Why the Supreme Court made the right choice in OSBORNE

The Supreme Court today released it’s decision in District Attorney’s Office v. Osborne (08-6). There’s been a lot of vapors about this case (even Instapundit got it wrong), so I’m going to stop commenting on this in other people’s posts, and write my own instead.

The crime:

On the evening of March 22, 1993, two men driving through Anchorage, Alaska, solicited sex from a female prostitute, K. G. She agreed to perform fellatio on both men for $100 and got in their car. The three spent some time looking for a place to stop and ended up in a deserted area near Earthquake Park. When K. G. demanded payment in advance, the two men pulled out a gun and forced her to perform fellatio on the driver while the passenger penetrated her vaginally, using a blue condom she had brought. The passenger then ordered K. G. out of the car and told her to lie face-down in the snow. Fearing for her life, she refused, and the two men choked her and beat her with the gun. When K. G. tried to flee, the passenger beat her with a wooden axe handle and shot her in the head while she lay on the ground. They kicked some snow on top of her and left her for dead.

The evidence:

At the scene of the crime, the police recovered a spent shell casing, the axe handle, some of K. G.’s clothing stained with blood, and the blue condom.
Six days later, two military police officers at Fort Richardson pulled over Dexter Jackson for flashing his headlights at another vehicle. In his car they discovered a gun (which matched the shell casing), as well as several items K. G. had been carrying the night of the attack… Jackson admitted that he had been the driver during the rape and assault, and told the police that William Osborne had been his passenger.
The State also performed DQ Alpha testing on sperm found in the blue condom. DQ Alpha testing is a relatively inexact form of DNA testing that can clear some wrongly accused individuals, but generally cannot narrow the perpetrator down to less than 5% of the population… The semen found on the condom had a genotype that matched a blood sample taken from Osborne, but not ones from Jackson, K. G., or a third suspect named James Hunter. Osborne is black, and approximately 16% of black individuals have such a genotype. In other words, the testing ruled out Jackson and Hunter as possible sources of the semen, and also ruled out over 80% of other black individuals.

The Trial:

Osborne and Jackson were convicted by an Alaska jury of kidnaping, assault, and sexual assault. They were acquitted of an additional count of sexual assault and of attempted murder.
Osborne then sought postconviction relief in Alaska state court. He claimed that he had asked his attorney, Sidney Billingslea, to seek more discriminating restriction-fragment-length-polymorphism (RFLP) DNA testing during trial, and argued that she was constitutionally ineffective for not doing so. (Billingslea testified that she had no memory of Osborne making such a request, but said she was “ ‘willing to accept’ ” that he had.) Billingslea testified that after investigation, she had concluded that further testing would do more harm than good. She planned to mount a defense of mistaken identity, and thought that the imprecision of the DQ Alpha test gave her “‘very good numbers in a mistaken identity, cross-racial identification case, where the victim was in the dark and had bad eyesight.’” Because she believed Osborne was guilty, “‘insisting on a more advanced . . . DNA test would have served to prove that Osborne committed the alleged crimes.’” The Alaska Court of Appeals concluded that Billingslea’s decision had been strategic and rejected Osborne’s claim.

The court relied heavily on the fact that Osborne had confessed to some of his crimes in a 2004 application for parole—in which it is a crime to lie. In this statement, Osborne acknowledged forcing K. G. to have sex at gunpoint, as well as beating her and covering her with snow. He repeated this confession before the parole board. Despite this acceptance of responsibility, the board did not grant him discretionary parole. In 2007, he was released on mandatory parole, but he has since been rearrested for another offense, and the State has petitioned to revoke this parole.

The Ruling:

  1. The Federal government, and 46 States, have rules in place for post-conviction access to DNA evidence. The elected governments of the States are actively confronting the challenges DNA technology poses to our criminal justice systems and our traditional notions of finality, as well as the opportunities it affords. To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response.
  2. Under the State’s general postconviction relief statute, a prisoner may challenge his conviction when “there exists evidence of material facts, not previously presented and heard by the court, that requires vacation of the conviction or sentence in the interest of justice.” Alaska Stat. §12.72.010(4) (2008). Such a claim is exempt from otherwise applicable time limits if “newly discovered evidence,” pursued with due diligence, “establishes by clear and convincing evidence that the applicant is innocent.” §12.72.020(b)(2). (Since he had the chance to get this evidence during his trial, and refused to take it, that means the evidence is not “new”, and so doesn’t qualify under Alaska Law.)
  3. A lot of verbiage on the type of appeal he should be using, and what kinds of things each type of appeal allows. IANAL, but what I could understand seemed reasonable.
  4. Having been found guilty, and exhausted his appeals, he now bears a presumption of guilt, rather than a presumption of innocence. (This is not new.)
  5. In other words, [Osborne] has not tried to use the process provided to him by the State or attempted to vindicate the liberty interest that is now the centerpiece of his claim. When Osborne did request DNA testing in state court, he sought RFLP testing that had been available at trial, not the STR testing he now seeks, and the state court relied on that fact in denying him testing under Alaska law.
  6. Establishing a freestanding right to access DNA evidence for testing would force us to act as policymakers, and our substantive-due-process rulemaking authority would not only have to cover the right of access but a myriad of other issues. We would soon have to decide if there is a constitutional obligation to preserve forensic evidence that might later be tested. If so, for how long? Would it be different for different types of evidence? Would the State also have some obligation to gather such evidence in the first place? How much, and when? No doubt there would be a miscellany of other minor directives. In this case, the evidence has already been gathered and preserved, but if we extend substantive due process to this area, these questions would be before us in short order, and it is hard to imagine what tools federal courts would use to answer them. At the end of the day, there is no reason to suppose that their answers to these questions would be any better than those of state courts and legislatures, and good reason to suspect the opposite.
  7. Alito (correct, IMHO) quotes an expert :“[F]orensic DNA testing rarely occurs [under] idyllic conditions. Crime scene DNA samples do not come from a single source obtained in immaculate conditions; they are messy assortments of multiple unknown persons, often collected in the most difficult conditions. The samples can be of poor quality due to exposure to heat, light, moisture, or other degrading elements. They can be of minimal or insufficient quantity, especially as investigators push DNA testing to its limits and seek profiles from a few cells retrieved from cigarette butts, envelopes, or soda cans. And most importantly, forensic samples often constitute a mixture of multiple persons, such that it is not clear whose profile is whose, or even how many profiles are in the sample at all. All of these factors make DNA testing in the forensic context far more subjective than simply reporting test results . . . .”
  8. I see no reason for such intervention in the present case. When a criminal defendant, for tactical purposes, passes up the opportunity for DNA testing at trial, that defendant, in my judgment, has no constitutional right to demand to perform DNA testing after conviction. Recognition of such a right would allow defendants to play games with the criminal justice system. A guilty defendant could forgo DNA testing at trial for fear that the results would confirm his guilt, and in the hope that the other evidence would be insufficient to persuade the jury to find him guilty. Then, after conviction, with nothing to lose, the defendant could demand DNA testing in the hope that some happy accident—for example, degradation or contamination of the evidence—would provide the basis for seeking postconviction relief. Denying the opportunity for such an attempt to game the criminal justice system should not shock the conscience of the Court.

This last part, to my mind, is key: He had the chance to do DNA testing at his trial, he (or at least his lawyer) passed on that chance, now, when it can’t hurt him, he wants the test.


Let’s be realistic here. He should have been found guilty of attempted murder. The only reason I can think of for the jury not to find him guilty was concern, concern caused by having 84% certainty from DNA evidence rather than 99% certainty. He gambled, he made his choice, now he gets to live with it.

A Generalized Right to Post-Conviction DNA Testing Carries Significant Risks

“But,” you say, “why shouldn’t we let anyone who wants to pay to get DNA testing to prove his innocence?” Simple: because it may be more likely to release guilty people, than innocent ones.

No test is perfect. Every test will have problems with false positives (saying yes when it should have said no), and false negatives (saying no when it should have said yes). In our search for justice, we prefer false negatives (letting the guilty go free) to false positives (punishing the innocent). But the two are competitors (pushing down one tends to increase the other). And a test that’s reasonable before a trial (when the defendant has the presumption of innocence) may not be reasonable post-conviction (when the prisoner is presumed guilty, and must prove his innocence). Then there are issues of lab failure, DNA degradation (caused by weather, time, and even by extracting a sample), and, most importantly, contamination. And when you’re running a newer, more sensitive test, contamination that wouldn’t have mattered 10 years ago could now be a serious issue. Finally, let us consider the time frame. Osborne’s case is 16 years old. A ten year old case would have had the RFLP testing done, and we’d already have the DNA evidence that he is guilty. These cases are all going to be with old, and therefore less reliable, samples.

So, let’s assume that 1 major conviction in 1,000 is wrong. Let’s also assume that the tests will give a false positive 1 time in 100, and same for a false negative.

Let’s have 100,000 prisoners decide they want to get tested.

There will be 99,900 guilty people in that pool. 999 will be freed despite being guilty.

There will be 100 innocent people in that pool. 99 of them will be exonerated. That’s 9% of the total freed people.

You may think that’s a good trade. I disagree. But I don’t think any reasonable person can claim that the Constitution requires us to make that trade. Not post conviction.

If you can get the false negative rate to be the same as the false conviction rate, then you’ll end up with half the people being freed being guilty. Better. But how many innocent people will be harmed by those guilty people you’ve set free?


The Supreme Court made the right call, both for Osborne in particular, and the issue in general. People should read the ruling before shooting their mouths off about it, and not trust some of the hysterics who have been screaming the loudest, with no justification.


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