GWEN IFILL: The use of DNA testing to prove innocence or guilt has become a widely accepted legal practice. But the state of Alaska has asked the Supreme Court to decide whether the Constitution guarantees a convict’s right to have such a test.
The court heard the arguments today, and Marcia Coyle of the National Law Journal was there. She joins us now.
MARCIA COYLE, National Law Journal: Thank you, Gwen.
GWEN IFILL: Perhaps I’ve been watching too many episode dramas on television, but it seemed to me that it was a slam-dunk that DNA testing was everybody’s right.
MARCIA COYLE: Well, it seems on the surface it would be a very logical thing, very fair thing to say that there is a right, but there are competing legal doctrines in tension here.
You have the state’s interest in finality of convictions. This is a state that doesn’t have a DNA-testing statute. The state of Alaska argued today before the Supreme Court that it has the traditional habeas corpus procedure that this particular presenter could have used, but did not use, had never made a formal declaration that he was actually innocent, and so there was not to be a federal constitutional right to DNA testing, if this prisoner would not avail himself of what the state had to offer.
A 'murky case'
GWEN IFILL: Let's talk about the facts of this case. William Osborne is the prisoner, and he was convicted of rape.
MARCIA COYLE: That's right, rape and assault. He and another man allegedly raped, beat, and even shot in the head a prostitute, left her for dead, buried in the snow, outside of the Anchorage airport in Alaska, but she was able to -- she wasn't killed. She was able to get help.
He was convicted by a jury. There was DNA testing done of a condom that the prostitute said was used during the rape. It wasn't the sophisticated, very powerful DNA tests that we have today, and it indicated -- the results were that it was consistent with his own DNA, William Osbourne's DNA.
There was other evidence, the prostitute eyewitness identification of him, but he claims -- his lawyer said that he has claimed throughout this ordeal that he is innocent.
GWEN IFILL: Except he confessed at a parole hearing.
MARCIA COYLE: That's right.
GWEN IFILL: This is a murky case.
MARCIA COYLE: It is. He's probably not a poster boy for DNA testing or constitutional right for DNA testing. He confessed twice at parole hearings.
And as his lawyer today pointed out to justices who raised that very point, that under Alaska law, in order to get parole, you have to take responsibility for your crime. And his lawyer said he'd like to think, if he had been standing in Osborne's shoes, that he'd be principled enough to say, "No, I'm innocent," but if it's the only way out of prison, he confessed.
Justices question state procedure
GWEN IFILL: So was the argument today that the state was making in its defense basically about state's rights? And how did the justices react?
MARCIA COYLE: The state's argument is basically, no, we don't have a specific DNA statute, but we have state habeas corpus. And this prisoner should have used that process. So the justice's questions really focused on, well, what exactly happens in the state procedure?
Justice Stevens pointed out that, one, in the procedure, the prisoner would have to make a claim that he was actually innocent and have to put forth certain evidence to support that. But the Catch-22 is, he doesn't have that evidence unless he has access to DNA testing of the evidence from his trial. So, really, you know, what can he do here?
The justices, you know, also tried to see if the state could reach some kind of a middle ground here. Justice Breyer, for example, said, well, what if we had a constitutional right that basically only applied to outlier states?
As you know, I believe only six states now do not have DNA testing statutes. And I think what he was suggesting was, let's say there is a federal constitutional right to DNA testing, but that right is satisfied if the state has particular procedures that allow you to get your DNA tested, adequate, fair, non-arbitrary procedures.
But the state of Alaska's lawyer continued to say that we have a procedure that this inmate should follow, and he never made a declaration that he was actually innocent.
Many DNA-based exonerations
GWEN IFILL: So Alaska is not alone. There are six states all together that don't, 44 states that do. Are there other states which are poised, who are watching Alaska closely, and would perhaps support Alaska in this case, even if they have this sort of law on the books?
MARCIA COYLE: There is a lot of activity going on in the states right now on DNA testing, also on the issue of preserving DNA evidence. The state of Alaska was supported today in the court by the Obama administration. The deputy solicitor general told the justices that they should not constitutionalize a right to DNA testing because there is so much activity going on in the states and also because this case in particular was a poor one to base a constitutional right on.
GWEN IFILL: Is there any way to quantify exactly how much of a difference DNA testing has made in post-conviction appeals like this one?
MARCIA COYLE: Actually, there have been, I believe, 236 exonerations based on DNA testing, and that did come out during the oral arguments. In fact, Mr. Osborne's attorney, in response to some skeptical questions by Justice Scalia and others, said that there has actually been exoneration in cases where there was overwhelming evidence of guilt.
Using federal law as model
GWEN IFILL: And so that's what they're saying, this guy has a right to at least try?
MARCIA COYLE: That's right. And the justices' questions to Mr. Osborne's lawyer basically tried to probe, how broad a constitutional right should we give? Should there be limits here?
The chief justice, for example, said, should we require the prisoner to swear under threat of perjury penalty that he is innocent before he can get DNA testing, just as the federal law requires? And Mr. Osborne's attorney said yes. He said the main thing here is that it's the overwhelming consensus of all the states that what Alaska does is irrational.
GWEN IFILL: Marcia Coyle, National Law Journal, thank you very much.
MARCIA COYLE: My pleasure, Gwen.