High court to hear Alaska man's DNA appeal

February 9, 2009

By Lisa Demer ANCHORAGE DAILY NEWS Anchorage, AK

Even the defense says it was a brutal crime.

On a cold night in March 1993, a Spenard prostitute got into a red Nissan with two men and agreed to oral sex at a spot nearby. Instead, she was taken to Earthquake Park, where she was raped, beaten, shot, buried in the snow and left for dead.

An Anchorage jury convicted two Fort Richardson soldiers of rape, kidnapping and assault.

All these years later, one of the men, William Osborne, continues to fight for a sophisticated DNA test his lawyers say could prove him innocent.

That type of DNA test can prove identity beyond doubt, but wasn't available during his trial in 1993. His push to retest the contents of a blue condom -- found at the scene and used against him before a jury more than 15 years ago -- now is before the U.S. Supreme Court. Arguments are set for March 2.

The issue is fundamental: Do prisoners have a constitutional right to re-examine evidence after they are convicted?

THE TWO SIDES

The state's answer: "No."

The state agrees that testing the condom could prove Osborne didn't do it. But the state also says there's so much evidence of his guilt that a new DNA test would probably just reaffirm that.

"If there was other doubtful evidence that supported his ... possible innocence, creating some sort of probability that he might be innocent, things might be different," said Ken Rosenstein, the state's lead lawyer on the case. "But it's merely a wish and a prayer at this point."

And that's not reason enough to call a jury verdict into question, Rosenstein said.

Osborne's lawyers are incredulous at the state's position. If it's probably going to cement his guilt, and the defense is willing to pay for the $1,000 test, why not just do it? The test can provide a final answer, perhaps put the lie to Osborne's all-or-nothing trial defense: He wasn't even there that night, his lawyer told jurors. The victim's testimony was a case of mistaken identity.

The battle over Osborne's test has been taken up by The Innocence Project, a New York-based group that goes to court to free wrongfully convicted people through DNA evidence, and also pushes for laws allowing such testing and other reforms.

"We're not talking about vacating a conviction or a retrial or anything like that. We're just talking about a test. What's the big deal? Why can't you give them the test?" said Peter Neufeld, co-director of the Innocence Project.

DNA is different than any other type of evidence -- eye witnesses and recantations and even fingerprints, he said. "DNA is this truth machine."

Alaska legislators are watching the case to see if they need to craft a DNA testing law here, especially against the backdrop of a legislative push in Juneau for a death penalty. Other states, prosecutors, victims and criminal defense lawyers are watching too. One of 10 groups that have filed briefs with the U.S. Supreme Court supporting one side or the other is a collection of prosecutors. They're for the test.

As for Osborne himself, he was paroled in 2007 after serving 14 years on the rape case. Six months later, he was arrested on new charges stemming from a home invasion robbery. In January, he agreed to a plea deal that calls for another 16 years in prison.

He's 36 years old and has been incarcerated most of his adult life. He never expected his request for a DNA test to end up before the U.S. Supreme Court. He doesn't expect that it will make much difference for him.

"I just hope it helps somebody, somewhere down the line, somehow," he said in a jailhouse interview.

ALASKA STANDS ALONE

As far as Osborne's lawyers can tell, Alaska is the only state that has never allowed a convicted defendant to test a DNA sample.

Alaska is one of just six states that have no law specifically permitting inmates access to post-conviction DNA testing. In the other five, either prosecutors consented to testing or courts ordered it, without a law, Neufeld said. No one wants an innocent person imprisoned, he said.

"Most prosecutors want to do justice and they want to get to the truth," he said. Even if they believe deep down that a defendant is guilty, many also reason, "Fine, I'll give them the test. What's the downside? It's just a test -- it's not letting them out of prison."

The state says it's not that simple.

"That might be true but then everybody who is convicted is going to want to have the testing and convictions will never be final. There will never be justice. There will be request after request," Rosenstein said.

Osborne has been trying to get the more sophisticated DNA test since 1997. He's gone to state court, federal court, sometimes both at the same time. In April 2008, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled in his favor. It said he has the right to the DNA test. No matter the result -- guilty or innocent -- "the truth-seeking function of the criminal justice system is furthered in either case," the court said.

The state is appealing that ruling, which is how the case got to the U.S. Supreme Court.

Despite its 12-year fight to block the test for Osborne, the state would be willing to do a DNA test if prosecutors believed it could truly prove a convicted person innocent, said Richard Svobodny, Alaska's deputy attorney general over the criminal division.

Not many Alaska prisoners have asked, Svobodny said. He knows of just two: Osborne and Gregory Marino, whose request was made last year.

Marino, a crack addict, was convicted in 1994 of stabbing a woman to death and leaving her 7-year-old cousin for dead with a slashed throat. His DNA was not found at the bloody crime scene, but he admitted being there an hour before the attack, and the little girl, who knew him, identified him, Svobodny said.

Marino's request for more sophisticated testing "is sitting on my desk," Svobodny said.

Alaska has no guidelines for post-conviction DNA testing. A small group now is working on developing some, in part because of the Osborne case, Svobodny said.

HOW GOOD IS DNA TESTING?

Around the country, 232 people have been exonerated through post-conviction DNA testing. Some had confessed. Some even pleaded guilty. But when DNA testing showed they couldn't have done the crime, they were set free, after spending an average of 12 years in prison, according to the Innocence Project.

Consider the Mississippi case of Kennedy Brewer. He spent seven years on death row after being convicted of killing his girlfriend's 3-year-old daughter back in 1992. He stayed in jail even after a DNA test in 2001 proved he didn't commit the crime; prosecutors wanted to retry him anyhow, according to the Innocence Project. Its investigation led to the real killer, who confessed to the crime and whose DNA matched the semen found on the little girl, according to the project. In 2008, charges against Brewer were dropped and he was exonerated.

And it cuts both ways. Nearly half the post-conviction DNA tests requested by prisoners end up reaffirming guilt -- 42 percent of those handled by the Innocence Project.

The old DNA test done by the prosecution for Osborne's trial found that the fluid in the condom could have come from him. It also could have come from 15 percent to 16 percent of all African Americans, according to his lawyers.

The state argued for years that even if the semen in the condom was not Osborne's, that would prove nothing. Maybe the police picked up the wrong condom at Earthquake Park.

State lawyers finally conceded, in a recent filing to the Supreme Court, that a new DNA test could exonerate Osborne, but stressed that it wouldn't necessarily do so.

The test would absolutely clear him only if it found that cells on the outside of the condom belonged to the victim, and semen on the inside was not Osborne's, the state said.

THE EVIDENCE

Osborne's guilt or innocence is not really the focus of the DNA test case. The real question is whether Alaska prisoners in general have a constitutional right to re-test evidence using science not available when they were convicted.

State lawyers started out years ago denying the test would prove anything. Other evidence against Osborne was overwhelming, prosecutors said. He was seen with his co-defendant both before and after the rape, and some witnesses said he had blood on his clothing. The victim identified him, and Osborne's co-defendant implicated him.

Plus, years after his conviction, Osborne admitted the crime to the Alaska Parole Board, a confession one of his lawyers later said was a lie. Defendants often confess falsely to win release from a parole board or to negotiate a lighter sentence, his lawyers say.

Osborne pushed for a more discriminating DNA test before his trial. But his lawyer at the time was concerned the test -- which required a large and non-degraded sample -- might undercut the claim that he wasn't there.

"Who can argue that this crime wasn't awful?" said Bob Bundy, a former U.S. attorney who is working on Osborne's case. It would be an injustice to the victim if the person who did it got away with it, he said.

And unjust to Osborne if he's the wrong man, and never gets to prove it.

"DOUBLE CHECKING"

A key state senator says he's watching the Osborne case closely for guidance on a DNA testing law for Alaska.

"I'm waiting for the Supreme Court to rule," said Sen. Hollis French, a former prosecutor, now chairman of the Senate Judiciary Committee.

Both French, an Anchorage Democrat, and his House counterpart, Rep. Jay Ramras, a Fairbanks Republican, say DNA testing is likely to come up during debate on whether Alaska should institute a death penalty.

"I will go out of my way to make it a point that is one of the issues that we discuss," said Ramras, who isn't shy about whether he supports the death penalty. "Hell yeah!" he says.

French is generally opposed to a death penalty but said if one were instituted, Alaska would need to allow post-conviction DNA testing. "When the stakes are that high, it just increases the need for accuracy and double-checking, if you will," he said.

Ramras said he couldn't see adding new DNA testing at a time of pinched state revenues but also said that "nobody wants to see incarcerated people who didn't commit the crime stay in jail."

No legislation is likely until next year, and whatever lawmakers come up with won't open the door to everyone trying to get out of prison, French said.

"I still have a prosecutor inside of me," the senator said. "If I pick this up, I'm going to pass one that is tightly written."

OSBORNE'S VIEW

In a recent interview at Cook Inlet Pretrial Facility, Osborne was careful with his words. He never proclaimed his innocence. He said his lawyers don't want him to get into the details of the case.

Osborne comes across as calm and articulate. He seems resigned to whatever happens. His head is shaved and he has a graying beard. Last year while in prison, he married a woman he knew from long ago. She has young twins and they all visit him in jail.

Asked why he wants the test, he said: "It's going to resolve this case for once and for all as to whether or not I'll be able to prove my innocence or my guilt."

What would the test show? Osborne leaned back to think about it. "Can't really answer that question," he finally said.

Osborne was born and raised in South Carolina, graduated high school there. He said he was accepted into The Citadel but it was too expensive, so he joined the Army.

He was just 20 when he was arrested, had his 21st birthday in jail a few days later.

In the years since he's been gone, his mother, grandmother, aunt and three first cousins all died. A daughter he fathered as a teenager now is a teen herself.

In June 2007, after serving 14 years of a 21-year sentence for rape, kidnapping and assault, he was paroled. Six months later, he was accused of being part of a group of masked men who stormed a home looking for drugs and money, who duct-taped and pistol-whipped hostages.

On Jan. 30, he agreed to a plea bargain that requires him to serve 10 years for the robbery and another six years still hanging over him on the old case.

"Even if I was to be found innocent, I can't get back the time I've already done. It's time lost," he said. "So on a certain level, I don't even care about the case anymore because it's just gotten to the point where it's basically something from my past."

But he recognizes the issue is bigger than he is. He wants to win, he said, "so that the next person doesn't have to go through this for the next 12 years."