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opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| WILLIAM G. OSBORNE, | ) Court of Appeals No. A-8399 |
| ) Trial Court Nos. 3AN-97-00636 CI | |
| Appellant, | ) 3AN-93-02339 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) No. 2109 - July 6, 2007 |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the
Superior Court, Third Judicial District,
Anchorage, Sharon L. Gleason, Judge.
Appearances: Randall S. Cavanaugh,
Kalamarides & Lambert, Anchorage, for the
Appellant. Nancy R. Simel, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and David W. M rquez,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, joined by Coats, Chief Judge,
concurring.
More than a decade ago, William G. Osborne and his
friend, Dexter Jackson, were convicted of kidnapping, first-
degree assault, and first-degree sexual assault stemming from an
attack on an Anchorage prostitute. This Court affirmed both mens
convictions on direct appeal.1
The current appellate litigation arises from Osbornes
post-conviction request for further DNA testing of certain
physical evidence in his case.
In our previous decision in this matter, Osborne v.
State,2 we declined to decide whether defendants in Alaska have a
due process right to demand post-conviction DNA testing of
physical evidence. However, we declared that, at a minimum, a
defendant would have to establish three things before claiming
entitlement to post-conviction DNA testing: (1) that the
defendants conviction rested primarily on eyewitness
identification; (2) that there was a demonstrable doubt
concerning this identification; and (3) that scientific testing
of physical evidence would likely be conclusive on the issue of
whether the defendant was the perpetrator of the crime.3
Having established this three-part test, we remanded
Osbornes case to the superior court so that the parties could
litigate whether, under the facts of Osbornes case, this test was
satisfied.4 After considering this matter, Superior Court Judge
Sharon L. Gleason concluded that Osborne had failed to establish
any of the three factors that we set forth in Osborne.
Accordingly, she entered an order denying Osbornes further
request for DNA testing.
Osborne now appeals that decision. For the reasons
explained here, we affirm Judge Gleasons ruling.
The underlying facts of Osbornes criminal
case
In order to explain why we agree with Judge Gleasons
ruling, we must recount the evidence presented at Osbornes trial
in the underlying criminal case. The following account is taken
from our decision denying Osbornes direct appeal, with some
additional details taken from Judge Gleasons written findings.
On the night of March 22, 1993, Osborne and Jackson
invited K.G. into Jacksons car, promising her that they would pay
$100 for oral sex. The two men took K.G. to a secluded spot at
the western end of Northern Lights Boulevard. During the ride
along Northern Lights Boulevard, Osborne and Jackson asked K.G.
if she was armed. When she told them that she had a Swiss army
knife, the men asked if they could look at the knife. They then
took the knife from her and placed it on the cars dashboard.
Jackson stopped the car at the end of Northern Lights
Boulevard, and the men then asked K.G. to perform fellatio on
each of them. When K.G. told Osborne and Jackson that she would
not perform without first being paid, Osborne pointed a gun at
her and told her, I think you will.
Osborne and Jackson took what little money K.G. had,
made K.G. strip, and then had sex with her against her will.
Osborne then ordered K.G. to get out of the car and lie face-down
in the snow. When K.G. refused to leave the car and began
pleading for her life, Jackson hit her in the head with the gun.
Osborne then began to choke her. In fear for her life,
K.G. defecated on the front passenger seat of Jacksons car.
Osborne scooped up some of the excrement and rubbed it in K.G.s
face, hair, and clothing. K.G. fled from the car, but the two
men took a piece of wood, probably an axe handle, from the back
of the car and began to strike K.G. on her head and ribs. When
K.G. tried to run away, Osborne battered her knees repeatedly,
yelling Go down, bitch; go down.
Osborne and Jackson hit and kicked K.G. until she fell
down. Jackson continued to hit K.G. in her pubic area with a
stick even after she had fallen. At one point, Osborne allowed
K.G. to stand up, but he then hit her in the head with the axe
handle.
K.G. decided to pretend that she was dead; she curled
up in the snow and stopped moving. She heard a gun discharge,
and she felt a bullet graze her head. (K.G. believed, based on
glimpses of her assailants feet and of Osbornes sweatsuit, that
it was Osborne who shot her.) After firing this shot, Osborne
and Jackson buried K.G. in the snow, apparently believing that
she was either dead or dying.
Even after K.G. heard Jacksons car drive away, she
continued to lie under the snow for a time, to make sure that her
attackers had really left. Then she got up and started walking
toward town. After walking for a short while, K.G. was able to
flag down a passing automobile. K.G. told the driver and the
passenger what had happened to her; she described the men who had
attacked her, and the car that they were driving. K.G. asked to
be taken home, because she wished to avoid the police. The
driver of the car complied with her request.
At about the same time that K.G. was making her way
home, witnesses saw Osborne and Jackson together. Some of these
witnesses observed that there was blood on Osbornes clothing.
The next day, a neighbor of one of the occupants of the
car that had taken K.G. home reported to the police what K.G.
had said about this incident. When the police contacted K.G.,
she was initially uncooperative, but she ultimately described
what had happened to her, and she turned over the clothes that
she had been wearing. These clothes were soiled with feces.
K.G. also underwent a physical examination, and most of her
injuries were photographed.
Five days later, in the early morning of March 28,
1993, the military police on Fort Richardson stopped Jacksons
car. The military police initially stopped Jackson because he
had been flashing his headlights at a pickup driving in front of
him. However, the police observed that Jacksons vehicle
resembled composite drawings that had been circulated by the
Anchorage Police Department, based on K.G.s description of her
attackers car. When Jackson opened his glove compartment to
retrieve his vehicle registration, one of the military police
officers saw a gun case. This discovery led to a search of
Jackson and his vehicle.
The gun case contained Jacksons .380 caliber semi-
automatic pistol. And, during their search of Jacksons person,
the military police found K.G.s Swiss army knife. (This knife
was uniquely marked and dented, and K.G. was able to identify
it.)
The military police seized Jacksons car and turned it
over to the Anchorage police, along with the items of evidence
found during the searches of the car and Jacksons person. During
their subsequent search of the vehicle, the Anchorage police
found a bottle of perfume that K.G. had been carrying on the
night of the assault. The police also detected blood in the car.
When this blood was tested for DNA at the DQ alpha locus, the
testing showed that the DNA in the blood sample matched K.G.s DNA
at that same site (i.e., the DQ alpha locus). This DNA type
occurs in less than 5% of white females. In addition,
when the police tested the sweaters that K.G. had been wearing
that night, they found fibers matching the carpeting in Jacksons
vehicle, as well as a pubic hair that was later found to have the
same characteristics as Osbornes pubic hair.
K.G. later identified both Osborne and Jackson in
separate photographic lineups. She also identified Jacksons car.
When the police conducted a search of the scene of the
assault on March 23rd (following their initial interview with
K.G.), they discovered an area of disturbed and bloody snow, as
well as two pairs of K.G.s gray stretch pants, which were also
bloody. The officers observed tire tracks at the scene tracks
which were later found to match the tires on Jacksons vehicle.
In addition, the police found an expended round of .380
ammunition; forensic testing later showed that this round had
been fired from Jacksons gun.
The police also discovered a used blue condom near the
scene. A pubic hair taken from this blue condom had the same
characteristics as Osbornes pubic hair. In addition, sperm found
in the condom matched Osbornes DNA type at the DQ alpha locus a
DNA type that is shared by about one-sixth (between 14.7% and
16%) of the African-American population.
Osbornes request for additional testing of
the blue condom as part of his petition for
post-conviction relief
After this Court affirmed Osbornes convictions on
direct appeal, Osborne filed a petition for post-conviction
relief. In this petition, Osborne asserted that he had received
ineffective assistance of counsel from his trial attorney, Sidney
Billingslea. Osbornes primary allegation was that Billingslea
acted incompetently when she decided not to seek further DNA
testing of the blue condom.
As just explained, forensic testing of the sperm found
in this condom revealed that the DNA strand at the DQ alpha locus
matched Osbornes DNA type at the same locus. This finding tended
to link Osborne to the crime, but it was not conclusive because
approximately one-sixth of the African-American population shares
this same DNA type.
The DNA testing of this sperm was conducted using a
method known as polymerase chain reaction (PCR).5 At the time of
Osbornes trial, more discriminating methods of DNA testing were
available. These methods might have excluded Osborne as the
source of the sperm or, conversely, they might have identified
him more conclusively as the source of the sperm. Billingslea
chose not to pursue further testing.
Responding to Osbornes allegation that this decision
demonstrated incompetence, Billingslea explained that she had
actively explored the possibility of having the physical evidence
tested using a more discerning method. Billingslea spoke with
the States DNA expert (an employee of the State Crime Lab) and
asked why the State had used the less sophisticated testing
method. She reviewed various materials regarding DNA testing.
And she consulted an attorney who was litigating a case involving
the scientific basis of DNA testing.6
In the end, Billingslea decided that it was better not
to seek further testing. Osbornes defense was alibi the
contention that the second man who accompanied Dexter Jackson
that night was someone other than Osborne. Billingslea perceived
that a more discerning DNA test was a double-edged sword: the
test results could either bolster Osbornes defense or undermine
it. And she relied on the fact that the States DNA evidence left
substantial room for doubt because one-sixth of the African-
American population shared this same DNA type. Given these
circumstances, Billingslea concluded that Osborne was in a
strategically better position without more specific DNA testing.7
Judge Gleason concluded that Billingsleas decision was
within the range of competence expected of criminal defense
attorneys, and we affirmed that ruling on appeal.8
However, Osborne raised an alternative argument in his
petition for post-conviction relief. Osborne asserted that even
if Billingslea acted competently when she chose not to seek
further DNA testing of the genetic material found on the blue
condom, Osborne nevertheless had the right, as a matter of due
process, to pursue more discriminating DNA testing of the condom,
to see if further testing might exclude him as the source of the
sperm.9
In our prior decision, we remanded Osbornes case to the
superior court for further consideration of this issue directing
the court to employ the three-part test that we described in the
third paragraph of this opinion. That is, we directed the
superior court to assess: (1) whether Osbornes conviction rested
primarily on eyewitness identification; and, if so, (2) whether
there was a demonstrable doubt concerning this identification;
and, if so, (3) whether further DNA testing of the genetic
material on the condom would likely be conclusive on the issue of
whether Osborne was the perpetrator of the crime.10
The proceedings and findings on remand
The remand proceedings primarily involved a re-
examination of the evidence presented at Osbornes trial.
However, Judge Gleason also considered the fact that Osborne had
applied for discretionary parole in 2004 and that, in his
application to the Parole Board, Osborne admitted, both in
writing and orally, his participation in the attack on K.G.11
At the conclusion of the remand proceedings, Judge
Gleason issued written findings. She concluded that Osborne
failed to satisfy any prong of the three-part test set forth in
Osborne.
Judge Gleason found that K.G.s identification of
Osborne was supported both by the physical evidence in the case
and by the other evidence placing Osborne in Dexter Jacksons
company on the night of the kidnaping and rape. Thus, Judge
Gleason concluded, Osbornes identification as one of K.G.s
assailants did not rest primarily on K.G.s testimony and K.G.s
identification of Osborne was not subject to serious doubt. Judge Gleason
then considered the third part of the test whether further DNA testing would likely
be conclusive on the question of whether Osborne was one of the two assailants.
Judge Gleason noted that if she ordered retesting,
there were three possible outcomes. The laboratory might report
that it was no longer possible to test the genetic material on
the condom (or, at least, no longer possible to run the more
discriminating tests that Osborne proposed). Alternatively,
further testing might conclusively establish that the genetic
material found in the condom came from Osborne. And finally,
further testing might show that there was little or no chance
that the genetic material came from Osborne.
With respect to this third possibility, Judge Gleason
concluded that even if the testing excluded Osborne as the source
of the genetic material on the condom, this would not be
conclusive evidence of his innocence. The judge noted that the
condom was not found until over twenty-four hours after the
assault. That is, it might have been coincidentally left in the
vicinity by other people, before the police arrived. Moreover,
Judge Gleason noted that the State had presented extensive other
evidence which linked Mr. Osborne to these crimes.
Finally, Judge Gleason noted that Osborne had confessed
to these crimes when he applied for discretionary parole in 2004.
The judge pointed out that Osborne had signed a written statement
acknowledging his participation in the kidnapping and sexual
assault on K.G., and that Osbornes signature appeared underneath
an explicit warning that he was required to state the exact and
complete truth in his parole application.
Given all of this, Judge Gleason concluded that even if
further DNA testing showed that Osborne could not have been the
source of the genetic material, this would not conclusively
establish Osbornes innocence.
Judge Gleason properly considered Osbornes
confessions to the Parole Board
Before we reach the merits of Judge Gleasons findings
on the three prongs of the test, we must first address Osbornes
argument that Judge Gleason should not have considered his
confession to the Parole Board that he participated in the
kidnapping and rape of K.G.
Osborne contends that, as a matter of law, Judge
Gleason could only consider the evidence that was presented at
his trial, and not anything that happened or came to light
afterwards. We disagree.
The essence of Osbornes claim in this litigation is
that he is factually innocent of the crimes for which he has been
convicted and that he has a due process right to a renewed
examination of the physical evidence if there is a reasonable
chance that this will demonstrate his factual innocence.
Certainly, Osborne would argue (and we would agree) that if new
evidence had been uncovered after his trial which tended to show
that Osborne was factually innocent of these crimes, it would be
proper for Judge Gleason and this Court to consider this new
evidence when deciding whether to order further DNA testing.
For instance, if Dexter Jackson had later stated (under
credible circumstances) that someone other than Osborne was his
accomplice in the kidnapping and rape of K.G., that would be
important evidence for a court to consider when deciding whether
to grant Osbornes request for further DNA testing. Similarly, if
some third person had confessed (under credible circumstances)
that he, and not Osborne, was Jacksons accomplice in these
crimes, this also would seem to be important evidence which
Osborne would be entitled to present in support of his request
for further DNA testing.
Conversely, it seems clear to us that the State should
be able to avail itself of new evidence which undermines Osbornes
claim of factual innocence.
Here, during Osbornes 2004 application for
discretionary parole, he confessed twice (once in his written
application, and again during his appearance in front of the
Parole Board) that he was guilty of the crimes against K.G.
These confessions are obviously relevant to Osbornes claim that
the physical evidence should be retested because the testing will
show that he is factually innocent. Judge Gleason could properly
consider Osbornes confessions when she evaluated whether to grant
Osbornes request for further DNA testing.
Osborne argues that his confessions to the Parole Board
should not be believed that he lied about his participation in
these crimes so that the Parole Board would look more favorably
on his request for parole. But this assertion goes to the weight
of the evidence, and not to the propriety of Judge Gleasons
consideration of it.
(Osborne also argues that the State improperly
introduced statements made by Osbornes co-defendant, Dexter
Jackson, after the trial statements in which Jackson apparently
identified Osborne as his accomplice. Osborne argues that he
never had the opportunity to cross-examine Jackson about these
statements. But we have examined the record on remand, and we
have not found anything to suggest that Jacksons challenged
statements were in fact introduced during the remand proceedings.
Judge Gleason does not mention any such statements in her written
findings.)
Why we uphold Judge Gleasons findings (1)
that Osbornes conviction did not rest
primarily on eyewitness identification, and
(2) that there was no demonstrable doubt
concerning the accuracy of K.G.s
identification of Osborne
Under the first two prongs of the three-part test we
set forth in Osborne, Judge Gleason was required to assess
whether Osbornes conviction rested primarily on eyewitness
identification evidence, and, if so, whether there was
demonstrable doubt as to the accuracy of that identification.
Judge Gleason answered these questions in the negative.
Judge Gleason acknowledged that some of the States
evidence against Osborne consisted of K.G.s eyewitness testimony.
The jury heard that K.G. identified Osborne as one of the
perpetrators of the crimes by picking him out of a lineup before
trial, and K.G. also testified at trial that she was certain that
Osborne was the passenger in Jacksons car. However, Judge
Gleason noted that the State also presented substantial
circumstantial evidence (including many pieces of physical
evidence) tending to prove that Jackson was one of K.G.s
assailants, as well as strong evidence that Osborne was in
Jacksons company at the time of these crimes.
Judge Gleason acknowledged that, compared to the States
case against Jackson, there was less evidence to place Mr.
Osborne at the scene of the crime. However, the judge listed
several items of evidence that linked Osborne to the crime scene:
(1) Osborne had telephoned Jackson twice from the Space Station
arcade prior to the crime; (2) Osborne was observed entering
Jacksons vehicle shortly before the crime occurred; (3) tickets
from the Space Station were found in Jacksons car; (4) witnesses
saw Osborne and Jackson together shortly after the crime
occurred, and some of these witnesses observed blood on Osbornes
clothing; and (5) K.G. told the driver who picked her up
immediately after the assault that her attackers were two black
guys with military ... haircuts a description consistent with
Osbornes physical characteristics.
Judge Gleason also acknowledged that the jury heard
some evidence of problems with K.G.s identification of Osborne.
In her written findings, Judge Gleason noted that
[t]he evidence established that K.G.s
uncorrected vision was somewhere between
20/300 and 20/400, and that she was not
wearing glasses on the evening of the crime.
K.G. had [described] the passenger as [not
having] any facial hair, while Mr. Osborne
had a mustache. And K.G. had [described] the
passenger as weighing 180 to 190 pounds and
[as being] between 25 to 30 years old, while
Mr. Osborne was 20 years old and weighed 155
pounds. Mr. Osborne also argues that
eyewitness identifications are generally
suspect, especially when a person of one race
is asked to identify a person from another
race.
Based on these facts, Judge Gleason
concluded that if K.G.s identification of
Osborne were to be considered in isolation,
without consideration of all of the other
evidence that the state presented ... ,
there would be demonstrable doubt concerning
Mr. Osbornes identification as the
perpetrator. However, when Judge Gleason
weighed K.G.s identification of Osborne in
conjunction with all of the other evidence
submitted by the State at [Osbornes] trial,
the judge concluded that there was no
demonstrable doubt concerning Osbornes
identification as one of K.G.s assailants.
Judge Gleason noted that, during
the States summation to the jury, the
prosecutor specifically invited the jury to
factor out K.G.s identification of Osborne
and to evaluate the other evidence
independently. The prosecutor asked the jury
to engage in an exercise of caution [by
assuming that] K.G. never came in here, ...
never testified. The prosecutor maintained
that, even without K.G.s identification
testimony, the evidence in this case
warrant[ed] a conviction of Osborne.
We have independently reviewed the
record of Osbornes trial, and we agree with
Judge Gleasons conclusions: (1) that
Osbornes conviction did not rest primarily on
eyewitness identification evidence; and (2)
that, taking the evidence as a whole, there
was no demonstrable doubt concerning the
reliability of K.G.s identification of
Osborne.
Why we uphold Judge
Gleasons finding that
further DNA testing would
not be conclusive on the
issue of Osbornes guilt
or innocence
Under the third prong of the three-
part test we set forth in Osborne, Judge
Gleason was required to assess whether
further DNA testing of the physical evidence
in this case would likely be conclusive on
the issue of Osbornes guilt or innocence.
Judge Gleason concluded that further DNA
testing would not yield a conclusive answer.
As we explained above, Judge
Gleason perceived that further DNA testing
could yield three possible outcomes. First,
the laboratory might find that it was no
longer possible to test the genetic material
on the condom (or, at least, no longer
possible to run the more discriminating tests
that Osborne proposed). Second, further DNA
testing might conclusively establish that the
genetic material found in the condom came
from Osborne. And third, further testing
might show that there was little or no chance
that the genetic material came from Osborne.
The question confronting Judge
Gleason was this: assuming that this third
alternative came to pass i.e., assuming that
a more discriminating DNA test showed that
the genetic material did not come from
Osborne would this test result be conclusive
evidence of Osbornes innocence? Based on her
examination of all the evidence in Osbornes
case, Judge Gleason concluded that the answer
was no.
First, Judge Gleason noted that the
condom was not firmly linked to the assault
on K.G. The condom was not found until over
twenty-four hours after the assault.
Accordingly, it might have been
coincidentally left in the vicinity by anther
person before the police arrived.
Second, Judge Gleason noted that
the State presented extensive other evidence
linking Osborne to the kidnapping and rape
primarily, the physical evidence that firmly
tied Jackson to these crimes, the physical
evidence that placed Osborne in Jacksons
vehicle (the Space Station tickets), and the
testimony of several witnesses who saw
Osborne in Jacksons company both before and
after the assault.
Finally, Judge Gleason noted that
Osborne had confessed to these crimes when he
applied for discretionary parole in 2004.
The judge pointed out that Osborne had
submitted a written statement to the Parole
Board in which he acknowledged his
participation in the kidnapping and sexual
assault on K.G. In this written statement,
Osborne described these crimes in some
detail. Moreover, Osbornes signature on this
statement appears underneath an explicit
warning that he was required to state the
exact and complete truth in his parole
application, and that any lies in his
statement would subject him to prosecution
for unsworn falsification under AS 11.56.210.
Given all of this, Judge Gleason
concluded that even if further DNA testing
showed that Osborne could not have been the
source of the genetic material, this would
not conclusively establish Osbornes
innocence. We agree.
We note that the Washington Court
of Appeals in Riofta v. State,12 recently
confronted a similar case and reached the
same conclusion that the defendant was not
entitled to post-conviction DNA testing of
physical evidence.
The defendant in Riofta was
convicted of first-degree assault with a
firearm. The victim of the assault described
the shooter as wearing a white hat during the
assault.13 The police later identified the
owner of this white hat, but they discovered
that the hat had been stolen, along with the
owners car, prior to the assault. Riofta had
apparently emerged from this stolen car
immediately before assaulting the victim.14
After Riofta was convicted, he
commenced litigation under the authority of a
Washington statute which provides for post-
conviction DNA testing in criminal cases.
Riofta asked the court to order DNA testing
of the hat arguing that if his DNA did not
show up on the hat, this would establish his
innocence.15 The Washington appeals court,
however, concluded that DNA testing [might]
show only who wore the hat after the car was
stolen. DNA testing [would] not resolve who
wore the hat during the shooting.16
In addition to bringing suit under
the Washington statute, Riofta also argued
that he had a due process right to have the
hat tested for DNA.17 In making this
argument, Riofta explicitly relied on this
Courts decision in Osborne.
The Washington court noted that the
courts of that state have not adopted a
version of the three-part Osborne test.18
But the court also observed that the
Washington Supreme Court in In re Personal
Restraint of Gentry19 had favorably referred
to a similar three-part test.20
Nevertheless, the Riofta court
concluded that, under the facts of the case,
Riofta could not satisfy the critical
requirement of demonstrating that DNA testing
of the white hat would conclusively, or even
likely, prove his innocence.21 The court
explained:
The absence of Rioftas DNA on the white hat
[would] not necessarily indicate that Riofta
was not the shooter[,] because Riofta may not
have transferred his DNA to the hat. For
example, evidence indicates that the shooter
could have worn the hat for only a relatively
short period of time because the car in which
the hat was located was stolen within twelve
hours of the shooting. Moreover, the
presence of someone elses DNA (other than the
hats owner ...) [would] not exonerate
Riofta[,] because Riofta and other persons
could have worn the hat without all of them
transferring DNA [to the hat.] ... [E]ven if
DNA on the white hat matched [someone else],
it [would] not conclusively establish Rioftas
innocence[,] given the number of persons [the
victim] saw in the car who may have worn the
hat.[22]
The facts of Riofta are similar to
the facts presented in Osbornes case, and we
reach a similar conclusion. As Judge Gleason
found, Osborne simply has not shown that
further DNA testing would establish his
innocence, even if the results of this
testing excluded him as the source of the
genetic material.
Conclusion
For the reasons explained here, we
agree with Judge Gleason that Osborne failed
to satisfy any portion of the three-part test
that we set out in our previous decision. We
accordingly conclude that Osborne has failed
to show that he is entitled to further DNA
testing of the physical evidence in this
case.
This was the only issue left
unresolved from Osbornes application for post-
conviction relief. Accordingly, the judgment
of the superior court (denying Osbornes
application) is AFFIRMED.
MANNHEIMER, Judge, joined by Coats, Chief
Judge, concurring.
This case raises the question of
whether an Alaska court has the authority, in
the absence of a pertinent statute, to order
post-conviction DNA testing of physical
evidence and if so, under what circumstances
a court should exercise that authority. The
resolution of this question requires us to
balance two competing principles of the
criminal justice system. Our task is hard
because both principles are crucially
important to the fair administration of
criminal justice.
The first principle is that, after
we are assured that a defendant has received
a trial conducted in accordance with the
procedural requirements of our constitution,
our statutes, and our court rules, society
has a justifiable interest in prohibiting the
defendant from seeking to re-open the
litigation.
All of these procedural protections
at trial, on appeal, and in post-conviction
relief litigation are designed to ensure, to
the extent humanly possible, that only the
truly guilty are punished. To be sure, it is
seldom possible to attain absolute certainty
when we try to reconstruct and analyze human
affairs. But after a defendant has received
the benefit of all required procedural
protections, society can justifiably insist
that the defendants conviction not be
subjected to further attack.
As this Court explained in Grinols
v. State,
Society has a substantial interest in
making sure that criminal litigation
eventually reaches an end. All persons
involved in the litigation defendants,
victims, families and friends, investigative
agencies, as well as the public at large
have a right to expect that criminal cases
will be finally resolved at some point. If
prisoners are allowed to assert claims long
after their trials, society runs the risk
that re-trials may be ordered years after the
event, when witnesses may no longer be
available or their memories of the pertinent
occurrences have been lost or diminished. In
addition, piecemeal litigation of successive
and often fruitless post-conviction claims
poses a significant cost to the courts and
the other components of the criminal justice
system.
Grinols, 10 P.3d 600, 605-06 (Alaska App.
2000). Moreover, as our supreme court
recognized in Merrill v. State,
finality may be a crucial element [in the]
effectiveness [of the criminal law]. A
procedural system which permits an endless
repetition of inquiry into facts and law in a
vain search for ultimate certitude implies a
lack of confidence about the possibilities of
[administering] justice that cannot but war
with the effectiveness of the [laws]
underlying substantive commands.
Furthermore, ... an endless reopening of
convictions, with its continuing underlying
implication that perhaps the defendant can
escape from corrective sanctions after all,
[is potentially inconsistent] with the aim of
rehabilitating offenders.
Merrill, 457 P.2d 231, 236 (Alaska 1969).
In the present case, William
Osborne was tried and convicted of sexual
assault and his conviction was affirmed by
this Court on appeal.1 He then litigated and
lost a claim of ineffective assistance of
counsel in the superior court, and this Court
affirmed the superior courts resolution of
the ineffective assistance claim.2 At this
point, society has a weighty interest in
insulating the jurys verdict from further
attack.
Nevertheless, our criminal justice
system is also founded on a second principle:
that innocent people should not be punished.
In theory, this second principle should not
normally conflict with the first principle
described above. But police investigations
and jury trials are conducted by human
beings.
There are times when evidence of
the defendants guilt is fabricated, or
evidence of the defendants innocence is
willfully suppressed. We trust that these
occasions are few. But even the most
scrupulous and honest police officers,
witnesses, and victims sometimes work from
limited knowledge, or are hampered by
preconceived notions, or are simply mistaken.
And jurors must make their decision based on
the evidence presented in court. In short,
our justice system is run by human beings who
ultimately are fallible.
Despite our societys best efforts,
and despite total compliance with the
procedural protections specified by law,
innocent people are in fact convicted. This
Court noted several instances of this in
footnote 52 of our Grinols opinion (10 P.3d
at 616). And earlier this spring, the
Anchorage Daily News carried an account of
yet another man who was freed after serving
years in prison for a rape he did not commit.
The victim initially identified the man as
her attacker. But after being confronted
with genetic evidence and other
circumstantial evidence indicating that the
wrong man had been identified, the victim
acknowledged that she was no longer certain
of her identification.3 Because of
this risk that we have punished the innocent,
even when a defendant has been found guilty
after a fair trial, the law must make some
provision for re-examining a criminal
conviction if it appears that the verdict is
mistaken. Alaska law currently contains two
such provisions.
Under Alaska Criminal Rule 33(c), a
defendant may file a motion for a new trial
based on newly discovered evidence within 180
days of the final judgement. To obtain
relief under Criminal Rule 33, the defendant
must make a threshold showing that the
evidence is truly newly discovered, and that
diligent effort would not have revealed this
evidence any sooner.4 Assuming these two
requirements are met, the defendant must then
convince the court that the evidence is not
merely cumulative or impeaching, and that the
evidence is so significant that it would
probably lead to a different verdict if the
defendants case were re-tried.
Even if a defendant misses the 180-
day time limit specified in Criminal Rule
33(c), the defendant can seek post-conviction
relief under AS 12.72.010(a)(4) on the basis
that new evidence requires vacation of the
[defendants] conviction ... in the interest
of justice. Normally, a petition for post-
conviction relief must be filed within two
years of the final judgement (or within one
year after that judgement is affirmed on
appeal).5 However, AS 12.72.020(b)(2)(D)
declares that, [n]otwithstanding [this time
limitation], a court may hear a claim [for
post-conviction relief] based on newly
discovered evidence if the applicant
establishes due diligence in presenting the
claim and [the new evidence] establishes by
clear and convincing evidence that the
applicant is innocent.
The problem facing Osborne in the
present case is that the DNA testing he
proposes would not yield new evidence for
purposes of either Criminal Rule 33 or
AS 12.72.010(a). Under both of these
provisions, a defendant must show that the
evidence was not available sooner, despite
diligent efforts to uncover it. But as we
explained in our earlier opinion, Osborne v.
State, 110 P.3d at 989-990, a DNA analysis of
the physical evidence was conducted by the
State crime laboratory in advance of Osbornes
trial, and the results of this testing were
available to Osborne and his attorney. It is
true that Osborne now proposes a different,
more discriminating DNA test but this more
discriminating DNA was also available at the
time of Osbornes trial. Osbornes attorney
actively debated whether to pursue this more
discriminating test, but she ultimately
decided not to because the States DNA
testing was not extremely probative (roughly
fifteen to sixteen percent of the relevant
population had matching DNA), and because the
results of a more discriminating test might
have been much more incriminating to Osborne.
Id. at 990.
(We concluded that, under these
circumstances, Osbornes attorney acted
competently when she chose not to pursue the
more discriminating test. Id. at 992.)
Given these facts, it would seem
that equity does not favor Osborne. Osbornes
attorney could have asked for the more
discriminating DNA test, but she understood
the risk of performing this test, and she
consciously chose to go forward without this
evidence. Now, years later, Osborne asserts
that the more discriminating DNA test must be
run, and that his guilt must be re-evaluated.
As our supreme court explained in
Owens v. State, 613 P.2d 259, 261 (Alaska
1980), a defendant should not be allowed to
take a gamblers risk and complain only if the
cards [fall] the wrong way. See Riofta v.
State, 142 P.3d 193 (Wash. App. 2006), where
the Washington Court of Appeals discussed a
similar case:
[T]here is nothing new about the
[physical evidence] or any information that
[DNA testing] may [yield]. DNA testing of
comparable accuracy was available at trial.
Because [the defendant] chose not to test the
[physical evidence] at trial does not mean
that any information discoverable through
post-conviction testing is now new.
. . .
[A] strained consequence results if we
were to [adopt] the hyper-literal
interpretation [of new evidence that the
defendant] urges[.] [This interpretation
would] allow[] a defendant to take a wait and
see position on DNA testing by trying to gain
[an] acquittal without the DNA information
but, following conviction, moving to test the
DNA.
. . .
Accordingly, we hold that ... [i]f a
person requests [post-trial] DNA testing of
evidence [and] the same or comparable testing
[was available at trial, any] information
that the [post-trial] testing might reveal
... is not new ... .
Riofta v. State, 142 P.3d at 200.
It therefore appears that, under
the applicable Alaska statutes and court
rules, Osborne would not be entitled to
relief even if renewed DNA testing
conclusively established his innocence.
And yet, if we are indeed committed
to the principle that we should not punish
people who are demonstrably innocent, it
would seem that our criminal justice system
should have a fail-safe mechanism for
reviewing criminal convictions even in
situations like Osbornes that is, even when
a defendant has knowingly chosen to go to
trial without seeking to uncover the evidence
that the defendant now asserts will
demonstrate their innocence.
If Osborne could show that he were
in fact innocent, it would be unconscionable
to punish him, even if that punishment would
ostensibly comport with all of our laws
procedural requirements. As this Court
suggested in Grinols, 10 P.3d at 617, the due
process clause of the Alaska Constitution
might require us to intervene in cases where
a defendant presents clear genetic evidence
of their innocence, even if the rules
governing motions for new trial and petitions
for post-conviction relief would bar the
defendant from obtaining any relief.
Here, Osborne has not offered any
genetic evidence. Rather, he asks this Court
to order re-testing of the condom found at
the scene of the crime so that he can obtain
new genetic evidence that might conceivably
favor his claim of innocence.
In our prior opinion in Osbornes
case, we assumed that this Court would be
obliged to order the proposed DNA testing if
Osborne could show that a favorable test
result would conclusively establish his
innocence. Osborne, 110 P.3d at 995. We
then remanded Osbornes case to the superior
court, directing the superior court to decide
whether, under the facts of Osbornes case, he
could meet this requirement for renewed DNA
testing. Id.
As explained in the lead opinion,
Judge Gleason concluded that even if renewed
DNA testing yielded the result most favorable
to Osborne that is, even if the renewed
testing showed that Osborne could not be the
source of the genetic material found on the
condom this test result would not
conclusively establish Osbornes innocence.
Given the evidence in Osbornes case
(both the evidence presented at Osbornes
trial and the additional fact that Osborne
has since confessed his guilt), Judge Gleason
correctly concluded that, no matter what
results the proposed DNA testing might yield,
this renewed testing could not conclusively
establish Osbornes innocence. Thus, even if
the due process clause would require
additional or renewed DNA testing in some
instances, re-testing is not required in
Osbornes case.
For these reasons, I agree with my
colleagues that the decision of the superior
court should be affirmed.
_______________________________
1 Jackson v. State, Alaska App. Memorandum Opinion and
Judgment No. 3330 (Feb. 7, 1996), 1996 WL 33686444 (Osborne was
the co-appellant in this case.).
2 110 P.3d 986 (Alaska App. 2005).
3 Id. at 995.
4 Id.
5 Osborne, 110 P.3d at 989-90.
6 Id. at 990.
7 Id. (brackets omitted).
8 Id. at 990-92.
9 Id. at 992.
10 Id. at 995-96.
11 In Section 1 of Osbornes written application for parole
(labeled State Your Version of the Offense), Osborne wrote:
While I was out with friends I made a call to my codefendant
[i.e., Dexter Jackson] to come pick me up from the Space Station.
After he did[,] we went driving around. When we saw [K.G.] and
that she was soliciting, we decided to have sex with her and then
not pay her. She got in the car with us, and we all went out to
Earthquake Park. Once there[,] I pulled out a gun and ordered
[K.G.] to take off her clothes. After she did, me and my
codefendant took turns having sex with her. After we were
done[,] I ordered [K.G.] to get out of the car. She refused to
do so[,] and kept refusing. I attempted to physically remove her
from the car, and eventually got her out. My codefendant became
enraged when he discovered that [K.G.] had defecated in his car,
and [he] began to assault her with a stick. I also assaulted
[K.G.] by kicking and punching her. After a few seconds[,] we
both stopped, partially kicked snow on [K.G.], and then got in my
codefendant[]s car and drove off[,] leaving her at the park.
Osborne signed this statement on April 8, 2004. His
signature appears underneath a printed acknowledgement that it is
a class A misdemeanor under AS 11.56.210 to submit a false
written or recorded statement regarding this parole application.
12142 P.3d 193 (Wash. App. 2006).
13Id. at 196.
14Id.
15Id. at 198.
16Id. at 201.
17Id.
18Id. at 203.
19972 P.2d 1250 (Wash. 1999).
20Riofta, 142 P.3d at 203-04 (quoting Gentry, 972 P.2d at
1258); see also Osborne, 110 P.3d at 995 n.27 (citing
Gentry).
21Riofta, 142 P.3d at 204.
22Id.
1 Jackson and Osborne v. State, Alaska App. Memorandum
Opinion No. 3330 (February 7, 1996), 1996 WL 3368644.
2 Osborne v. State, 110 P.3d 986 (Alaska App. 2005).
3 Judge clears man in prison for 1982 rape, Anchorage Daily
News, April 10, 2007, page A-3.
4 See Dorman v. State, 622 P.2d 448, 455-56 (Alaska 1981),
quoting Salinas v. State, 373 P.2d 512, 514 (Alaska
1962).
5 AS 12.72.020(a)(3)(A).
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