Wednesday, March 4, 2009

Our view: DNA testing

Our view: DNA testing

Lack of law in Alaska leads to case at U.S. Supreme Court

Published: March 2nd, 2009 07:34 PMLast Modified: March 2nd, 2009 07:34 PM

Does convicted Alaska rapist William Osborne have a federal constitutional right to run DNA tests on evidence that might exonerate him? The U.S. Supreme Court is tackling that question. The justices heard arguments in the case Monday.

Regardless of how the court rules, it is Alaska's shame that we are one of only six states that has no law allowing some kind of post-conviction DNA testing. Courts are being asked to fill this legal void, so that state prosecutors no longer have total control over this critical decision.

In Osborne's case, prosecutors steadfastly refuse to allow new DNA testing. They say justice was done. He was identified by the victim and implicated by his co-defendant. Prosecutors note that when he sought parole, he admitted to the crime.

Those aren't conclusive reasons to deny testing in this case.

Eyewitness identifications are notoriously unreliable. A friend of the court brief supporting Osborne's side of the case comes from prosecutors who note that "Often times (individuals exonerated by DNA) were positively identified by multiple eyewitnesses."

Co-defendants can have their own motives for falsely implicating others. And the Innocence Project has found more than 50 cases where DNA testing exonerated innocent people who had confessed.

Today's DNA tests are more sophisticated than the test used to convict Osborne in the early 1990s. That test showed Osborne was one among millions of African-American males whose DNA matched the sample found in the condom used by the rapist. Now DNA testing can essentially match samples to a specific individual. In many exonerations, DNA testing has identified the actual perpetrator, who had been free to commit further crimes.

If Osborne's DNA is not in the condom, he probably was wrongfully convicted of rape. He might still be guilty of assault or kidnapping in the case.

Osborne is not the most sympathetic character ever to seek potential exoneration through new DNA testing. Released on parole after serving 14 years for the rape, he was convicted of robbery and is back behind bars. He may well be one of the many convicts who has sought DNA testing, only to see the test confirm their guilt.

But Osborne's case has highlighted on important gap in Alaska law. Post-conviction DNA testing is a powerful tool for ensuring that the justice system has convicted the right person. Alaska needs a system for deciding when a convicted person has good cause to seek new DNA tests. Since legislators haven't set up that system, it looks like the courts will have to do the job for them.

BOTTOM LINE: All but six states provide for some kind of post-conviction DNA testing where it might establish innocence. Alaska should too.

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