ANCHORAGE - A New York group whose intervention helped free more than 130 wrongly imprisoned people across the country has filed its first case in Alaska.
The Innocence Project seeks DNA testing of evidence used to convict William Osborne of raping and beating a Spenard prostitute.
Osborne, now 29, is in the 10th year of a 26-year prison sentence. He has always denied involvement in the 1993 assault. At the time of his arrest he was a 19-year-old soldier with no record. He says semen found at the scene of the attack is not his and testing it with techniques not available 10 years ago will prove he is innocent.
State prosecutors and the Anchorage Police Department refuse to release the semen for testing, so lawyers from the Innocence Project are asking a federal judge to order them to do so.
The project, created in 1992, is staffed by students at Cardozo School of Law in New York City and run by Barry Scheck and Peter Neufeld. The two defense attorneys believed DNA results, generally used to convict suspects, could also be used to free wrongfully convicted men.
The Innocence Project limits its cases to situations where DNA results are the key to a conviction, said David Menschel, the project attorney handing the Osborne matter.
The project's success rate is about 50-50, Menschel said. About 50 percent of the samples they test prove not to belong to the defendant. In most cases, the wrongfully incarcerated person is freed, he said.
Alaska is formulating a policy for dealing with such requests, said Deputy Attorney General Susan Parkes. Until it is in place, decisions will be made case-by-case, she said.
In this case, Parkes said, she opposes retesting because there's enough other evidence to support Osborne's guilt even if the semen belongs to someone else.
Osborne and a co-defendant were convicted by an Anchorage jury of rape, kidnapping and assault. The victim, a streetwalker and drug addict, said she was looking for customers near Chilkoot Charlie's on March 22, 1993, when two men in a red Nissan picked her up and agreed to pay her $100 to have sex with both of them.
Instead of taking her to her usual transaction site, the men drove to Earthquake Park, she said. They refused to pay, raped her, beat her with a club, grazed her with a shot, buried her in the snow and left her for dead.
The woman said she carried a particular brand of blue condoms and gave one to one of her attackers, who used it.
Police later found a used blue condom and condom wrapper at the scene of the assault. The contents were tested for a DNA signature using the testing method available in Alaska at the time.
The test concluded that the DNA signature matched approximately 16 percent of the African-American male population, a group that included Osborne.
Osborne and a co-defendant, Dexter Jackson, were tried together but offered different defenses. Jackson admitted buying sex from the woman and said he hit her once. Everything else was consensual, his lawyer said.
Osborne, however, said he never met the woman, wasn't with Jackson when he picked her up, and had nothing to do with whatever happened. He told his lawyer, Sidney Billingslea, before the trial that the semen in the condom could not possibly be his and asked to have it sent Outside for more sophisticated testing. Billingslea, knowing that prosecutors would get the results too, decided as a matter of strategy not to get the better test done.
Osborne's current attorney, Randall Cavanaugh, is arguing in state court that Billingslea's decision to override her client's request is itself grounds for a new trial.
Prosecutors used the condom and DNA results during the trial and argued that it put Osborne at the scene. If it now proves not to be his, he is at least entitled to a new trial, Menschel said.
Not so, said Parkes. Both sides made strategic decisions about what evidence to present to the jury and how to characterize it. Speculating about how things might have been different if different strategies were chosen is just "Monday morning quarterbacking," she said.
"Although the prosecutors argued this is the condom (that was used during the attack), we don't know that," Parkes said. "That was the theory at the time."
Menschel said prosecutors can't "opportunistically change their entire theory of the case merely to suit their litigation interests."
They told jurors the condom was used by the second assailant. If the DNA doesn't match Osborne, then he's not the second assailant, Menschel said.
According to 1993 newspaper stories about the trial, the victim identified both Osborne and Jackson as her attackers, and Jackson told police Osborne was with him.
The Innocence Project estimates that 70 percent of those exonerated by DNA tests were originally convicted on mistaken eyewitness identifications.
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