Judge's ruling in DNA case presses state toward testing

The state must allow DNA testing on a piece of evidence from a 1993 rape case where one of the men convicted says he is innocent, a federal judge has ruled.

The order issued last week is a victory for William Osborne, who is serving a 26-year sentence after an Anchorage jury found him guilty of rape and kidnapping. Osborne has been fighting for years for the right to test a blue condom for evidence that someone else took part in a two-man Earthquake Park attack on a prostitute. The condom was used against Osborne at trial.

His attorneys say it's ridiculous that the state has refused to let them get the condom tested since it could show once and for all whether the right man is being punished.

But Department of Law officials say they will ask the judge to delay enforcement of his order so the state can appeal it to the 9th U.S. Circuit Court of Appeals.

Assistant attorney general Jay Fayette anticipated the question many will ask: Why would the state sit on evidence that could clear a wronged man?

"The answer is this," Fayette said. "Nobody wants to have an innocent man in jail -- nobody. Not the defense guys, not the state guys. But here's a case where Mr. Osborne has admitted in writing and on tape that he is guilty. His lawyers can say what they want and try to explain his admissions but he's admitted he's the right guy."

During his trial and when he filed his request for DNA testing, Osborne maintained he was innocent. But in August 2004, in an appearance before the Alaska Parole Board, he said he was guilty. An admission of guilt is generally a prerequisite to being granted early release.

Osborne's attorneys say he did it only because he was desperate to get out of prison.

Robert Bundy, one of Osborne's attorneys, rejected the state's explanation for fighting the DNA test.

"They say there's no way he's innocent," Bundy said. "Maybe they're right, maybe they're not. I don't know. But it seems to me that it's pretty fundamental that you want to make sure if you're convicting people and putting them in jail for (26) years that you've got the right person."

Prosecutors have argued that plenty of other evidence supports Osborne's conviction, even if it turns out the condom was not used by him.

Fayette said the state is also concerned with closure -- with providing an ending for victims so they can move on. He does not want to make the victim testify again if Osborne is retried, he said.

ATTRACTING INNOCENCE

Osborne's case attracted support from the Innocence Project, a New York nonprofit that champions post-conviction DNA testing. Nearly 200 wrongly convicted people have been freed as a result of such tests, the organization says. Osborne's was the first case the project accepted in Alaska.

Peter Neufeld, co-director of the Innocence Project, called Alaska's opposition to post-conviction DNA testing "troubling" and "silly."

Most states and prosecutors nationally "reject the position being taken by the Alaskan attorney general and ... believe that truth trumps finality in every case," Neufeld said.

Discovering that the wrong person is imprisoned can also help turn up the true criminal, Neufeld added. "To bury one's head in the sand under the pretext of closure and finality should be offensive to the public," he said.

Tests performed at the time of the crime showed that the semen on the blue condom matched 16 percent of the black population, including Osborne. He wanted more advanced testing done, but his attorney at the time refused, strategizing that the inconclusive results helped because they showed the semen could have come from lots of other people.

DNA testing is now more sophisticated, said Randall Cavanaugh, another Osborne attorney. It can match the semen to a specific person -- or eliminate a specific person.

"Think of the implications," Cavanaugh said. "What happens if it turns out not to be him? Nobody wants to think the system is fallible. But first we've got to make sure the proper person is charged and convicted. ... I can understand the state's concern, but they should be more interested in justice, not in protecting their reputation of infallibility."

At least 39 states have post-conviction DNA testing laws. Alaska does not. Generally, testing is allowed only in cases where advanced technology was not available at the time of trial.

Rep. Gabrielle LeDoux, R-Kodiak, tried to change Alaska law during the last legislative session when she introduced a bill to establish post-conviction DNA testing guidelines.

"I read about the Innocence Project and it seemed like a good idea to make sure that people who were in jail for a crime actually committed the crime," LeDoux said.

"You don't want innocent people in jail and ... if you've got the wrong guy in jail, there's some murderer or rapist roaming around who hasn't been charged or convicted. So it seemed like a win-win for everybody."

That's apparently not how the Department of Law sees it. The department opposed LeDoux's bill and "did a pretty good job of lobbying against it," she said.

The bill died without being voted on.

"Basically they argued you have to have certainty and at some point the appeals have to stop," LeDoux said. "But I figure you don't want finality if finality has the wrong guy in jail."

The state has another strong objection to post-conviction DNA testing, Fayette said. Granting Osborne's request would trigger "dozens if not hundreds" of convicts "to try to get a bite at a second trial when everybody else only has one trial," he said.

Absolutely untrue, said Neufeld. New York was the first state to pass laws about post-conviction testing and has seen no more than a dozen applicants a year, he said.

COMPLETING HIS TIME

Osborne has already served a large portion of his sentence. According to Department of Corrections records, he is scheduled to be released on parole in June 2007. He is currently at the Spring Creek Correctional Center in Seward.

If Judge Ralph Beistline refuses the state's request for a delay and orders prosecutors to make the condom available, the Innocence Project will pay for the test, Neufeld said.

"We're not saying (Osborne) necessarily gets out," Neufeld said. "Indeed a test could confirm guilt. But what is the harm in doing a scientific test?"

In Juneau for the special session, LeDoux said she will again introduce a bill aimed at establishing post-conviction DNA testing for Alaska. Sometimes things in Juneau take a couple of sessions to catch on, she said.

"We are one of the very last states to do this," she said. "And people are now at least thinking about it."