Federal Judiciary

Remarkable Ninth Circuit Decision on Inmate?s Right to New DNA Testing

By Robert Loblaw

Osborne v. District Attorney?s Office for the Third Judicial District, 06-35875 (9^th Cir., April 2, 2008)

In a big § 1983 decision, a panel of the Ninth Circuit has concluded that a convicted rapist has a due process right to run new DNA tests on the forensic evidence used to convict him. Fourteen years ago, defendant William Osborne was convicted in an Alaska state court of brutally attacking a prostitute and leaving her for dead. In addition to a bevy of circumstantial evidence and the fact that he was identified by the victim, the evidence against Osborne included sperm and hair samples at the scene that were consistent with Osborne?s genetic profile, at least under the tests commonly used in the early 1990s.

But Osborne wants to challenge the biological evidence by using newer and more accurate methods of forensic testing. So he filed for post-conviction relief in state court. The state trial court denied relief so, while his ultimately unsuccessful state appeal was pending, Osborne filed a § 1983 action in federal court against various state defendants, including the police who investigated his crime and the district attorneys who prosecuted it. Osborne argued that he had a due process right to perform advanced testing on the biological evidence. Although the district court initially tossed out Osborne?s claims, it subsequently found in Osborne?s favor after a 2005 remand from the Ninth.

This time, the State appealed. In a complicated decision that addresses several threshold issues ? including exhaustion, the standard for obtaining habeas relief on actual innocence claims, and whether Osborne is improperly using a § 1983 action as a collateral challenge to his conviction ? the Ninth sides with Osborne. The panel agrees that due process:

prohibits the State from denying [Osborne] reasonable access to biological evidence for the purpose of further DNA testing, where that biological evidence was used to secure his conviction, the DNA testing is to be conducted using methods that were unavailable at the time of trial and are far more precise than the methods that were then available, such methods are capable of conclusively determining whether Osborne is the source of the genetic material, the testing can be conducted without cost or prejudice to the State, and the evidence is material to available forms of postconviction relief.

This aspect of the Ninth?s decision is noteworthy in and of itself, but here?s an added fact that makes the decision remarkable: while all of these proceedings were pending, Osborne confessed to his involvement in the attack as part of his unsuccessful effort to get parole. In fact, he confessed twice: making a detailed written confession in his 2004 parole application, and then orally accepting responsibility during his 2005 parole hearing. But the panel addresses these confessions almost as an afterthought, concluding that Osborne still has a right to have potentially exculpatory evidence weighed against the other evidence against him, including his post-conviction confessions.

Full post as published by Decision of the Day on April 02, 2008 (boomark / email).