Retesting of DNA at issue for convicted Alaskan felon

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Oral arguments were heard by the U.S. Supreme Court recently in the case of a man who was convicted in 1993 of the rape and assault of a prostitute.

William Osborne, whose lawyers decided at his original trial not to seek more stringent DNA testing, fearing that it would work against their client, is now seeking retesting of his DNA in the hopes that it will lead to his exoneration.

The federal government is being asked to declare the constitutional right of convicts to request that their DNA evidence be retested post-conviction, in order to overturn that conviction. Opponents say that a federal ruling, however, would not make much difference in the matter, since all but six states already guarantee the right to retesting. Alaska is one of the states that does not have such a constitutional right in its statutes.

Complicating the matter, however is the fact that Osborne refuses to claim innocence, as well as the fact that he has previously confessed – not just once, but twice – to the crime. A number of the Supreme Court justices questioned the logic of granting a constitutional right to retesting when the convicted man does not attest to his own innocence in the case.

The recent oral arguments centered around the fact that Alaskan law maintains Osborne’s right to seek retesting of his DNA only if he does claim innocence, which he has not yet declared.

Moreover, as Chief Justice John Roberts pointed out, the right to retest DNA evidence might be the beginning of a slippery slope. “I’m trying to figure out what the limit of the constitutional right you’re asserting is,” said Roberts, adding that this could open the possibility of retesting other evidence, such as fingerprints. He also expressed concern that this would require states to maintain DNA evidence in storage against future requests to retest it.

Justice Antonin Scalia, who was the most vocal in his opposition of the proposal, said that to guarantee this right would allow the convicted felon to “game the system.”

Neil Katyal, deputy solicitor general, was arguing for the first time before the Supreme Court. He called this case, with it unusual elements, “a particularly poor candidate for recognizing a new constitutional entitlement.”

 

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