Justices Might Take DNA Evidence Case

Convict Seeks New Tests That He Thinks Could Exonerate Him in Homicide

William Osborne was accused of raping a prostitute at gunpoint, beating her with an ax handle and leaving her for dead in the snow. His lawyer declined a DNA test of the evidence, thinking that it would confirm his guilt.

Osborne was convicted, spent more than a decade in prison and gave a detailed confession to a parole board. But after recanting that confession, the Alaska man won a federal lawsuit seeking new DNA tests he now says can clear him, a judgment that was affirmed by the U.S. Court of Appeals for the 9th Circuit. It is the first time an appellate court has ruled that an inmate has a federal constitutional right to such testing.

Now, the Supreme Court is being asked to evaluate that ruling in a case that pits the administration of Alaska Gov. Sarah Palin, the Republican vice presidential nominee, against a Republican-appointed judge who accuses her state attorney general of being "obstinate" in blocking Osborne from testing the evidence used to convict him. The high court debated Alaska's request to take the case in a private conference on Friday and could announce its decision as early as tomorrow.

The case has focused attention on a legal venue that has been largely exempted from the national movement toward post-conviction DNA testing: the federal courts. More than 220 wrongfully convicted inmates have been exonerated by DNA tests since 1989, including 17 on death row, according to the New York-based Innocence Project, which is representing Osborne.

But nearly all DNA lawsuits are filed in state courts because 44 states have passed laws allowing inmates to petition for post-conviction testing. If the Supreme Court upheld a federal right to testing, experts said it could accelerate the national trend and put pressure on the remaining six states, including Alaska, to pass DNA laws.

"People would be able to say 'Look, I have a federal right to testing; federal courts have to enforce my right and so do state courts,' " said David Kaye, an Arizona State University law professor. "It would encourage judges at all levels to give orders requiring such testing."

Some in law enforcement fear that federal courts could be flooded with lawsuits if the Supreme Court upheld April's appeals court ruling in the Osborne case. "A blanket right to post-conviction DNA testing would be a dangerous prospect," said Chris Asplen, former director of the National Commission on the Future of DNA Evidence and a former prosecutor. He said any Supreme Court ruling should be limited and "highly qualified."

But Osborne's lawyers dispute that, saying in their briefs that 5 to 10 percent of felonies involve biological evidence from the perpetrator that is suitable for DNA testing. The lawyers are urging the Supreme Court to decline the case, and some legal experts said the increasingly conservative court might overturn the lower-court ruling if it does hear the matter. That would make it very difficult for Osborne and inmates in six states to get DNA tests, and would mean no federal option for state prisoners who lose DNA lawsuits elsewhere.

Whatever the justices do, the Osborne case has triggered a vigorous debate about the DNA policies of Alaska. Osborne, 36, was convicted with another man in the 1993 attack on the prostitute in Anchorage. A DNA test on a condom found at the crime scene was consistent with Osborne's genetic profile, but that profile had a frequency of 14 to 16 percent among African Americans such as Osborne, according to court records.

Osborne's lawyer at the time declined a more discriminating DNA test because she thought it would establish his guilt, the lawyer said in an affidavit. The state also did not pursue further testing. Osborne is now seeking newer tests, at his own expense, on the condom and on hairs found at the crime scene. He confessed to the Alaska parole board in 2004 but later said he did that only to get released, court records said.

In their briefs, Osborne's lawyers called Alaska an "outlier" for resisting what they called the national consensus for post-conviction DNA testing. The 9th Circuit opinion that affirmed Osborne's constitutional right to the testing accused the state of "an obstinate denial that Osborne might be innocent even if DNA test results exclude him as a source of the biological evidence used to convict him."

Despite Osborne's confession, the court said, Alaska is trying to "foreclose" his possible exoneration "by its simple refusal to open the evidence locker." Although the California-based 9th Circuit is often considered among the nation's more liberal appellate courts, the decision by a three-judge panel was written by Judge Melvin T. Brunetti, an appointee of President Ronald Reagan.

Kenneth M. Rosenstein, an Alaska assistant attorney general, declined to comment except to say that he did not know whether the governor's office was involved in the decision to seek Supreme Court review. Alaska Attorney General Talis J. Colberg, appointed by Palin in 2006, is listed on the state's brief, but the state had been fighting Osborne's requests for a DNA test since before Palin took office.

In their brief, Alaska attorneys called the 9th Circuit decision "far beyond existing constitutional norms" and said Osborne "received a fair trial and had the assistance of a competent lawyer."

Osborne was released from prison last year. He was arrested again last December and is awaiting trial on 17 felony counts stemming from a home invasion in Anchorage in which the victims were bound with duct tape and pistol-whipped, police said.