The NY Times editors are so vexed by what they see as the latest blatant injustice from the Roberts Court that they can't be bothered to read the court's opinion or their own coverage of the case (Matt Yglesias keeps them company). Let's cut to the NY Times editors:
In an appalling 5-to-4 ruling on Thursday, the Supreme Court’s
conservative majority tossed aside compelling due process claims, the
demands of justice and a considered decision by a lower federal appeals court to deny the right of prisoners to obtain post-conviction DNA testing that might prove their innocence.
The inmate at the center of the case, William G. Osborne, is in
prison in Alaska after a 1994 rape conviction based in part on a DNA
test of semen from a condom recovered at the scene.
Clang! The inmate is in prison, all right, but for a conviction in a different crime following his release on parole in 2007 for this rape. From the Times news report:
There was other significant evidence of Mr. Osborne’s guilt, and he
confessed to the Alaska Board of Parole, which released him after 14
years. He later said he had lied to the parole board in the hope of
quicker release. Mr. Osborne has since been convicted of a home
invasion. [More at
CS Monitor and
Scripps.]
Back to the Times editors for more bleating:
The state used an old method, known as DQ-alpha testing, that could not
identify, with great specificity, the person to whom the DNA belonged.
The high court sided with Alaska in its refusal to grant Mr. Osborne
access to the physical evidence, the semen. His intent was to obtain a
more advanced DNA test that was not available at the time of his trial
and that prosecutors agreed could almost definitively prove his guilt
or innocence.
Well, his intent was to roll the bones, figuring he had nothing to lose except the expense of the test. Osborne had already passed on a more detailed test at the time of his trial, as the Times explains:
Rudimentary DNA testing on the condom in preparation for trial
excluded two other suspects and included Mr. Osborne among those who
might have committed the crime. The kind of testing used at the time,
Chief Justice Roberts wrote, “generally cannot narrow the perpetrator
down to less than 5 percent of the population.”
Mr. Osborne’s
trial lawyer decided not to pursue a second kind of DNA testing that
was more discriminating. The lawyer said she feared that the results
might further incriminate her client.
The defense strategy is presented in more detail in the opinion:
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 [
Wiki] during trial, and argued that she was constitutionally
ineffective for not doing so.
1 Osborne I, 110 P. 3d, at 990. Because
she believed Osborne was guilty, " 'insisting on a more advanced ...
DNA test would have served to prove that Osborne committed the alleged crimes.' "
Ibid. The Alaska Court of Appeals concluded that Billingslea's decision had been strategic and rejected Osborne's claim.
Id., at 991-992.
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.' "
It seems that sample size was not a problem, so the RFLP test available in 1993 would have been definitive.
As a matter of public policy, there is a legitimate question of how best to chivvy the states along as they legislate access to what amounts to new evidence made available by advances in technology. However, as the WaPo explains, this was an awkward case on which prisoner's rights advocates chose to hang their hats, since the prisoner is almost surely guilty:
Prosecutors had told the court that Osborne was not a good cause for
those worried about the wrongly convicted. He was identified as the
woman's attacker not just by her but by an accomplice. At trial, one
test of the semen found at the crime scene said it could have come from
Osborne but also from about 15 percent of the population of African
American men.
More of the case details are available in the opinion:
This lawsuit arose out of a violent crime committed 16 years ago,
which has resulted in a long string of litigation in the state and
federal courts. 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. 521
F. 3d 1118, 1122 (CA9 2008) (case below); Osborne v. State, 163 P. 3d 973, 975-976 (Alaska App. 2007) (Osborne II); App. 27, 42-44.
K. G. did not die; the bullet had only grazed her head. Once
the two men left, she found her way back to the road, and flagged down
a passing car to take her home. Ultimately, she received medical care
and spoke to the police. 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. Jackson v. State, No. A-5276 etc. (Alaska App., Feb. 7, 1996), App. to Pet. for Cert. 117a.
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. Id.,
at 116a, 118a-119a. The car also matched the description K. G. had
given to the police. Jackson admitted that he had been the driver
during the rape and assault, and told the police that William Osborne
had been his passenger. 521 F. 3d, at 1122-1123; 423 F. 3d 1050,
1051-1052 (CA9 2005); Osborne v. State, 110 P. 3d 986, 990 (Alaska App. 2005) (Osborne I).
Other evidence also implicated Osborne. K. G. picked out his photograph
(with some uncertainty) and at trial she identified Osborne as her
attacker. Other witnesses testified that shortly before the crime,
Osborne had called Jackson from an arcade, and then driven off with
him. An axe handle similar to the one at the scene of the crime was
found in Osborne's room on the military base where he lived.
Hence the defense attorney's desire to steer away from a more conclusive DNA test and aim for a "mistaken identity,
cross-racial identification case", which in this scenario would have amounted to, all black guys look alike to white folks.
Let's leave the last laugh for Matt Y:
Conservative Justices’ Strange Enthusiasm for the Punishment of the Innocent
Here’s a beaut of a decision from the increasingly brutal and inhumane conservative-dominated Supreme Court. Not content with gutting anti-discrimination legislation, a 5-4 majority has decided that if people are wrongfully convicted they should be punished anyway because, hey, tough on crime!
...The predominant thinking of Alaska in this case seems to be that the
punishment of the innocent works as a close substitute for the
punishment of the guilty, so that given the heinous nature of the crime
the state has a strong interest in convicting someone or other
of it irrespective of the facts. This is exactly the sort of madness
and injustice we rely on the judicial system to rescue us from. But not
the new Roberts Court!
I am confident that the 5 justices in the majority are comfortable that the guilty have been punished.
MORE: The SCOTUS Blog has analysis:
Amid competing essays on the courts’ role in declaring
constitutional meaning, a Supreme Court majority has handed off — as
essentially a question for the political branches of government — the
issue of when a convicted individual can get access to genetic evidence
to try to prove innocence of the crime.
...
Access to evidence for DNA testing, however, is not guaranteed by
anything in the Constitution, the Court majority concluded – at least
when the individual has had a fair trial, and is seeking the evidence
after the fact, to try to undo a conviction.
...
The majority opinion in District Attorney’s Office v. Osborne
(08-6) should not be misunderstood: it does not rule out entirely any
access, in a criminal case, to genetic evidence for DNA testing. What
it does do is narrow any legal foundation for such access, primarily by
leaving it up to 50 state legislatures and Congress to craft rules to
control access.
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