Thursday, April 3, 2008
Court: Prisoner Has Right to Post-Conviction DNA Test
By STEVEN M. ELLIS, Staff Writer
The Ninth U.S. Circuit Court of Appeals ruled yesterday that an Alaska prisoner has a limited due process right under the Fourteenth Amendment to access biological evidence that was used to convict him of kidnapping and sexual assault in order to conduct DNA testing that might exonerate him.
Unanimously affirming the decision of U.S. District Judge Ralph R. Beistline of the District of Alaska, the court held that authorities must allow William G. Osborne access to biological evidence used against him in order to conduct more precise DNA testing that was not available at the time of his conviction because Osborne has a potentially viable claim for post-conviction relief to which the test results would be material.
Osborne had sought access to the materials in order to challenge his 1994 conviction for his alleged role in a brutal attack on a female prostitute in Anchorage one year earlier.
The woman had claimed that two male clients upon whom she had agreed to perform oral sex drove her to a secluded area where one of them forced her to perform oral sex at gunpoint while the other engaged in intercourse with her while wearing a condom.
The victim claimed that the men beat her when she attempted to flee, and then fired the gun at her—grazing her head with a bullet—before partially burying her in the snow and leaving her for dead.
Both the victim and the co-assailant—who confessed his role in the crime—identified Osborne, and circumstantial evidence tied him to the crime.
Police also located the condom at the location the woman described, and the state’s crime lab subjected sperm found inside to “DQ Alpha” DNA testing, which, like ABO blood typing, reveals the alleles present at a single genetic locus. The test revealed a sperm type that ruled out other potential suspects, but which was shared by 14.7 to 16 percent of African Americans—like Osborne—and could be expected in one of every six or seven African American men.
A second, relatively more discriminating type of DNA testing was available at the time, but state crime lab experts felt the sample was too degraded to be useful while Osborne’s counsel declined to seek the testing for strategic reasons.
Police also located two pubic hairs, also consistent with an African American, that could not have come from any of the other potential suspects and which exhibited the same microscopic features as a sample of Osborne’s pubic hair.
Based on the identifications, the circumstantial evidence, and the results of the tests on the biological evidence, a jury convicted Osborne of kidnapping, first-degree assault, and two counts of first-degree sexual assault, and he was sentenced to 26 years imprisonment.
Osborne appealed his conviction at the state level, but was ultimately unsuccessful.
Meanwhile, he also brought an action in federal court under 42 U.S.C. § 1983 seeking to compel the district attorney’s office to allow him post-conviction access to the sperm and the two hairs so that he could subject them, at his own expense, to Short Tandem Repeat analysis and mitochondrial DNA analysis.
Unlike the original testing, which examined only one genetic locus, STR analysis examines 13 genetic loci, and has the power to produce a genetic profile shared by only one in a billion people. Mitochondrial DNA looks to cells’ mitochondria, and—in contrast to the other types of testing—does not require the presence of a root or a follicle in connection with a hair sample.
Both methods were unavailable to Osborne at the time of his trial, and were capable of conclusively excluding him as the source of the DNA.
After a number of proceedings, Osborne moved for summary judgment and Beistline ruled in his favor, holding that Osborne had a “very limited constitutional right” to access the evidence for further testing “under the unique and specific facts presented.”
On appeal, Senior Judge Melvin Brunetti said Beistline’s decision was correct based on the U.S. Supreme Court decision in Brady v. Maryland (1963) 373 U.S. 83 prohibiting pre-trial suppression of exculpatory evidence, and the Ninth Circuit’s extension of Brady to post-conviction proceedings in Thomas v. Goldsmith (1992) 979 F.2d 746. In the latter case, the court ordered the disclosure of potentially-exculpatory semen evidence in a habeas corpus proceeding because testing of the evidence was potentially material to a gateway showing of actual innocence.
“Osborne’s right to due process of law prohibits the State from denying him reasonable access to biological evidence for the purpose of further DNA testing, where that biological evidence was used to secure his conviction, the DNA testing is to be conducted using methods that were unavailable at the time of trial and are far more precise than the methods that were then available, such methods are capable of conclusively determining whether Osborne is the source of the genetic material, the testing can be conducted without cost or prejudice to the State, and the evidence is material to available forms of postconviction relief.”
Brunetti cautioned, however, that the holding did not set the standards by which all future cases were to be judged.
“We are presented with a certain set of circumstances presenting a meritorious case for disclosure,” he said, “and our analysis and holding are addressed to those circumstances only.”
Writing that questions such as “whether the scope of the right of post-conviction access should be broader or flexible to accommodate different circumstances, whether the materiality standard for postconviction access-to-evidence claims should be less stringent or defined in a different manner, and whether prisoners with a less compelling case might also be entitled to postconviction access” were all questions that did not need to be answered in deciding the case, Brunetti said the court was leaving them “for another day.”
Senior Judge Alfred T. Goodwin and Judge William A. Fletcher joined Brunetti in his opinion.
The case is Osborne v. District Attorney’s Office for the Third Judicial District, No. 06-35875.
Copyright 2008, Metropolitan News Company