WASHINGTON - The Supreme Court's conservative and liberal justices appeared divided Monday about giving convicts a constitutional right to test DNA evidence, which for 232 people has meant exoneration years after they were found guilty.
The issue arose in the case of William Osborne, who was convicted in a brutal attack on a prostitute in Alaska 16 years ago. He won a federal appeals court ruling granting him access to a blue condom that was used during the attack. Testing its contents would firmly establish his innocence or guilt, says Osborne, who has admitted his guilt in a bid for parole.
On the one hand, the court's four liberal justices seemed to be in general agreement that prosecutors should open their evidence lockers when they contain genetic material that could reveal whether someone has been wrongly imprisoned. The numbers wouldn't be very large, Justice John Paul Stevens said.
On the other hand, the four conservatives were wary of deciding to allow DNA testing so broadly that "it appears that the prisoner is gaming the system," as Justice Samuel Alito said. Convicts who pass up the chance to have genetic testing done at trial or who do not declare under oath that they are innocent could fall within Alito's description.
Since all but a handful of states and the federal government already have laws that provide for tests, Chief Justice John Roberts wondered whether there is any reason for the court to step in.
In the middle, as he often is, was Justice Anthony Kennedy. Kennedy seemed willing to accept that any right to a DNA test would have to follow a claim of innocence, made under penalty of perjury. Yet he also was frustrated by the refusal of Assistant Alaska Attorney General Kenneth Rosenstein to say that Osborne could get what he wants if he swears to his innocence.
"You cannot confirm that you would acquiesce and recommend that he get the DNA sample under those conditions?" Kennedy said.
Where the arguments leave Osborne, awaiting sentencing for a robbery he committed after his parole, is unclear. The court appeared reluctant to embrace the ruling of the San Francisco-based 9th U.S. Circuit Court of Appeals in Osborne's favor, at least not without attaching some limits.
The Obama administration, picking up the argument first made by the Bush administration, urged the court to reject the appeals court ruling.
Deputy Solicitor General Neal Katyal said the decision by the 9th U.S. Circuit Court of Appeals was too broad and would erase the claim-of-innocence requirement in the federal DNA testing law.
Osborne has never made that claim and in fact admitted his guilt as part of his parole proceedings, Katyal said.
But Stevens said other people who were later exonerated had confessed to crimes they didn't commit.
"How do we know this isn't one of those cases?" Stevens asked.
Peter Neufeld, representing Osborne, faced skeptical questions from Justice Antonin Scalia, Alito and Roberts. Neufeld is a co-founder of The Innocence Project, which helps free wrongly convicted prisoners.
Neufeld said states provide access to the genetic evidence at no cost, since prisoners pay for the testing.
"All they're getting is a darn test," Neufeld told the court. "If it shows they committed the crime, they get nothing."
Neufeld also sought to downplay the significance of a favorable ruling for his client, saying it would apply only to a "very small group of people who were tried during the 1980s and early 1990s," before the advent of highly discriminating genetic tests and standardized procedures for the retention of evidence.
Alaska is one of only six states without a DNA testing law. The others: Alabama, Massachusetts, Oklahoma, Mississippi and South Dakota. In still other states, the laws limit testing to capital crimes or rule out after-the-fact tests for people who confess.
In many exoneration cases, eyewitnesses picked out the wrong man, often with the victim of one race incorrectly identifying someone of a different color.
The woman in Alaska was raped, beaten with an ax handle, shot in the head and left for dead in a snow bank near Anchorage International Airport. The condom that was found nearby was used in the assault, the woman said.
The woman, who is white, identified Osborne, who is black, as one of her attackers. Another man also convicted in the attack has repeatedly incriminated him. Osborne himself described the assault in detail when he admitted his guilt under oath to the parole board in 2004.
Osborne's lawyer passed up advanced DNA testing at the time of his trial, fearing it could conclusively link him to the crime. A less-refined test by the state showed that the semen did not belong to other suspects, but could be Osborne's, as well as about 15 percent of all African-American men.
A decision is expected in the spring.
The case is District Attorney's Office v. Osborne, 08-6.