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High Court to Hear DNA Testing Case
Justices to Debate Whether Convicts Should Be Guaranteed Access to Latest Techniques

By Robert Barnes
Washington Post Staff Writer
Sunday, February 22, 2009

Their stories are familiar, even if their names no longer resonate:

Bruce Godschalk, freed after spending 15 years in prison for rapes he did not commit; Jeffrey Deskovic, wrongly convicted for murder and released after spending nearly half his life behind bars; Kirk Bloodsworth, the Marylander who spent years on death row for murder before the true killer was identified.

They are among more than 200 people nationwide who were freed because DNA tests performed after their convictions showed they could not have committed the crimes.

And they now have joined civil rights groups, some current and former prosecutors, and a convicted Alaskan rapist to urge the Supreme Court to apply constitutional protections for the first time to what the prisoners' lawyers call "arguably the most important development in the history of forensic science: the advent of DNA testing."

They are opposed by victims rights groups; the vast majority of states, which have a patchwork of laws granting DNA access; and the federal government. The governments say that creating a constitutional right to the testing would infringe on states' rights, overwhelm them with frivolous demands and create an endless right of appeal for those convicted of the most violent crimes.

"These statutes reflect a careful balancing of the government's interests in finality, comity, and conservation of scarce resources," lawyers for the state of Alaska argue, "against a prisoner's interest in justice in those rare cases" when innocence could be proven by new forensic technology.

It is the Supreme Court's first case that confronts the dilemma of how to deal with DNA evidence, which former attorney general John D. Ashcroft called the "truth machine of law enforcement."

The increasingly accurate nature of biological testing has revolutionized criminal forensics, become a staple of television crime shows and, according to the Innocence Project, whose lawyers are representing convicted Alaskan rapist William G. Osborne, exonerated 232 prisoners, 17 of whom had been sentenced to death.

Osborne was convicted of the brutal rape and assault of a prostitute in a secluded area near the Anchorage International Airport in 1993. Two men had agreed to pay the woman for oral sex; instead, one forced her to perform fellatio while the second raped her.

The men ordered the woman to leave the car and lie facedown on the snow, but she ran instead. They beat her until she feigned death, and one man fired a shot that grazed her forehead.

Days later, police stopped Dexter Jackson on a driving infraction and found in his car a gun and knife belonging to the prostitute. Jackson implicated Osborne as his accomplice and the rapist. The woman later identified Osborne from a photo lineup as the "most likely" and "most familiar" suspect in the group.

She said he had used a blue condom, which police found at the scene. Testing on the semen was consistent with Osborne's DNA -- but also with 14.7 to 16 percent of all African Americans'. Osborne's lawyer, basing his defense on Osborne's claim of an alibi, did not seek a more discriminating test that could clear him -- or link him more conclusively to the crime.

He was found guilty and sentenced to 25 years in prison, with five years suspended.

Osborne wants to pay for a more exacting test of the DNA evidence that was introduced at his trial -- one so precise that even the state concedes it would probably prove his guilt or innocence -- but has been denied access by prosecutors.

Alaska is one of six states that do not have statutes allowing post-conviction access to DNA evidence, and although courts there have agreed to testing in a handful of cases, the testing has not taken place.

Among other objections in Osborne's case, the state fought his petition in federal courts that he deserved access to the evidence under civil rights laws, saying Supreme Court precedent does not allow such a petition to attempt to invalidate a conviction.

The U.S. Court of Appeals for the 9th Circuit in San Francisco disagreed with the state's argument, siding with Osborne that the evidence he sought would not automatically prove his innocence and could just as well establish his guilt. The court said its decision followed the principles in another Supreme Court precedent, Brady v. Maryland, which established the defense's right to exculpatory evidence at trial.

A brief on Osborne's behalf filed by the American Civil Liberties Union, the Rutherford Institute and criminal defense lawyers said it should be clear that such a constitutional right exists, even if it has not been articulated.

"If the Constitution's protection of individual liberty means anything, it must mean that a state cannot continue to detain someone who conclusively proves through a DNA test that he is innocent of the crime that is the basis for his incarceration," the groups argue.

But Alaska Assistant Attorney General Kenneth M. Rosenstein said that forcing all states to comply with a certain procedure would be a "relatively unprecedented" imposition on states' abilities to decide their own criminal procedures.

He said the court should reject Osborne's argument "that this should be taken out of the hands of the state, which is unprecedented in a post-conviction context, where the Supreme Court has given the states incredible leeway."

Besides, said Rosenstein's co-counsel Roy Englert, a veteran Supreme Court practitioner, Osborne "is a pretty lousy candidate for DNA testing."

Englert notes that Osborne and his attorney passed up the chance for more extensive testing at the time of his trial. He was implicated in the crime not just by a terrified victim but by the other man involved in the attack. And, in a bid for parole in 2004, he confessed.

In a recent jailhouse interview with the Juneau Empire, Osborne avoided a question on his innocence, saying of his case, "I just hope it helps somebody, somewhere down the line, somehow."

Released from prison after serving 14 years of his sentence, he was soon arrested for a home invasion. He is now serving time for that crime and then must finish the sentence for the rape.

But those who support Osborne's request say the decision on who has access to post-conviction testing should not be up to those who have tried to prove guilt.

"Relying solely on the unfettered discretion of prosecutors to unlock the promise of DNA analysis can sanction injustice," said a brief filed on behalf of current and former prosecutors, including former attorney general Janet Reno.

Nor, said University of Pennsylvania law professor David Rudovsky, should the right to DNA testing be limited by individual states. Rudovsky represented Godschalk, who won the right to DNA testing in the courts even though he, fed details of the rapes by police, had confessed to the crimes.

Some states do not allow DNA testing if the convicted has confessed. In what the federal government says in its brief is a "vibrant democratic process," others allow it only for capital crimes, and some place time limits on requests for testing.

"There are people out there now in prison who are innocent," Rudovksy said, but the jurisdictions in which they were convicted deny them access to DNA evidence that would prove it.

District Attorney's Office v. Osborne is scheduled to be argued March 2.

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