LINDA WERTHEIMER, host:
Today, the U.S. Supreme Court takes up a question central to the criminal justice system. It's a question about whether convicts have the right to access DNA evidence. Here's NPR's legal affairs correspondent Nina Totenberg.
NINA TOTENBERG: In 1993, William Osborne was convicted of raping and beating a prostitute, burying her in the Alaska snow and leaving her for dead. The woman later identified Osborne and his friend as her assailants. The friend 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 one in several trillion - that's trillion with a T. So Osborne wants the physical evidence — namely a condom and pubic hairs — to conduct DNA tests, using a method not available at the time of his trial. And he's 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 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 today. Osborne is represented by the Innocence Project, which oddly 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.
Professor DAVID RUDOVSKY (University of Pennsylvania Law School): 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.
TOTENBERG: 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 Osborne admitted guilt at his parole hearing and 14 years after the crime was released, only to be arrested again in connection with a violent home invasion for robbery.
Mr. KEN ROSENSTEIN (Alaska Assistant Attorney General): Well, 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.
TOTENBERG: 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. Professor Rudovsky counters that not only have the time limits expired for filing such a claim, but it would be invalid anyway.
Prof. RUDOVSKY: 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.
TOTENBERG: 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.
Ms. JENNIFER THOMPSON CANNINO: I 100 percent believed that we had gotten the right person. So, I wanted this thing to be done and over with. So, that was my first thought. The second thought is - wouldn't you want to know? I mean, wouldn't anybody want to know for sure that you had done the right thing, that you did have the right person?
TOTENBERG: And lastly, she says, if you have the wrong person, that means the real culprit is out on the loose, as in her case.
Ms. THOMPSON CANNINO: 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. We should want to know.
TOTENBERG: 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 and 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.
Nina Totenberg, NPR News, Washington.