Student Post - Will the Victim Have a Role in the Osborne Case?

On Monday, March 3, the Supreme Court heard oral arguments in District Attorney's Office for the Third Judicial District, et al. v. Osborne.  The Court is considering two questions on certiorari: 1) whether Osborne may use 1983 as a discovery device to obtain post-conviction access to the state's biological evidence when he has no pending substantive claim for which that evidence would be material; and 2) whether Osborne has a due process right to obtain post-conviction access to the state's biological evidence when the claim he intends to assert - a freestanding claim of innocence - is not legally cognizable.

These facts are from Osborne v. State, 2005 Alas. App. LEXIS 17 (Alask. Ct. App. 2005). On March 22, 1993, respondent Osborne was one of two men who sexually assaulted K.G. at gunpoint.  The two men then ordered K.G. to get out of the car and lay face down in the snow.  When she refused, Osborne struck her with the gun and choked her.  Out of fear that the men would kill her, K.G. defecated on the front passenger seat of the car.  Then, Osborne smeared her own excrement on K.G.'s face, hair and clothing.  Though K.G. was able to run a few feet from the car, the two men continued the assault.  They repeatedly struck her with an axe handle on her head, ribs, and knees.  K.G. decided to play dead, but Osborne fired his gun at her head (fortunately, only grazing her) and the two men partially buried her in the snow.  They believed either that she was dead or left her for dead. 

The details of that day in 1993 are horrifying to recount, but some argue that this case is as much about K.G.'s right to privacy as it is Osborne's post-conviction rights to access DNA evidence.  In their amicus brief on behalf of K.G. and the National Crime Victim Law Institute, and in support of petitioner, Paul Cassell and Margaret Gavin focus on K.G.'s right to remain free from further intrusion into her privacy.  Because Osborne has never declared under threat of perjury that he is actually innocent, Cassell and Garvin argue that K.G.'s right to privacy outweighs Osborne's right to go on an evidentiary fishing expedition. Notably, K.G.'s clothing could contain at least three substances: semen, blood and feces.  The amici list significant personal information that might be revealed if Osborne gets access to the testing:  K.G.'s previous sexual partners; private medical facts (including whether she was pregnant);  HIV status; and DNA (which can reveal whether the subject carries mutations for any disorders or carries genetic variations that cause schizophrenia and alcoholism, or worse).  Additionally, Cassell and Garvin cite research that a significant barrier to reporting sexual assaults is the victim's concern about her confidentiality.  Finally, the amici are careful to frame their main point as follows:

    "...[B]y seeking these tests through a 1983 petition rather than a federal heabeas petition, Osborne     has effectively made an end run around vital protections contained in the Crime Victims' Rights Act,     18 U.S.C. 3771."

The Court should note how much of K.G.'s personal information will be revealed if Osborne, who has already been convicted, is allowed access to the DNA testing he seeks.

During last Monday's oral arguments, no one mentioned victims' rights or privacy interests.  Peter Neufeld, attorney for the respondent, argued that allowing Osborne (who forwent this particular DNA test at his trial for strategic reasons) to perform a simple test on the blood and semen evidence gave him no advantages, and even punished him if the results proved his guilt.  Justice Scalia quickly interrupted, "But [defendants] will have acquired the advantage of having a chance of the jury's acquitting them at the trial.  Because by not asking for the DNA test, there was a chance the jury might let them off."  Chief Justice Roberts also raised the concern that convicted criminals will have access to endless appeals if they can continually re-test evidence as technology advances. He favored the requirement that they proclaim their actual innocence under penalty of perjury before having access to the evidence.

In sum, this case concerns more complex legal questions than a victim's right to privacy, but the Court's answers must acknowledge that victims of sexual violence play a greater role in the criminal law than simply being DNA evidence. In reaching its decision, the Court must carefully consider the victims' rights to privacy and finality, the constitutional rights of criminal defendants, and society's interest in convicting the guilty and freeing the innocent.

Comments

[Daniel]

Good post. It brings up an angle to the case that I hadn't considered in depth. I guess I always just assumed that the DNA extraction would be narrowly tailored to meet the needs of the defendant's claim. I would be rather shocked if the court did anything else, but the post raises a fair point.

On the larger issue, I probably side with Scalia's point. I'm bothered by the fact that defendants can gamble at trial and when they lose, get another bite at that apple for free. That's as offensive a practice as the dual sovereign illogic that governs double jeopardy claims.

[George]

Of the student posts so far, this one is most compelling. I didn't know these facts before and they were not an issue at oral argument. However, the prosecution also had the option of getting the DNA tested and declined to do so because the test would have destroyed the evidence. The procedures are more refined and exact now, if I understand Neufeld's argument, but I agree a better test case would be from someone who declared innocence under penalty of perjury. The court suggested it was inclined to require that, but then the problem is the government argued it still may refuse the testing, so if the court rules a declaration is not required, that may be why. As to DNA and privacy, that door opened a long time ago.

[lawdoc]

It is all well and good to pretend this is about privacy and victim's rights, but the state would have no problem digging in the evidence box if they wanted to use it say to prove another crime. In the rarified air of the Supreme Court it is easy to miss the bias that might have caused this conviction. A match of DNA to %15 of the black male population is simply not good enough when the conviction is disputed and a much more conclusive test can easily be obtained.

Two bites at the apple is not such a bad thing when you are discussing 26 years of a man's life, and the possibility that the real perpetrator is not punished.

From Black Talk Radio Network (http://blacktalkradio.ning.com/profiles/blogs/alaska-not-interested-in-real)

Alaska Not Interested in Real Justice

Suing in federal court is the only option for Innocence Project client William Osborne to get the DNA testing he says will prove his innocence. Last year, a federal appeals court ruled that Osborne had the right to testing, but the state of Alaska appealed to the U.S. Supreme Court, where Innocence Project Co-Director Peter Neufeld will argue the case on March 2.

In 1993, an Alaska woman was raped, robbed and beaten by two men. One of the men was arrested days after the crime with items belonging to the woman in his possession; he confessed to the crime and allegedly implicated William Osborne as the other perpetrator. The victim then viewed a lineup including Osborne, saying he looked “most familiar” and “most likely” to be the perpetrator. Both men were convicted and Osborne was sentenced to 26 years in prison. Before trial, the state conducted an early form of DNA testing on semen on the condom used in the rape. The results showed that the semen could possibly have come from Osborne — and about 15% of African-American men.

It is this same evidence that Osborne is seeking to test today, using more advanced DNA testing. Although DNA testing could conclusively prove his innocence or guilt and could lead to the identification of the actual perpetrator, prosecutors have repeatedly refused to grant testing. In oral arguments at the federal appeals court, judges asked attorneys for the state several times why they refused to allow DNA testing. The attorneys said they were not “willing or able” to answer such questions “at this time.” In filings with the U.S. Supreme Court, the state concedes that DNA testing could "conclusively establish [Osborne’s] innocence," but they say the U.S. Constitution does not give people a right to testing. The Innocence Project points to a long history of legal precedent giving prisoners access to evidence and protecting people’s ability to prove their innocence under the Due Process Clause of the Fourteenth Amendment of the Constitution

[Phil Cave]

CSI effect ladies and gentlemen! In the many sex offenses cases I do with DNA I have yet to be told whether the victim is pregnant, HIV positive, the name and address of other sexual partners, whether the victim has a genetic defect, etc. You get told several basic things.
a. There was DNA present.
b. There was semen present (a routine non-DNA test done at the same time)(the labs I deal with don't "age" the semen).
c. There was possible saliva present (a routine non-DNA test done at the same time).
d. My client's DNA was a contributor.
e. There was a 3rd of other contributors to the DNA.
f. There was a mix of the victim and clients DNA.

1. If the case were being tried today these tests would be done, usually by the government's own examiners? Under court order the results could be released to the defense's own expert. There's no a privacy concern there that overcomes the right to investigate, prepare for trial, and litigate.
2. In the many sexual cases I've tried I've never had issues of pregnancy, disease, or similar "privacy" issues come up. The examiner looks to compare two biological samples. To my knowledge no examiner has the time to go trolling. The one privacy issue is other sexual partners. But in defending a sexual assault case that's always an issue regardless of there being DNA or not. It is true that under Fed. R. Evid. 412, one of the exceptions is to show SODDI in regard to an injury. So if you have a third party male contributor, you need to know that. But that's a natural consequence of litigating many of these type of cases.
3. If there is a concern about extraneous "information," put a court ordered non-diclosure Order on the examiners and the defense counsel. Having received many of these DNA examination reports over the years I don't know where Cassell and others come up with the concern. It's true that there are times when I want the whole file reviewed by my own expert. My client doesn't get to see the stuff, he's like me, no idea what it means. I don't recollect anything in the file that leads to the kind of information Cassell is concerned about.
4. If in fact the sample is not of the appellant, then whose is it?
5. The sample doesn't give significant information on other partners. Sure, if she had sex within the time window before (or after) the alleged assaults there may be a third or other contributor. We see that in reports from time to time.
6. Yes, issues of confidentiality impact a willingness to report. That's why we have Fed. R. Evid. 412, 403. Privacy can be a great cloak to protect false allegations so there has to be some balancing.