Bad cases make bad law

The saying goes that bad cases make bad law, and District Attorney’s Office for the Third Judicial District, et al. v. Osborne is definitely a bad case. William Osborne was convicted in 1993 of kidnapping, raping, and assaulting a woman in Alaska. In his trial, the prosecution presented the results of a DNA test that seemingly linked him to the crime, but the test would have also matched about 15% of the black population. Osborne decided to forgo a more accurate DNA test for strategic reasons. He is now asking for access to the DNA sample retrieved from the victim so that he can carry out a better DNA test, and he is asking that the Supreme Court declare that access to DNA evidence is a fundamental right guaranteed by the 14th Amendment's Due Process clause.

The problem is that Osborne has never really claimed his innocence. He pleaded innocent at trial, but he has never signed any affidavit or claimed innocence under oath. Under Alaska law, if he made such a claim, under penalty of to perjury, he would be able to get a new court hearing with possible access to DNA evidence. The problems abound: if he signs such an affidavit, he will probably face perjury charges for the two signed (and detailed) confessions he made to the parole board, and the Alaska Assistant Attorney General at oral argument refused to promise that they wouldn't oppose Osborne's request for DNA even if he did request it. Osborne is in a kind of catch-22: if he gets the DNA evidence and is found innocent, he will face perjury charges and possible imprisonment for signing a false confession in an attempt to gain early release for crime he didn't commit. If the DNA evidence finds him guilty, he's wasted everyone's time and will remain in prison. Either way, he's in jail.

Several of the Justices, most notably Justice Alito and Chief Justice Roberts, seemed concerned with the possibility of gaming the system: a defendant at trial might choose to skip DNA tests with the hope that he is acquitted, then after a conviction he might raise the DNA issue in an attempt to get a second trial. The Court generally disfavors legal setups like this that allow "two bites at the apple."

Justice Souter, on the other hand, seemed concerned with the Alaska procedure requiring a defendant to swear innocence in order to get the DNA evidence: while the defendant knows whether he is guilty or innocent, he does not know what the DNA test will find, and the Alaska procedure requires him to swear that the evidence they want to present will be material to the case. Osborne doesn't know what the DNA test will find, so he cannot honestly swear that the results will change anything.

Also at issue in the case was the question of whether this kind of claim should be brought as a 1983 civil rights action or in a habeas corpus proceeding. Osborne's lawyer said that 1983 was appropriate because Osborne cannot claim the evidence he seeks will result in his release, but Justices pointed out that that was clearly his goal. Justice Scalia poked fun at the idea that Osborne just wanted to look at the evidence without intending to use it for his release.

The Justices seemed mixed on a variety of issues, so a prediction of the final vote count is difficult. My guess is that Osborne will get 2 or maybe 3 votes, with Justices Souter, Ginsburg, and maybe Stevens. Justice Breyer is unpredictable. Justices Roberts, (especially) Scalia, Kennedy, and Alito seemed to have very little sympathy for Osborne's position, and Thomas will probably be with them. My prediction: Osborne loses. The case will likely be decided in May or June.

Should the Supreme Court rule in favor of post trial DNA testing?

By Kayleigh Harvey - Talk Radio News Service

The issue of post-DNA testing is not a new one and is certainly not a resolved one. Currently 44 out of 50 states permit post trial DNA testing.

Today, Georgetown University Law Center hosted a discussion that heard from legal experts and the personal experiences of those who have suffered the injustice of wrong-imprisonment and have since been released due to DNA clearance.

Martin Anderson who was exonerated in 2002, after serving 15 years in prison for rape, said: “A lot of people don’t realize it, but when you are convicted of a serious crime, your name, your family name, your whole life stop, there is nothing you can do....there is evidence to prove someone innocent but the state refused to have it tested and have it done...once the testing was done it excluded me as being the rapist of the crime in 1982, but it also proved who the real attacker was. Today he is now in prison, for the crime I have spent 20 years trying to prove my innocence for.”

The discussion centered around the Supreme Court case of the District Attorney’s Office v. William G. Osborne, which will begin trial on March 2. Osborne is appealing for a DNA test to be granted, in order to prove his innocence against rape and attempted murder charges that he was sentenced to in 1993 in the state of Alaska. Alaska, is currently one of the six states that does not allow post trial DNA evidence to be submitted. Mr. Osborne is filing his appeal for DNA testing under the civil rights act.

Also speaking at the discussion was Michele Mallin, a rape victim whose accused assailant was exonerated posthumously by DNA testing. Mallin identified who she thought was her assailant, Timothy Cole, twice. Cole died whilst serving time in prison and DNA taken from his body proved that he in fact had not raped Ms. Mallin.
Ms. Mallin thought that Cole’s conviction had been based on DNA and her statement, but later found out that the conviction had been based purely on her testimony. Ms Mallin is now campaigning to clear Cole’s name. Ms. Mallin’s real attacker is serving time in prison for two other sexually motivated attacks.