lawyer for the case, said
Osborne chose not to use options available to him if he had wanted
to argue his innocence, including asking the governor for clemency.

"Osborne is not a very likely candidate for maintaining an
innocent claim because he has confessed to his crime and he won't
declare his innocence under oath. There is otherwise no other
reason to doubt the validity of his convictions," he said.

Prosecutors point to Osborne's own words.

"Instead of declaring his actual innocence, he has confessed,
in graphic detail, to the precise crimes with which he was charged
and convicted," the state's court brief says.

DNA testing was conducted for Osborne's trial, but it was crude
by today's standards: He could have been the source of semen found
in a condom, but so could have roughly 15 percent of all blacks.
Prosecutors repeatedly told the jury that Osborne's semen was found
in the condom.

The state's expert considered conducting a second type of test
that could have narrowed the results but determined the DNA sample
was too degraded.

At trial, Osborne asked that his attorney attempt to have the
more precise DNA test conducted but she refused, telling him that
the outcome of the DNA test that was done actually supported their
case of mistaken identity, while another test might hurt it.

Osborne later argued unsuccessfully in Alaska courts that his
lawyer had been ineffective because she failed to ask for the more
discriminating DNA test.

Alaska courts determined that Osborne could not satisfy the
requirements for postconviction testing, in part finding that his
lawyer made a reasoned decision about the DNA test.

Last year, the 9th U.S. Circuit Court of Appeals ruled in
Osborne's favor, finding it was unconstitutional to deny him access
to the test.

Alaska seeks to reverse that federal ruling. The state says if
that if the ruling is allowed to stand, "then any state or federal
prisoner would gain a federal constitutional right to reopen his
case merely by asserting that new forensic-science technologies
might establish his innocence."

That, they say, threatens the ability of the states "to process
postconviction challenges in an orderly fashion."

Osborne was paroled in 2007 after spending 14 years in prison
for the attack. He was re-arrested six months later for an
Anchorage home invasion and currently is in jail awaiting a 15-year
sentence, which could be reduced if the semen was found not to be

Keith Findley, who is co-director of the Wisconsin Innocence
Project and has worked on the Osborne case, said that if the
Supreme Court sides with Osborne, it is unlikely there would be a
flood of requests for DNA testing. Cases where it makes sense are
few and most states grant the request anyway, he said.

Forty-four states, the District of Columbia and Congress have
passed statutes granting access to post-conviction DNA testing.
Access is easier in some states than in others: In Kentucky and
Nevada, for example, such testing is allowed only for death-row

According to The Innocence Project, which is affiliated with
Cardozo School of Law at Yeshiva University, Alaska is the only
state where there is no known case of a prisoner receiving DNA
testing after being convicted.

Findley said false admissions of guilt are not uncommon. Of 232
cases where DNA exonerated prisoners of their crimes, up to
one-quarter involved admissions of guilt, he said.

"Suppose he's innocent. That means the other perpetrator hasn't
been apprehended," Findley said "... It is hard to imagine why a
state would be opposed to this."

Findley said it is ludicrous for the state to say they don't
want to do the test because they already know the outcome.

"That is one of the great lessons. You can never be too sure
what the results will be until you do the test," he said.

(Copyright 2009 by The Associated Press. All Rights Reserved.)

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