Supreme Court considers convicts' right to evidence

WASHINGTON -- The Supreme Court heard a case Monday that could determine whether convicts have a constitutional right to biological evidence for DNA testing.

The rape case from Alaska tests prisoners' ability to obtain evidence years after convictions to try to take advantage of the technology that has led to the exoneration of more than 200 people. Thirty-one states have joined the case, arguing that the issue should be left to state legislatures, most of which allow some post-conviction DNA tests. They say in many cases it would be a time-consuming, "meaningless exercise."

Alaska rape convict William Osborne waived a chance for a DNA test at trial and later admitted guilt. Questions lingered Monday about whether he would now assert his innocence. As a result, the arguments took enough turns to make it hard to predict whether a majority would require Alaska to give evidence from his case, or more broadly, declare a right to biological evidence.

The justices seemed divided along the usual ideological lines. Justice Anthony Kennedy, the swing vote, did not reveal his position.

Alaska Assistant Attorney General Kenneth Rosenstein said Osborne, who has "hedged" on whether he is innocent, has no right to the evidence.

Justice David Souter, a liberal who appeared open to a new right, said, "All he's doing is seeking evidence. The evidence may prove to be exonerating and it may not be."

"If he doesn't allege his actual innocence," Rosenstein said, "this is really … a fishing expedition."

Justice John Paul Stevens noted that there have been DNA cases in which the person was exonerated despite an earlier confession.

Osborne's lawyer Peter Neufeld said his client should have access to evidence that could conclusively prove his innocence. Neufeld suggested Osborne may have confessed to win parole.

"This is the very first case … where the prosecutor concedes that a DNA (test) would be absolutely slam-dunk dispositive of innocence, but doesn't consent to it," said Neufeld, co-founder of the Innocence Project, which helps inmates with DNA tests.