Alaska's refusal to use a DNA test for true justice is shameful

Alaska's refusal to use a DNA test for true justice is shameful

By Robert Morgenthau

http://www.nydailynews.com/opinions/2009/02/27/2009-02-27_alaskas_refusal_to_use_a_dna_test_for_tr.html

Friday, February 27th 2009, 4:00 AM

In 1994, William Osborne was convicted in Alaska of a kidnapping and brutal rape.

Based on my reading of the case, he very likely is guilty. Among other things, he was identified by the victim. Witnesses saw him shortly before the attack with the co-defendant whose gun was fired during the crime, and whose car contained a stain matching the victim's blood. A relatively primitive DNA test was conducted on the contents of a condom left at the crime scene. The test showed that Osborne could have produced the semen - along with about one-sixth of the male African-American population. Given the evidence, one could hardly fault the jury for convicting.

But Osborne has consistently insisted that he is innocent. DNA testing was becoming more sophisticated even before his trial, and he directed his attorney to request that a new and conclusive test be done before trial, on the semen - but his attorney refused. Since 1997 Osborne has complained of his attorney's choice and asked his prosecutors to test the evidence. A test might cost about $2,000; a nonprofit group, the Innocence Project, has offered to pay for it.

The state admits that a DNA test now would be conclusive as to whether or not Osborne is guilty. But Alaska has no statute entitling anyone to post-conviction DNA testing, and the prosecution has simply refused to give Osborne access to the evidence. Instead, Alaska has fought tooth and nail to deny Osborne that access, in a decade-long legal battle that will soon culminate with a decision from the U.S. Supreme Court. The state's position has been endorsed in "friend of the court" briefs filed by the federal government, 31 individual states and the New York City Corporation Counsel.

But I am simply mystified by the prosecutors' course of conduct. Not every defendant can fairly claim entitlement to post-trial forensic testing. But when a defendant who has always protested innocence will pay for a test that will resolve that protest one way or the other, only stubbornness can explain denying him access to the evidence. What can Alaska be afraid of - finding that it has imprisoned the wrong man?

The story is told that when Galileo offered to let clerics determine with their own eyes that the moons of Jupiter circled that planet, they "knew" he must be wrong. And so they refused even to look through his telescope. Alaska's prosecutors are heirs to that not-so-proud tradition.

Given the numerous cases in which new evidence, including DNA evidence, has exonerated those who like Osborne seemed very likely guilty, a prosecutor owes it to the public to be open-minded with respect to requests like Osborne's. If such testing had, in 1997, shown that Osborne was guilty, it would have done no harm - and indeed saved the Alaska taxpayers a huge litigation bill. If Osborne had been shown to be innocent, he could have been released.

Alaska may have no statute requiring testing, but it likewise has no law that prevented the state from making the evidence available. I will leave it up the Supreme Court to tell us whether Osborne had a constitutional right to testing. But all of us are entitled to prosecutors with a more flexible mind-set than that revealed in this case.

Morgenthau is Manhattan district attorney.