Court To Examine Prisoners' Right To DNA Evidence

The U.S. Supreme Court on Monday takes up a question central to the criminal justice system: When new methods of DNA analysis could exonerate a person imprisoned for a crime, does that individual have a constitutional right to access the physical evidence for testing?

In 1993, William Osborne was convicted of raping and beating a prostitute, burying her in the snow in Alaska and leaving her for dead. The woman later identified Osborne and his friend Dexter Jackson as her assailants, and Jackson confessed and implicated Osborne. The DNA testing used at the time did link Osborne to the rape, but it was a rudimentary procedure that also linked some 16 percent of all African-Americans to the crime. Osborne, despite maintaining his innocence, was convicted and sentenced to 26 years in prison.

Since then, DNA testing has become close to ironclad in its certainty when properly done. Under new testing methods, the odds that two unrelated Americans would share the same DNA are 1 in several trillion. So Osborne wants the physical evidence — namely a condom and pubic hairs — to use in testing with a new method not available at the time of his trial. And he is willing to pay the $1,000 price tag.

The state of Alaska, however, has rejected his request. And while most states have enacted laws requiring post-conviction access to DNA at least in some circumstances, Alaska is one of the six states that has no such law. So Osborne is suing the state under a civil rights statute, claiming that under the Constitution's guarantee to due process of law, he should have access to the DNA material for testing.

A federal appeals court ruled in his favor, and the state of Alaska appealed to the U.S. Supreme Court, which will hear arguments on Monday. Osborne is represented by the Innocence Project, which would not permit any of its lawyers to be interviewed for this broadcast.

But David Rudovsky, of the University of Pennsylvania Law School, summarizes the core of Osborne's argument:

"When you have evidence like DNA, which is the gold standard now, it's simply arbitrary in a constitutional sense to deny them the right to do the testing," he says.

An Intrusion On States' Rights?

But the state of Alaska sees Osborne's appeal as an intrusion into states' rights, and an end run around the system. Alaska Assistant Attorney General Ken Rosenstein says the evidence against Osborne was overwhelming. Not only did his victim identify him and his co-defendant implicate him, but 14 years later, Osborne admitted guilt at his parole hearing. And after he was released in 2007, he was arrested again in connection with a violent home invasion for robbery. Because that case violated his parole, he is now serving the remainder of his original 26-year sentence, as well as the sentence for the robbery conviction.

"Alaska's interest is in trying to separate claims by defendants who are simply gaming the system from those who merit a further expenditure of state resources, and although in this case Mr. Osborne has said that he's willing to pay for new testing, once a right is established, then the state is going to be on the hook for paying for testing for indigent defendants," Rosenstein says.

The state says essentially that Osborne has already had all the appeals he is due, and now his only recourse is to show his constitutional rights were violated at trial.

Rudovsky counters that not only have the time limits expired for filing such a claim, but it would be invalid anyway.

"What we're saying is not that the trial wasn't fair at the time, but that we now have evidence that everybody agrees could absolutely prove innocence," Rudovsky says.

Or guilt.

That is the motivation cited by a group of victims from across the country who have filed a brief in the Supreme Court siding with Osborne. One of those victims is Jennifer Thompson Cannino, who carefully studied the face of the man who raped her, hoping to someday put him in prison, and who twice identified her assailant in court — wrongly. Eleven years after Ronald Cotton's second conviction, Cannino agreed to DNA testing that subsequently proved him innocent.

"I 100 percent believed we had gotten the right person," Cannino says. "I wanted this thing to be done and over with — that was my first thought. Second thought is: 'Wouldn't you want to know for sure that you had done the right thing, that you have the right person?' "

And lastly, she says, if you have the wrong person, that means the real culprit may be out on the loose. In her case, DNA revealed the perpetrator was serial rapist Bobby Poole.

"Where Bobby Poole was still on the streets and committed six other rapes that summer and six other lives were destroyed, we shouldn't have to go through court orders to have DNA tested," she says. "We should want to know."

The state of Alaska, however, backed by 31 other states and the federal government, is contending that this is a policy choice for states to make, not a constitutional requirement. The case has many procedural twists, turns and complexities, but at its core it pits the search for truth and accuracy against the state's need for finality in the criminal justice system.

And this all occurs against the backdrop of 232 people exonerated by DNA testing in recent years, and the fact that the Supreme Court has never held that there is a constitutional right to make a claim of innocence based on new evidence once the usual appeals process has run its course.

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