By CRG staff - interview with Nina Morrison, Innocence Project

William G. Osborne was convicted of a 1993 rape in Alaska. With new forensic technology, a DNA test could exonerate him, but the state of Alaska has refused to grant the test. Nina Morrison is lead attorney in the Innocence Project's attempt to gain access to a post-conviction DNA test for Osborne, and the case was recently heard by the U.S. Supreme Court. The court decided 5 to 4 against granting the tests, but left the door open for states to improve access to post-conviction DNA testing.

The Innocence Project has said that the Osborne decision will have limited impact. What does that mean?

Ever since the introduction of post-conviction DNA testing into criminal cases, the action has always been, and will continue to be, in state court. Most of the cases that we handle, actually, get resolved on consent - that is, although it can take time to do negotiations, in a little over half the cases we handle we are able to get prosecutors or other custodians of evidence to allow us to get a post-conviction DNA test. Most of those cases never go to court at all until after you get the results. With Osborne, we were dealing with getting a DNA test in the first place.

Where we do litigate for access to DNA testing, we have always and will continue to proceed in state court and under state law, because the states have by and large responded very quickly to DNA evidence's remarkable abilities to get to the truth in these criminal cases - and the overwhelming majority of states, in fact all but three as of this writing, have passed laws agreeing to provide post-conviction DNA testing as state law.

What the Osborne court essentially said is that they were not going to find Osborne's due process rights were violated until he had tried another procedure that appeared to still be available to him in state court. There have been some news reports saying "court rejects constitutional right to DNA testing," and that's really an overstatement of what they held. Even in the federal context, the decision leaves room for the federal court to examine whether a state court procedure has been adequate to vindicate a person's fundamental right to DNA testing.

And one thing the court did say for the first time, very explicitly, is that there's what lawyers call a 'liberty interest,' or a fundamental constitutional right to prove your innocence where the state has a procedure that lets you go to court to challenge your conviction. So that means that the constitutional rights are still very much in play.

So the Supreme Court is saying 'go back to Alaska and try another avenue?'

Right, Osborne himself has to go back to Alaska. So who knows, when we go to court in Alaska under this new procedure, they may well agree to provide the testing. The state said during the Supreme Court proceedings that they don't have a problem with post-conviction DNA testing generally; they just don't want us pursuing it in federal court.

Whether Osborne gets the tests is still very much an open question. It's still very frustrating, though - we all know the test could be 100% conclusive on his guilt or innocence, and it seems foolish to make Osborne go to state court and potentially make him fight a few more years to get the test when the court could just order it now. But the majority didn't see it that way.

And I should also probably say that the federal courts have always been a last resort for people seeking DNA testing in any event. There have only been a handful of people prior to Osborne who had gotten a testing order in federal court, and I think fewer than two dozen cases seeking testing in federal court. So it was always a small but important part of the litigation. Clearly the Osborne decision will make it harder for people to go to federal court claiming that their rights were violated by a state's refusal to give them access to DNA testing, but it by no means rules that out as an option.

If the new legal avenue in Alaska doesn't work out - if the state still refuses to allow the testing - might the case go back to the Supreme Court?

It's certainly possible. A couple of very experienced Supreme Court lawyers have contacted me since the decision to say that the court usually keeps a close eye on the cases it sends back, and if it turns out that the procedure in Alaska is not adequate to protect Osborne's rights, they may well want to review the case again. We're hoping it won't come to that and the state will just give him a DNA testing order once we get back to state court.

I happen to be calling you from Massachusetts, one of the states that doesn't have legislation allowing for post-conviction DNA tests. What do you think needs to happen in these?

The Osborne decision is a call to action on the part of state legislatures. The case reaffirms how important DNA testing can be to an accurate determination of guilt or innocence, it talks about DNA's unparalleled ability to get to the truth, to identify the guilty and exonerate the innocent, but it said the state should continue to be the primary place where people bring their claims for DNA testing. It puts the responsibility back on the states to ensure that their procedures for getting testing are constitutional.

That means not only that states like Massachusetts have been given a push by the Supreme Court to enact their own laws, if they don't already have one, but states that don't provide meaningful access to testing for some or all of the prisoners who should be able to utilize them also need to take a hard look at their laws and improve them.

For example, two states, Alabama and Kentucky, have post-conviction DNA testing laws, but they only apply to people who are on death row. So if someone is "only" serving a life sentence in prison, no matter how probative DNA testing would be of their innocence claim, they can't apply for DNA testing. And that, we think, is a very arbitrary restriction that the Supreme Court could look at quite skeptically if a case from those states ever made its way to them.

There are other states that exclude those who plead guilty to the crime, but we've seen a number of people exonerated through DNA testing even though they plead guilty to the crime at the trial. Clearly a guilty plea doesn't mean that you're actually guilty in all cases.

How is Innocence Project addressing those restrictions - through policy, through bringing cases, or both?

We're working on them on multiple fronts. We have a staff of attorneys who handle individual requests for DNA testing on a case-by-case basis, as well as an intake department that spends years carefully screening the cases before they even get to the attorneys. We also have a policy department that has been active in many states in getting these laws passed and improving the laws that are already on the books, and we've been working with colleagues in those states to try to get restrictions lifted for some time. Hopefully the Osborne decision will give us some momentum.

It may also be that individual prisoners who are trying to get DNA testing from those states will bring constitutional challenges to the adequacy of those laws, and the courts may look at those favorably. Time will tell what this means for the constitutional challenge if the state law isn't sufficiently protective of the rights that the courts recognize.

Obviously race is a critical issue in the Innocence Project's work - 70% of those exonerated are people of color, and 2/3 of cases have been cross-race sexual assaults. How do you see Innocence Project's role in dealing with the racial disparities in the criminal justice system?

Well, like any question involving race in American society, it doesn't lend itself to simple solutions. One of the things that we hope to do at the Innocence Project is, through our work representing individual clients, provide data that can help illuminate the scope of the problem. The cases you mentioned have helped to do that, and we're seeing a disproportionate impact, it appears, among defendants who were charged with sexually assaulting someone of a different race.

We're just beginning to examine in detail the possible factors, but among the plausible reasons is that cross-racial assaults are often (though by no means always) perpetrated by strangers. Stranger rapes tend to be taken more seriously by the criminal justice system than those between people who know one another. Some have suggested that when the victim is white and the perpetrator is of another color, these cases receive greater scrutiny and greater attention; and what we certainly have seen is that high-profile cases that arouse the passion and anger of the community tend to be the ones that create pressure on law enforcement to solve the case via a conviction. When law enforcement is under pressure to get a conviction, mistakes can and do happen in many cases.

Another thing that's in play is that so many of our exoneration cases involve mistaken eyewitness identification. There is a wealth of scientific data that shows people are more likely to misidentify someone of a different race as opposed to their own race, so whether or not there is any pressure on the law enforcement end, human error in these cross-racial cases may certainly play a part.

What role do you think DNA testing plays in addressing - or exacerbating - the disparate treatment of people based on race and class?

To some extent, our ability to know that is limited by the role of our specific cases - our cases are only a piece of the overall racial issues in the criminal justice system, and we are limited by the data we have. At the very least, the data we're seeing raises cause for concern about whether people of color, particularly African-Americans and Latinos, are disproportionately suffering the burden of wrongful conviction in this country. And if the problem of wrongful conviction itself weren't enough to raise a call for change, this disparity would certainly seem to add an additional layer of urgency, given that the justice system is committed to equal justice regardless of race and class.

How has race played a role in the Osborne case?

Well, it was a cross racial crime - the victim was white and the two perpetrators were African-American, and we have pointed out since the beginning that the possibility of a misidentification in this case is enhanced by a number of factors, one of which is the cross-racial nature of the crime. So in that sense it certainly has played a role.

Alaska is the one state in the country we have found that has never granted anyone a post-conviction DNA test by court order or by consent - so they seem to be withholding equally.

Why do you think the state of Alaska has pushed back so vigorously on this issue?

You know, it's really still a mystery, after a decade of fighting over this. None of us have a good answer as to why they're opposing testing. For years they said they were just opposed to us getting it in federal court, but they also opposed it in state court, and it remains to be seen whether they'll continue to oppose it there. What we do know is that there's absolutely no dispute that a simple DNA test could prove beyond any doubt whether William Osborne committed this crime. It's mystifying that the state wouldn't want to do this at the first opportunity, especially since we're offering to pay for it and it would cost them absolutely nothing.

What makes it even more egregious is that in Alaska there is no statute of limitations on rape barring the state from prosecuting the real perpetrator of this case if Mr. Osborne is innocent. That is to say, if we did a DNA test and we not only exonerated Osborne but also, through the CODIS database, identified the true perpetrator, they could still prosecute that individual. Why they wouldn't want to know that person's identity, and to get him off the streets by prosecuting him if he's still at large, is also just baffling.

And didn't the prosecutors openly admit that the testing could prove Mr. Osborne's innocence or guilt?

Well, it's a good thing you point that out - they didn't say it all along, they actually only said it when they were at the Supreme Court and their feet were held to the fire. For years they said the testing might not mean anything because the condom [at the crime scene, from which the DNA evidence was acquired] could have been from some incident other than the rape - even though that position is ludicrous, on the record, given the nature of the crime, where the evidence was found, and how quickly it was recovered.

They didn't want to accept that it was theoretically possible that the DNA could exonerate him, but by the time it got to the Supreme Court they admitted that the DNA could be conclusive. But it took over a decade to get to this point.

You mean to the point that there is an agreement that the DNA evidence would be conclusive?

Right. And one of the things that's very troubling is that the state courts had all along relied on the prosecution's representation that the DNA could not prove innocence. Since that's no longer true, it calls into question all of the state court proceedings to date. It's very interesting how they've changed their position, and it's really quite troubling as well, but we'll certainly go on from here with the understanding that that's no longer a disputed issue.

With that issue aside, it seems that the case should go differently in Alaska this time.

From your lips to the judge's ears ... I don't know. I've been working on this long enough not to make any confident predictions about what will happen when we go back to court.

In the past, have other people in Alaska requested DNA tests and been specifically denied?

Yes, several people had been denied. One person actually got the order for testing, but it turned out the evidence was gone when they got around to testing it. No one has ever received the DNA test in Alaska post-conviction, and we know of only one case in which the court agreed to order the testing. And the Supreme Court said "aha!" - there was this one case, so Osborne could try that route.

At what point did you realize the Osborne case would become a larger issue than just the innocence or guilt of Williams Osborne himself?

This case started out as one where he was represented by a public defender - who did a really amazing and thorough job trying to get DNA testing any way he could. As with so many cases of great national importance, it started with one man's struggle to get justice. That's the way all of our cases start. So it really wasn't until things started moving up the ladder of national courts that we started to realize that it could have national implications, though we were by no means sure that the Supreme Court would take the case. And when they did, obviously, we realized it was going to become quite important.

In terms of individual cases, it seems the Innocence Project will always have work to do; but in terms of policy, is there a finish line?

That's where the old adage about 'the perfect is enemy of the good' applies. We aren't under the illusion that we are going to eradicate wrongful convictions entirely in our lifetime, but what we do know is that there are a number of very basic and very important measures that the justice system can take that would dramatically reduce the rate of wrongful convictions in this country that have not been taken by most jurisdictions. And we have an enormous amount of work to do make that a reality.

Eyewitness misidentification and forensic reform are the two areas we're working on the most, because the solutions are especially clear. We also think the system is likely to be receptive to these solutions. It really presents a win-win for law enforcement because they can so dramatically increase the accuracy of criminal prosecutions.

In the short term, we're focusing a lot on reforming eyewitness ID procedures at the state and local level, and we're also focusing on implementation of the incredibly important goals set forth in the National Academy of Sciences' recent report.

The other thing, obviously, is that post-Osborne, we have a lot of work to do to ensure that DNA access at the state level is meaningful and comprehensive. Our policy department has their work cut out for them to bring this legislation into compliance, and we're hoping that we'll have a lot of partners at the state level who share our interest in making sure that post-conviction DNA testing is readily available.

What do you think has already been accomplished by the Osborne case - both for him individually and in terms of setting precedence?

I think the case has done a few things. Even though Osborne didn't prevail in his federal claim, the court did very clearly say that a convicted person has a liberty interest, or a protected constitutional right, to meaningful access to DNA testing where it could prove one's innocence. That is something that wasn't clear in the matter of federal law and precedent before the Osborne decision, and certainly will increase the scrutiny as to whether or not the state procedures are enough to get the job done.

On a sort of broader, non legalistic level, the outpouring of support we've had in the wake of Osborne has been really tremendous. We've gotten emails from people all over the country who are outraged by the decision. It's something that I think is much harder for laypeople to understand than lawyers, who are more familiar with this notion of federalism, the division of power between state and federal courts. To laypeople, it's just mystifying to say "well, of course the DNA test could prove his innocence, but he has to go back to state court to get it." They don't understand why the Supreme Court couldn't just order it. And, on a basic level, neither do I!

But I think this has helped raise awareness about just how much work is involved in getting access to DNA, even in such straightforward cases. I think some members of the public are still under the impression that DNA testing is very easy to get in 2009, that you just press a button and say "I'd like my DNA test" and they hand it over to you, and it's really not that simple. We have to spend years in court fighting for very simple DNA testing, even in cases where it would clearly be probative, and that's unfortunately not going to change much after Osborne. Hopefully, though, this case will create some momentum on our side and get criminal justice players at the state level to be more cooperative. 
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