District Attorney's Office v. Osborne
Post-conviction access to genetic evidence
William G. Osborne was convicted in the Alaskan State Court in 1994 of kidnapping and raping a prostitute and sentenced to 26 years in prison. The prosecution relied on DNA evidence to convict him. Now, Osborne is seeking access to DNA evidence uncovered at the time of his trial to prove his innocence.
Osborne was convicted on the basis of testimony of the victim as well as then used "DQ Alpha" DNA tests. The more discriminating "RFLP" method was waived by the defense counsel at the time of trial. Over the years, testing methods have improved significantly and methods like STR and mtDNA that were not available at the time of Osborne's trial can now match identity of a perpetrator down to a virtual certainty. Osborne filed an application for post-conviction relief before the Superior Court on, inter alia, the ground that he had a due process right, under the state or federal constitution, to have evidence retested using newer DNA testing methods. Although the Superior Court denied the motion, in a subsequent appeal in a different application, the Ninth Circuit ordered prosecutors in Alaska to turn over DNA evidence that had been used to convict Osborne.
In November 2008, the Supreme Court agreed to hear the case to decide whether people convicted of crimes have a constitutional right to test DNA evidence that could prove their innocence.
The US Department of Justice maintains a database of DNA profiles of known criminals in the Combined DNA Index System (CODIS). Genetic data poses significant privacy risks because it can serve as an identifier conveying sensitive personal information about the individual and his or her family. EPIC has long advocated the imposition of limits to the collection and use of genetic material and warned of the dangers in contravening the purposes for which CODIS was created. However, EPIC believes that genetic evidence, once collected, should be allowed to exonerate an accused. Such access to evidence for the purpose of further testing to prove post-conviction exonerations is vital to ensure the innocent is not incarcerated on the basis of unreliable tests. The Ninth Circuit observed that "[i]f the new testing shows that Mr. Osborne was indeed guilty, prosecutors should be pleased..." and "if the testing points to his innocence, prosecutors should still be pleased, because the state's paramount interest are in "seeking justice, not obtaining convictions at all costs" and more discriminating tests not accessible to Osborne pre-trial would identify or exclude Osborne as the source of DNA to a "virtual certainty". Innocence Project, representing Osborne, assists prisoners who can be cleared through DNA testing.
In October 2008, a person was released from prison in Colorado because of DNA evidence is now suing the police and prosecutors. Tim Masters had spent ten years behind bars. There has been a total of 223 post-conviction exonerations in the United States through DNA testing. The 2004 Justice For All Act (H.R.5107) grants access to DNA testing for federal inmates who claim to be innocent and allows for funding to any state that grants DNA testing access. However, some states have placed restrictions against prisoners whose lawyers failed to request access to DNA evidence or who pled guilty. Innocence Project has drawn up comprehensive recommendations for post-conviction DNA access statutes. For more information, visit the Innocence Project.
- Supreme Court Docket
- Cert. Petition of the District Attorney's Office
- Osborne's Brief-in-Opposition
- Reply of the District Attorney's Office
Court of Appeals for the Ninth Circuit
- Ninth Circuit Opinion
- EPIC's Amicus Brief (pdf) in United States v. Kincade
- EPIC's Amicus Brief (pdf) in Maryland v. Raines
- EPIC's Amicus Brief (pdf) in Kohler v. Englade
- EPIC's Amicus Brief (pdf) in Johnson v. Quander
- EPIC's Genetic Privacy Page
- EPIC's Medical Privacy Page
- EPIC's Kohler v. Englade Page (case about DNA dragnets)
- EPIC's United States v. Kincade Page (case about national DNA database)
- EPIC's Johnson v. Quander Page (case about compelled collection)
- Innocence Project site
- Georgetown University Health Privacy Project site includes updated information on state laws related to health privacy
- U.S. Supreme Court to Decide Whether Prisoners Have a Right to Post-Conviction DNA Tests, AlterNet, January 28, 2009
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Communications Law and Policy
Jerry Kang and Alan Butler