One of the problems with these types of appeals is that requests for post-conviction DNA testing can be made not because the defendant was denied due process rights or had incompetent representation or learned of new evidence after the conviction but because a defense attorney made a reasonable strategic and informed decision, with the defendant's permission, not to seek additional or better DNA testing prior to the trial.
A convicted rapist seeking to prove his innocence with a new DNA test lost his appeal Thursday at the Supreme Court. The justices ruled 5-4 that inmates cannot use a federal civil rights law to press for advanced DNA testing that was unavailable at the time of the crime.
Forty-four states and the federal government have laws allowing post-conviction access to biological evidence for such testing, but that number does not include Alaska, where William Osborne was sentenced 15 years ago for a vicious attack on an Anchorage woman.
In this situation post-conviction advances in forensics aren't relevant since the defense attorney wasn't pushing for cutting edge forensic identification for reasons which actively served the defendants best interests.
If this defense strategy is followed by a favorable appeals court ruling or favorable supreme court ruling only because that strategy didn't result in an acquittal, what is being gained isn't justice but a strategic do-over after taking the best defensive shot the first time around.
If a defense attorney knew that a pre-trial DNA test would either ensure a conviction or make no difference to the outcome of that trial, then there is no injustice to be corrected by post-conviction DNA testing.
This is exactly the scenario which happened during the original trial.
Osborne's trial attorney in Anchorage made a strategic decision 16 years ago to forgo more sophisticated DNA testing of the evidence in the criminal assault case, believing it might end up working against her client. Several years later, the Alaska inmate sought access to the state's biological evidence to have a state-of-the-art DNA test done.This is far different from a case tried before DNA testing was viable or where the evidence with potential exonerating DNA was unknown.
This man's attorney viewed the DNA results from a condom (which didn't rule out Osborne while matching 1 out of 6 African Americans) as more favorable evidence for the defense than what could have been reported from more exact DNA processing. A man who is guilty is going to have good reason to agree with his attorney on this issue.
If other attorneys know that their client if convicted will likely get the DNA analysis which wasn't desired prior to trial upon appeal then it makes even more sense for defense attorneys to deliberately not seek the best practice DNA analysis prior to trial. Prosecutors are often criticized for not seeking to reveal the truth in court, but defense attorneys represent many clients where the truth is the enemy to a successful defense.
Because the goal of a defense attorney can be to hide or obscure the truth, inconclusive or no DNA evidence can be many defendant's best shot at an acquittal. There are many reasons why someone who is found guilty while having a great representatives will file an appeal. Factual innocence is only one of those many reasons.
One of the elements of the US Supreme Court ruling in DISTRICT ATTORNEY'S OFFICE FOR THE THIRD JUDICIAL DISTRICT et al. v. OSBORNE was that Osborne wasn't denied his due process rights. For me this is key in assessing the appropriateness of this ruling.
There is nothing about this case or this man which indicates he didn't get a fair trial or that he was wrongfully convicted. In fact within months after William Osborne was paroled for this crime, which he admitted to one time after he was convicted, he was arrested for a home invasion in Anchorage and was convicted of kidnapping and assault and is currently awaiting sentencing on those charges.
I doubt those who disagree with this ruling because they want any convict who requests DNA testing to get it would be in favor of changing our criminal justice system so that prosecutors could get a similar do-over after an acquittal. Yet DNA evidence and improved technologies which can prove a defendant's guilt have come in after acquittals, but under our criminal justice system that evidence becomes immaterial even if it proves someone's guilt.
If the only goals were truth and justice then our current understanding of DNA evidence should cause a widespread call for a constitutional change so that criminal acquittals in cases where the forensics are absent or unclear could be appealed on the same grounds which underlie this case.
I'm not advocating that change, only highlighting what would need to be done to our system to reach some advocates stated goal.
If the goal is to get at the truth about the accuracy of our criminal justice system then those who say they support this goal should work to find the funding to pay to test or retest all old DNA evidence using current best-case practices whether or not that case ended with a conviction, an acquittal or dropped charges or if no suspect has ever been identified.
If what is wanted is a total review of the accuracy of our system then that's what should be done, not a one-sided review which only looks for one type of error or one area of uncertainty. Incomplete data can lead to skewing the criminal justice system away from impartiality and fairness.