Osborne, 32, has maintained since his arrest in 1993 that he was not involved in the brutal rape and beating of an Anchorage prostitute that year near Earthquake Park. He says that the state convicted the wrong man and that he can prove it, if they would just let him retest hair and semen found at the crime scene using DNA technology more advanced than what was available at the time.

But the state says no. It insists that even if the DNA came back as someone else's, the results still would not prove Osborne innocent. He was identified by the victim, prosecutors say, and fingered by co-defendant Dexter Jackson, who also went to prison. So what's the point?

The state's refusal to allow the testing has provoked the first legal battle in Alaska over post-conviction DNA testing -- an issue most states have already wrestled with and made laws about. The New York-based Innocence Project, whose intervention on DNA issues has helped free more than 80 wrongly convicted people across the country, has sued the state on Osborne's behalf.

"We want the state of Alaska to get with the rest of the country in allowing post-conviction DNA testing," said Colin Starger, staff attorney for the Innocence Project.

Prosecutors leaned heavily on the biological evidence to sway jurors during Osborne's 1993 trial, his lawyers say. Eyewitness identification is notoriously unreliable and the co-defendant may have had his own reasons for lying, they say. Retesting the hair and semen -- at Osborne's expense -- could help determine if what he's saying is true: that it wasn't him.

If it turns out the hair and semen belong to someone else, Osborne wouldn't automatically be freed, the lawyers said. It might just mean a new trial, where the state could convict him again without using it.

Two separate civil suits -- one in federal court and one in state court -- are now working their way through the system, demanding that the state hand over the evidence for testing. The federal suit, filed by the Innocence Project, went before three judges of the 9th U.S. Circuit Court of Appeals last month.

It was not the state's best day.

The short presentation at the Federal Building in downtown Anchorage started with local attorney Bob Bundy, a former state and federal prosecutor, arguing on behalf of Osborne and the Innocence Project.

The judges had been briefed on the background of the case. Press accounts and court records stemming from the 1993 attack laid it out this way:

DENIAL FROM THE START

The victim, a prostitute and drug addict, told authorities she was trolling for customers near Chilkoot Charlie's on March 22 of that year when two men in a red Nissan picked her up and agreed to pay her $100 to have sex with them.

The men refused to take the woman to her usual transaction site in Spenard, instead driving her to a cul-de-sac at Earthquake Park. From the witness stand at Osborne's trial, she said the pair refused to pay for sex, raped her, beat her with a club, grazed her with a shot, buried her in the snow and left her for dead.

Jackson and Osborne were charged. A Swiss Army knife taken from the victim was found on Jackson, who initially denied any involvement but then claimed he and Osborne had consensual sex with the woman. From the get-go, Osborne denied any part in the attack, but he and Jackson were tried together so Jackson's version undercut Osborne's denial with jurors. The victim said a blue condom was used and police tested one found at the scene.

The results, using an early type of testing, matched the DNA to 16 percent of the African American population, a group that included Osborne.

Osborne asked his attorney to do more advanced testing, but she refused, strategizing that the first results actually helped him ---- they showed the semen could have come from any number of people. Further testing might narrow it to Osborne, she reasoned. Clients often lie to their lawyers.

It is unclear how much weight jurors put on the biological evidence, but in the end they convicted both men. Osborne is "currently incarcerated serving a 26-year sentence for horrendous crimes -- kidnapping, sex assault and assault," Bundy told the 9th Circuit judges last month. "Mr. Osborne has steadfastly maintained from the beginning that he is innocent of these crimes."

There are now tests, Bundy said, that could identify the source of the DNA "virtually to elimination of everybody else on the planet."

For at least four years, state prosecutors have flatly refused to allow this test, court records show.

Although the legal issue before the appeals court was essentially whether Osborne can file in federal court without first exhausting his options in state court, the judges quickly zeroed in on the real question: Why is the state refusing to allow the test?

"There's nothing preventing you from simply giving him this evidence," Judge William Fletcher said to assistant attorney general Nancy Simel. "Why don't you do it?"

"Well, there's a number of reasons for it," Simel responded, "but we're not here to argue the merits of that today."

"Well, but I asked you a question," Fletcher said, more firmly.

Simel stonewalled. The judges seemed puzzled. The courtroom spectators, mostly other lawyers, shuffled in their seats and eyed each other during the unusual and tense exchange.

"It's a really simple question," Fletcher pressed. "And as a practical matter, we have this evidence sitting there that may or may not clear this man ..."

"Correct."

"And you have it in your custody and you're refusing to hand it over -- how come?"

"Because we don't think that Mr. Osborne satisfies the requirements for handing over evidence in this case. ... It has to do with complicated issues of fact and --"

"You know it's a simple question, and I don't think the answer has to be that complicated," Fletcher said. "... I don't get it yet."

"Well, be that as it may, that has not been litigated yet," Simel said. "And I am not willing or able in the sense of answering the question in the context of this case."

The argument continued, and at one point, Simel even told the judge, who was in mid-sentence, to hold on a second.

The exchange continued:

JUDGE: "... Pretty straightforward -- hand it over."

SIMEL: "I understand."

JUDGE: "And you don't want to do it."

SIMEL: "That is correct."

JUDGE: "And you're really not willing to tell me why. But, I guess you'll tell somebody sometime."

SIMEL: "Not in this instance. Not at this time, is the answer."

THE OTHER EVIDENCE

Dean Guaneli, Alaska's chief assistant attorney general in the criminal division, said in an interview after the oral argument that the state stands firm in its belief that the biological evidence in Osborne's case should not be retested. "We think the conviction was valid. ... We're confident in it. We feel there is no need to go back and revisit the case."

The victim identified Osborne as a perpetrator, he said. And so did Jackson. "This is why we are fighting this case."

If the DNA results -- broad as they were -- had been the only evidence in the case, Guaneli said, "it's hard to imagine the jury would have convicted."

And then there is the idea of finality. "There's a strong interest in saying a case is over," he said, "that the laws and Constitution were applied, and applied fairly and we need to move on. I think that needs to be carefully considered. We don't want innocent people convicted, but we don't think that this guy fits into that category."

Starger of the Innocence Project disagreed: "DNA can only help advance the cause of truth here," he said. "It doesn't hurt the cause of finality to have the test done."

Randall Cavanaugh, Osborne's attorney in the state suit, said the victim's identification of Osborne was uncertain from the beginning.

The woman, he said, was upset and stressed out at the time of the assault, Cavanaugh said. She had a crack pipe on her; she had bad eyesight and wasn't wearing her glasses or contacts; she initially lied to police about what happened; she had a head injury; it was dark out except for a dome light in the vehicle; and the initial description the woman gave police of the second man didn't quite fit Osborne, Cavanaugh said: It was 9 years off in age, 3 inches off in height, up to 45 pounds off in weight and said he didn't have facial hair when witnesses testified he had a mustache.

Also worrisome, he said, the victim did not seem certain when she picked Osborne from a photo lineup. She said that he was "most familiar, along with others," Cavanaugh said, and "most likely to have been the passenger."

"We think she was very wrong with her identification."

Guaneli noted that the jury had time to size up the victim's credibility during her testimony. "This wasn't a situation where she was just there for a few seconds," he said of the attack. "This was a long, drawn-out affair."

Osborne's attorneys can argue that victims are always under stress and therefore prone to mistakes, Guaneli said, "but what do they say about the other guy?"

Cavanaugh said Jackson could have had a lot of motives for lying; maybe he was covering up for someone. Efforts to interview Jackson about it have been unsuccessful, Cavanaugh said.

The bottom line is, the state used the blue condom and the crude DNA results to damn Osborne to the jury, Cavanaugh said, so they ought to let him re-test now.

"I think they're just afraid of the results."

OTHER STATES HAVE LAWS

The federal government and about 40 states have laws covering post-conviction DNA testing, said Starger, the Innocence Project lawyer. Alaska does not.

That may be because the issue doesn't come up here very often, Guaneli said. Alaska has no death penalty or record of miscarriages of justice, he said, two things likely to raise the issue.

The Attorney General's Office has no written opinion or guidelines on how to handle requests for post-conviction DNA testing, Guaneli said. Certainly prosecutors would consider re-testing biological evidence "if we believed that testing would be meaningful in determining someone's innocence," he said.

Until the testing is done, Starger said, no one knows "whether or not the results will support his efforts to get a new trial."

According to the Innocence Project, a significant number of post-conviction DNA tests requested by defendants end up further implicating them.

Why they demand DNA tests when they know they committed the crime "would be the subject for a great psychological study," an Innocence Project attorney told the Los Angeles Times in 2003. "Maybe after 15 years of telling everyone you're innocent, you start to believe yourself."

As for the broader question of whether Alaska needs a law to spell out when post-conviction DNA testing should be allowed, Guaneli said he is not familiar with what other states do, but that he has reservations.

"We don't want to find ourselves in a situation where we have to preserve all this evidence and do all this retesting when it's not going to serve any purpose" he said. "We worry that it's a never-ending process. There are already ways defendants can string things along for years."

He added later: "If there was a state law to do so in a case like (Osborne's), we would object to that."

Osborne's lawyers say the "process" is not more important than the possibility that an innocent man is spending his youth in prison for a crime he didn't commit. If the state is so confident of Osborne's guilt, Bundy said, then the DNA test will prove they are right.

"Why would anybody be afraid of the truth?" he said.

Osborne's lawsuit against the state is already paving the way for other Alaskans seeking post-conviction DNA testing. In a recent decision in the case, the Alaska Court of Appeals gave the Superior Court guidelines for determining when post-conviction DNA testing should be allowed -- a precedent that attorneys can point to in the future.

The judge in Osborne's case has not yet ruled on whether he meets the criteria.

Daily News reporter Tataboline Brant can be reached at tbrant@adn.com or 257-4321.