Innocence Project, Representing Alaska Man in U.S. Supreme Court Case, Says Constitution Allows Post-Conviction DNA Tests


‘Our Constitution gives every citizen the right to prove that he’s innocent,’ says Innocence Project Co-Director Peter Neufeld, who will argue the case at the Supreme Court in March

(WASHINGTON, DC; January 27, 2009) – The federal Constitution allows prisoners access to DNA testing that could prove their innocence – particularly when a state lacks a law granting DNA testing and the state can show no reason to deny it – the Innocence Project argued in a brief filed at the U.S. Supreme Court.

The Innocence Project represents William Osborne, who was convicted of rape, attempted murder and related charges in 1993 in Alaska. For eight years, Osborne has sought advanced DNA testing that could prove his innocence. Alaska is one of just six states without a law granting post-conviction DNA testing. In 2008, the U.S. Court of Appeals for the Ninth Circuit ruled that it is unconstitutional to deny him access to DNA testing, and the state appealed that ruling to the U.S. Supreme Court, which will hear oral arguments in the case on March 2.

“The issue in this case is whether a state can deny a prisoner access to DNA testing that was not available at the time of trial and has the potential to prove his innocence. In the vast majority of cases, prisoners are granted DNA testing under state law or because prosecutors consent to testing without a court order. Alaska is the exception. It is the only state in the nation with no known case of a prisoner receiving DNA testing, either through court order or a prosecutor’s consent. This case involves a very important constitutional protection – one that is the only option for William Osborne,” said Peter Neufeld, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.

In asking the Supreme Court to take the case, the state conceded for the first time that favorable DNA testing “would conclusively establish [Osborne’s] innocence” – raising more questions about why the state will not simply consent to DNA testing. The testing would come at no cost to the state, since the Innocence Project will pay for it, as the organization does in most of its cases. In its Supreme Court brief, the state makes procedural claims against Osborne’s lawsuit seeking DNA testing but never gives a rationale for denying him access to testing itself.   In oral arguments at the U.S. Court of Appeals for the Ninth Circuit, a three-judge panel repeatedly questioned the state’s attorneys about why they are denying Osborne access to DNA testing. The attorneys said they were not “willing or able” to answer any of those questions “at this time.”


its brief on behalf of Osborne

, the Innocence Project outlines a long history of legal precedent giving prisoners access to evidence and protecting their ability to prove their innocence under the Due Process Clause of the U.S. Constitution. The brief also explains that limited DNA testing was available at the time of Osborne’s trial but that type of DNA testing was about as discriminating as blood-type testing – whereas newer, more sophisticated DNA testing can identify individuals uniquely. The case before the Supreme Court does not seek to overturn Osborne’s conviction or challenge any part of the process leading to his conviction – instead, it challenges the government’s arbitrary refusal to permit him access to the evidence in his case so that it can be subjected to testing that was not available at the time of his trial.

”DNA technology is new, but the principles in this case have a long and rich tradition. For decades, the Supreme Court has recognized that defendants need access to evidence and people’s right to liberty must be protected even after they are convicted. More recently, courts across the country have recognized the power of DNA testing to resolve claims of innocence,” Neufeld said. “Most prosecutors, judges and states recognize that while DNA testing in these cases may not always protect a conviction, it protects our system of justice by revealing the truth.”

The brief filed on behalf of Osborne Monday night is at:

. Below is background on Osborne’s case, as well as information on DNA exonerations relevant to the issues being raised in this case.

William Osborne’s case

In March 1993, Dexter Jackson and another man (both of whom were black) solicited sex from a white prostitute (identified as K.G. in court documents) in Anchorage. When K.G. got into Jackson’s car, the men drove her to a secluded location, threatened her at gunpoint and robbed her.  K.G. was then forced to perform a sex act on Jackson while the other man vaginally raped her, using a blue condom he had taken from her. K.G. attempted to flee, and the men beat her severely. One of the men (who K.G. said was the second perpetrator) shot her, and the bullet grazed her head. The men then buried her in the snow and left her for dead.

Within days, Jackson was arrested. He was carrying a knife that belonged to K.G., and K.G.’s blood was found in his car. Other physical evidence linked him to the crime, and he was arrested. He confessed and reportedly said Osborne was the second perpetrator; because Jackson and Osborne were tried together, Jackson’s statements about Osborne were not used against him. The victim identified Osborne as the second perpetrator – but her initial identification was tentative, there were substantial differences between her description of the second perpetrator and Osborne’s appearance, and she had extremely poor vision and was not wearing glasses or contacts on the night of the crime. Osborne maintained that he was with Jackson later on the night of the crime, but he had a documented alibi for the timeframe during which Jackson and another man were committing the crime. Jackson and Osborne were convicted; Osborne was sentenced to 26 years in prison. (He was released on parole in 2006, after making the difficult decision to admit guilt to a crime he says he didn’t commit, since in most cases an admission can be favorable for receiving parole. Since being released, Osborne has been arrested on unrelated charges.)

Rudimentary DQ-Alpha DNA testing on fluids from the blue condom showed that Osborne (along with 14.7% to 16% of all African Americans) was “possibly a source” of the fluids. At the time of Osborne’s trial, a state expert considered conducting the only other kind of DNA testing available at the time, RFLP testing; that kind of DNA testing cannot yield a result from small or degraded items of evidence, and the expert said the evidence was too degraded to expect a result. Osborne pleaded with his trial attorney to attempt RFLP testing at another laboratory, but his attorney refused. Osborne also wrote to an out-of-state DNA expert for help, but under state law the decision to pursue RFLP testing was left to his attorney.

In 2001, Osborne sought more advanced DNA testing in state court. That case proceeded unsuccessfully for several years, and in the meantime Osborne began seeking DNA testing in federal court. The Innocence Project took his case in 2003, working with local counsel, Randall Cavanaugh of Kalamarides & Lambert and Robert Bundy of Dorsey & Whitney LLP in Anchorage. At the U.S. Supreme Court, Williams & Connolly LLP is co-counsel with the Innocence Project, Bundy and Cavanaugh. Kannon Shanmugam, Anna-Rose Mathieson and Jaynie Lilley are handling the case for Williams & Connolly.

Background on DNA exonerations relevant to the Osborne case

Nationwide, 232 people have been exonerated through DNA testing after serving an average of 12 years in prison for crimes they did not commit. Exonerations have taken place in 33 states and the District of Columbia.

44 states and the District of Columbia have passed statutes granting access to post-conviction DNA testing. The first state to pass such a statute was New York in 1994. The most recent states to pass statutes were South Carolina and Wyoming in 2008. A federal statute granting post-conviction access to DNA testing in federal cases passed in 2004.


The six states without statutes granting post-conviction access to DNA testing are Alabama, Alaska, Massachusetts, Oklahoma, Mississippi and South Dakota.

Alaska is the only state in the nation where there have been no known cases of prisoners being granted DNA testing through a court order or the consent of a prosecutor.


In 82% of the exoneration cases for which records are available, prosecutors consented to DNA testing.


In 25% of the wrongful convictions overturned through DNA testing nationwide, innocent people confessed or admitted to crimes they did not commit. In 5% of all cases that resulted in DNA exonerations, innocent people actually pled guilty to crimes they didn’t commit.



The Innocence Project, which is affiliated with Benjamin N. Cardozo School of Law at Yeshiva University, is a national litigation and public policy organization dedicated to exonerating wrongfully convicted people through DNA testing and reforming the criminal justice system to prevent future injustice. The Innocence Project was founded in 1992 by Peter Neufeld and Barry Scheck. To date, 232 people nationwide have been exonerated through DNA testing and dozens of states have implemented critical reforms to prevent wrongful convictions.

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