Criminal Law

Osborne: Due Process & DNA Tests after Conviction

In 1993, two men in Alaska sexually assaulted and beat a woman. Semen from a condom left at the scene led to William Osborne's arrest; a basic DNA test was performed on the evidence and resulted in a match. However, 15% of all African-Americans would have matched the sample using that test. For strategic reasons, Osborne's lawyer decided he'd be better off using only the first test results instead of potentially confirming his guilt with the more advanced test. Osborne was convicted. He's now trying to reverse his conviction using the more advanced DNA test.

Alaska is one of four states that currently don't have laws concerning DNA testing after a conviction. So far, lawmakers decided not to allow Osborne to access the evidence for testing. They claim Osborne's attorney made a reasonable decision to allow only the basic and less-accurate form of testing for his trial, and now has no right to re-examine the evidence to challenge his guilty verdict. However, he argues that denying him this access violates his due process right guaranteed by the 14th Amendment of the Constitution.

The State and Federal Appeals Process

So how does a criminal case in Alaska make it all the way to the US Supreme Court? The case first made its way through the state appeals process. This process is similar in every state. Osborne appealed to the Alaska Superior Court after the jury's guilty verdict. That court determined Osborne received a fair trial and denied an appeal.

He and his new lawyer appealed that decision to the Alaska Court of Appeals. That court also determined he received a fair trial so he wouldn't get access to the evidence. Osborne had one last chance to appeal to the Alaska Supreme Court, but that Court chose not to take his case, which isn't unusual.

Then Osborne took his case to the federal courts. He did this because his lawyer felt the government (the Alaska District Attorney's Office) violated his constitutional right by not allowing access to evidence that could release him. Osborne started at the district court level and then appealed his unfavorable decision to the Ninth Circuit Court of Appeals. There are 14 circuit courts covering all states and US territories.

The Ninth Circuit covers the West Coast. The district attorney's office lost at that level and applied to the US Supreme Court to hear the case. To decide if they will hear the case, the nine Supreme Court justices first review the application, and if four of those nine believe the case is important to analyze, they will hear the case. They only hear 3-5% of the cases that apply, or about 100 cases a year.

Post-Conviction Access to Evidence for DNA Testing

Osborne's argument focuses on his due process right to retest the DNA from the condom using the more accurate DNA test that wasn't available to him at the time of his trial. He argues this would ensure a fair process. In addition, he argues that Alaska is violating its duty to seek justice by refusing to give him access to the evidence, even after admitting it could prove his innocence.

On the other hand, the Alaska District Attorney feels the state appeals court's conclusion that Osborne had a fair trial and a competent attorney is correct. It also doesn't believe Osborne has a right to the evidence because he's requesting it to prove a freestanding claim of innocence, not to prove an underlying substantive claim of improper conduct by the prosecutor or an ineffectual defense attorney.

Finally, the state argues that due process doesn't require that "every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person." Organizations supporting this claim would give convicted criminals the opportunity to flood the court system with frivolous claims.

The Supreme Court heard oral arguments from both sides on March 2, 2009. The court's decision should come in the months ahead so keep an eye out for the results of this pivotal case. William Osborne and State of Alaska will be the parties.

Questions for Your Attorney

  • If someone was convicted of a crime and is currently in prison, is there anything that can be done to preserve DNA evidence, pending US Supreme Court review of due process issues? Isn't it important to preserve evidence so there's something to test?
  • What would the impact be if new DNA testing is allowed, and results aren't at least consistent with prior results? Would conclusive results be needed to be of use in challenging a conviction? What if more testing creates more questions?
  • If DNA testing with current methods is allowed, how long would it take to see results and obtain relief, both from labs analyzing evidence and the legal system?

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