Court to decide on convict's right to test DNA

WASHINGTON -- Supreme Court justices engaged in contentious arguments Monday over whether convicts should have a constitutional right to biological evidence for DNA testing that could prove their innocence.

It marked the first time the court heard a major dispute arising from the DNA testing revolution that has led to the exoneration of hundreds of individuals. Yet the rape case from Alaska is complicated by an earlier admission of guilt by the defendant and questions of whether he would now assert his innocence.

As a result, the morning's arguments took enough turns to make it difficult to predict whether a majority would require Alaska officials to turn over evidence from the 1993 crime, or more important, declare for the first time that prisoners have a constitutional right to biological evidence.

The justices appeared divided along the usual ideological lines, with Justice Anthony Kennedy, often the swing vote, not tipping his hand.

In recent years, 44 states and the federal government have passed laws that allow convicts access to physical evidence for DNA testing in certain circumstances, such as capital cases. (Alaska has no such law relating to DNA testing.) At issue today was whether a defendant should have a general constitutional right to biological evidence, as the U.S. Court of Appeals for the 9th Circuit ruled in this case.

William Osborne was charged with the kidnapping and sexual assault of a woman who was brutally raped, beaten and left in the snow for dead. Osborne's trial lawyer decided to forgo independent DNA testing of the state's biological evidence, because, she said later, she thought it would confirm he did the crime and undercut his defense of mistaken identity.

Alaska Assistant Attorney General Kenneth Rosenstein told the justices Osborne has no right to try to obtain the evidence, some 14 years after the crime, and when he has "hedged" on whether he is actually innocent.

Justice David Souter, who seemed among the most open to a new constitutional right, was quick to challenge the state's argument. He questioned the harm in giving evidence, which has the potential to fully reveal the truth, to Osborne. Similarly Justice Stephen Breyer said, "He just wants some DNA. He's willing to pay for it."