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The DNA Testing Case

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Update: Mark Sherman's post-argument story is here.
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Post-conviction DNA testing is on the U.S. Supreme Court's argument docket this morning in District Attorney's Office v. Osborne. The issue, however, is not about access to critical evidence for a simple test that may release a possibly innocent person from undeserved incarceration. The issue is about testing sought by a person who has freely admitted his guilt, who could have had the test done at the time of trial and passed, who has already been released from prison for the original crime, and who is now incarcerated on new charges. The evidence would not necessarily exonerate him if it tested negative, and the proposed testing goes far beyond the allegedly critical evidence to other evidence impacting on the privacy of the victim of an exceptionally brutal crime. Mark Sherman has this story for AP:

Osborne himself admitted his guilt under oath to the parole board in 2004.

Osborne's lawyer passed up advanced DNA testing at the time of his trial, fearing it could conclusively link him to the crime. A less refined test done by the state showed that the semen did not belong to other suspects, but could be Osborne's, as well as about 15 percent of all African-American men.

The results of the case could be limited. Forty-four states and the federal government have laws that give convicts access to DNA testing....

Alaska has no DNA testing law, but its Court of Appeals has given people a path to follow to gain access to the evidence. It ruled Osborne did not meet the standards it set out.

And there is more, from Paul Cassell's brief for the victim.
Footnote 3, page 3:

In his 2004 application for parole, Osborne wrote:
While I was out with friends I made a call to my codefendant [i.e., Dexter Jackson] to come pick me up from the Space Station. . . . [K.G.] got in the car with us, and we all went out to Earthquake Park. Once there[,] I pulled out a gun and ordered [K.G.] to take off her clothes. After she did, me and my codefendant took turns having sex with her. After we were done[,] I ordered [K.G.] to get out of the car. She refused to do so[,] and kept refusing. I attempted to physically remove her from the car, and eventually got her out. My codefendant became enraged . . . and [he] began to assault her with a stick. I also assaulted [K.G.] by kicking and punching her. After a few seconds[,] we both stopped, partially kicked snow on [K.G.], and then got in my codefendant[']s car and drove off[,] leaving her at the park."

Osborne v. State, 163 P.3d 973, 977 (Alaska Ct. App. 2007). Osborne conveniently forgot to mention that he shot K.G. in the head and left her to die. But even setting that aside, in view of Osborne's detailed confession, it is hard to view his latest legal maneuvers as anything other than a ploy to escape justice by manufacturing some unwarranted doubt about his guilt.

The primary evidence that Osborne wants to test is a condom found near the scene of the rape that might have been used by the rapist or might not. But that is not all:

K.G. has important privacy interests at stake in the DNA tests that Osborne proposes to conduct. Osborne apparently plans to test not only a condom that could possibly have been used in the attack, but also K.G.'s clothing--a forensic investigation that could reveal other sexual partners that she has had at times far distant from the rape. Osborne also apparently intends to run tests on K.G.'s blood and extract DNA information about her. These tests threaten to intrude on K.G.'s privacy.

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That this guy can ever walk the streets again is a travesty.

With respect to the victim's privacy. Certainly, the issue is that, with respect to post-conviction re-examination of the case, the state can weigh (as part of its concern with finality) the interests that victims have in keeping matters closed.

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