Anchorage Daily News

Convicts have no constitutional right to DNA evidence testing that might prove their innocence after they have been found guilty, the U.S. Supreme Court ruled Thursday in an Alaska case.

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William Osborne

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The 5-4 decision comes in the case of convicted rapist William Osborne. He had won a federal appeals court ruling that said he was entitled to a test of a blue condom believed to be the one used in the assault on a Anchorage prostitute back in March 1993. The woman was raped, beaten, shot and left for dead in the snow. Osborne, who has been in court over the matter for years, argued the testing could prove once and for all his innocence or his guilt.

The district attorney's office fought his request, and the Supreme Court sided with prosecutors, ruling in a decision that applies nationwide that states have adequate procedures for dealing with DNA evidence.

DNA tests today are much more sophisticated than those available even in the 1990s. Most states and the federal government have specific statutes allowing for DNA testing after a conviction, so the ruling is not expected to stir broad changes.

So far, 240 people have been exonerated through DNA testing after convictions, according to the New York-based Innocence Project, which represented Osborne before the Supreme Court.

In Alaska, a state law allows convicts to challenge a conviction in cases with compelling new evidence. By taking his case to federal court, Osborne tried to side-step state procedures that may have allowed the testing, Chief Justice John Roberts wrote in the majority opinion.

"Federal courts may upset a State's post-conviction relief procedures only if they are fundamentally inadequate to vindicate the substantive rights provided," Chief Justice John Roberts wrote for the majority. "We see nothing inadequate about the procedures Alaska has provided to vindicate its state right to postconviction relief in general, and nothing inadequate about how those procedures apply to those who seek access to DNA evidence."

But Justice John Paul Stevens said in dissent that the state procedure has not worked for Osborne.

"The DNA test Osborne seeks is a simple one, its costs modest and its results uniquely precise," Stevens wrote.

Alaska is one of just three states without a specific statute allowing for DNA testing after a conviction, and the laws in some states only apply in limited circumstances, such as in Kentucky and Alabama, where only death row inmates can seek the testing, said Nina Morrison, one of the Innocence Project lawyers who represented Osborne.

When state procedures don't exist or are too restrictive, the decision appears to leave open the possibility of going through federal court, Morrison said.

Lawyers for the state were thrilled with the ruling. Had it gone the other way, states could have been forced to hold onto evidence forever, on the chance that new tests would materialize down the road, said Richard Svobodny, Alaska deputy attorney general over criminal matters.

"Even though we don't have a specific DNA statute, what we have is perfectly adequate. More than adequate," said Ken Rosenstein, the lead lawyer for the state in the Osborne appeal.

Still, they acknowledge no Alaska convict has ever had DNA testing of evidence after a conviction. A court ruled in favor of one convict, but by the time the test was attempted, the evidence had been destroyed.

Not many have asked. Rosenstein said when he queried prosecutors statewide, they knew of only six or seven. Just one, convicted murderer Gregory Marino, is awaiting a decision by the attorney general's office on whether to allow the testing, he said.

Osborne, 37, may soon make a similar request, said Morrison, who spoke with him on Thursday.

"He without hesitation told me he wants to keep fighting for DNA testing," she said.

In 2007, after serving 14 years for kidnapping, rape and assault, Osborne got out of prison. To win release, he admitted his guilt to the parole board.

Six months later, he was accused of being part of a group of masked men who stormed a home looking for drugs and money.

He now is serving 10 years for the robbery, as well as another six years that had been hanging over him in the rape case.

A bill to allow post-conviction DNA testing was introduced this year but it needs work, said state Rep. Jay Ramras, R-Fairbanks and chairman of the House Judiciary Committee.

His counterpart in the Senate, Anchorage Democrat and former state prosecutor Hollis French, said any legislation for post-conviction DNA testing will need to balance the need for finality in criminal cases with the need to allow proof of innocence to come before a court.

Find Lisa Demer online at adn.com/contact/ldemer or call 257-4390.

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