Thursday, March 12, 2009

Westchester Guardian/Jeffrey Deskovic.

Jeff Deskovic.

Georgetown University Law School Conference
Supports William Osbourne, Part 1

Last Monday, March 2, The Innocence Project argued the case of William Osbourne before the United States Supreme Court. The central issue
in the Osbourne case is whether or not defendants have a Constitutional right to post-conviction DNA testing which can prove innocence.

In order to raise public awareness of the profound implications of this case, an event was held a few days earlier, on February 26, at Georgetown
University’s Law School. Shawn Amherst, the executive director of The Mid-Atlantic Innocence Project, was the Moderator. One of the goals of the project is to prevent and correct wrongful convictions in Maryland and the District of Columbia. She said that her organization was very excited to be there, co-sponsoring the event, along with the Georgetown Office of Public Service and Community Service as well as The Innocence Project.

Amherst stated that the case had broad implications, and that many people have an interest in its outcome. In the audience that day were people
who have had personal experiences with wrongful convictions: exonerees, a police officer who has experience with wrongful conviction cases, and a victim who misidentified her rapist and is now working to get him exonerated. Those people, she said, represented many more people across the country who could not be there that day.

To begin things, Amherst called up Professor David Rudovsky to offer background information on the Osbourne case. She stated that Rudovsky is a Senior Fellow at the University Of Pennsylvania’s School of Law, one of the nation’s foremost authorities on criminal law, Constitutional
Criminal Procedures and Evidence, and one of the leading minds on federal post-conviction remedies, which are the very issues raised by the Osbourne case.

Rudovsky started off by giving a factual background of the case. William Osbourne was convicted of rape in 1993 by the state of Alaska. As with
many wrongful conviction cases, it was a brutal crime. Two assailants attacked and raped the victim. One of the rapists, Dexter Jackson, was
apprehended. Jackson proceeded to implicate Osbourne. The identification that the victim gave did not really fit Osbourne and was tentative,
although at trial she identified him.

The rapist who penetrated the victim took off a blue condom that was recovered and had seminal fluid in it. In 1993 DQ-Alpha DNA was being utilized in Alaska, and with that type of testing the best that the state could determine was that Osbourne fit within 14 to 16% of the population who would have secreted as he did, which is no more accurate than blood type testing.

For eight years Osbourne has been seeking, unsuccessfully, more sophisticated DNA testing, which the district attorney in Alaska has been successfully blocking. He finally won the right to the testing at the United States Court Of Appeals, and now an Alaskan District Attorney’s Office has appealed the case to the United States Supreme Court. After Osbourne won the right to the testing, the district attorney admitted, for the first time, that the DNA Test, if performed, would conclusively show guilt or innocence.

Despite this public acknowledgment, he nonetheless continues to fight the testing. The Innocence Project has stated publicly, a number of times,
that although they don’t know whether Osbourne is guilty or innocent, he has the right to the testing. While being mindful of Mr. Osbourne’s rights, they are also aware that much more than his rights are on the line. The Constitution requires, they argue, that all citizens have the right to such testing in order to be able to prove their innocence. The district attorney has put forth the argument that the request for testing is frivolous in light of the “overwhelming evidence of guilt”, in addition that it would open the floodgates of litigation, and, finally, the public has a legitimate right to finality. Commenting on these arguments, Rudovsky stated that in many other cases where there was said to be overwhelming evidence of guilt, DNA has proven people innocent. Furthermore, there would not be a flood of litigation if Osbourne won because it would establish as law across the land that states must grant testing.

An amicus brief is a brief filed by people who are not parties to the instant case but who believe that their rights will be affected by the decision
and therefore want to make their position known, while citing law in an effort to support their position. The amicus briefs filed on behalf of Osbourne include those from current and former prosecutors, crime victims and victims’ families, people exonerated with post conviction DNA
testing, civil liberties and legal rights organizations, people who received clemency through post-conviction DNA testing.

The amicus briefs filed in support of Alaska include: the City of New York, an amicus brief from 31 U.S. States, briefs from the city, state and county associations, an amicus from crime victims, and a brief from the United States of America. The various states who argued on behalf of Alaska do so by arguing, in a nutshell, states rights: that states should be able set their own rules to decide for themselves whether to grant testing.
In order to give readers an even greater sense of the issue involved in this case, I decided to include an excerpt of a press release by The Innocence
Project: “The issue in this case is whether a state can deny a prisoner access to DNA testing that was not available at the time of trial and has the potential to prove his innocence. In the vast majority of cases, prisoners are granted DNA testing under state law or because prosecutors consent to testing without a court order. Alaska is the exception. It is the only state in the nation with no known case of a prisoner receiving DNA testing, either through court order or a prosecutor’s consent.

‘This case involves a very important Constitutional protection – one that is the only option for William Osborne,’ said Peter Neufeld, Co- Director of the Innocence Project, which is affiliated with Cardozo School of Law. In asking the Supreme Court to take the case, the state conceded for the first time that favorable DNA testing ‘would conclusively establish [Osborne’s] innocence’ – raising more questions about why the state will not simply consent to DNA testing.

The testing would come at no cost to the state, since the Innocence Project will pay for it, as the organization does in most of its cases. In its Supreme Court brief, the state makes procedural claims against Osborne’s lawsuit seeking DNA testing but never gives a rationale for denying him access to testing itself. In oral arguments at the U.S. Court of Appeals for the Ninth Circuit, a three-judge panel repeatedly questioned the state’s attorneys about why they are denying Osborne access to DNA testing. The attorneys said they were not ‘willing or able’ to answer any of those questions ‘at this time.’

The case before the Supreme Court does not seek to overturn Osborne’s conviction or challenge any part of the process leading to his conviction
– instead, it challenges the government’s arbitrary refusal to permit him access to the evidence in his case so that it can be subjected to testing
that was not available at the time of his trial. ‘DNA technology is new, but the principles in this case have a long and rich tradition. For decades,
the Supreme Court has recognized that defendants need access to evidence and the People’s right to liberty must be protected even after they
are convicted. More recently, courts across the country have recognized the power of DNA testing to resolve claims of innocence,’ Neufeld said.

‘Most prosecutors, judges and states recognize that while DNA testing in these cases may not always protect a conviction, it protects our system of justice by revealing the truth.’” Wanting to get the perspectives of people who have been exonerated by DNA testing, Ms. Amherst then
called Marvin Anderson to speak. According to The Innocence Project’s website, the facts of his case are: “On December 14, 1982, then
eighteen years old, he was convicted by a jury of robbery, forcible sodomy, abduction, and two counts of rape. The court sentenced Anderson to a
total of two hundred and ten years imprisonment in the Virginia State Penitentiary. Anderson went to prison in 1983 and was released after fifteen
years, facing lifetime parole. After being paroled, Anderson continued his efforts to clear his name. A young white woman was brutally raped on
July 17, 1982, by a black man who was a total stranger. He approached her on a bicycle. The assailant beat her repeatedly, threatened her with
a gun, raped her, and sodomized her.

After she reported the crime, a police officer singled out Marvin Anderson as a suspect because the perpetrator had told the victim that he ‘had a
white girl,’ and Marvin Anderson was the only black man the officer knew who lived with a white woman. Because Anderson had no criminal
record, the officer went to Anderson’s employer and obtained a color employment photo identification card. The victim was shown the color identification card and a half dozen black and white mug shots and then asked to pick the perpetrator. The victim identified Anderson as her assailant. Within an hour of the photo spread, she was asked to identify her assailant from a lineup. Marvin Anderson was the only person in the lineup whose picture was in the original photo array shown to the victim. She identified him in the lineup as well.

At trial, the victim testified in detail regarding the assault. In addition to the rape, she testified that her assailant pried her mouth open and inserted his penis and that he forced her to consume fecal matter and urinated on her. She again identified Anderson as her assailant. The serology work completed by the Virginia Bureau of Forensic Science was uninformative. Anderson’s trial counsel offered an alibi defense which included Anderson’s white girlfriend.

From the very beginning of the case, people in the community became aware that the most likely suspect was another black man named John Otis
Lincoln. The bicycle that had been identified as being used by the assailant was identified by the owner, who said that Lincoln had stolen it from him approximately one half hour before the rape. Although Anderson requested that his attorney call both the owner of the bicycle and Lincoln as witnesses, his counsel declined. An all white jury convicted Anderson on all counts. Although it was his first conflict with the law, he received consecutive sentences totaling two hundred and ten years.

In 1988, John Otis Lincoln came forward and admitted his involvement in the crime in an effort to clear Anderson. At a state habeas hearing in
August 1988, Lincoln confessed and offered details of the crime under oath, in open court. Nevertheless, the same judge that presided over the original trial declared Lincoln a liar and refused to vacate the conviction. A coalition of civil rights groups, church leaders, and members of the state legislature petitioned then-Governor Wilder for clemency in 1993, which was denied.

In the years after his conviction, after DNA testing became widely available, Anderson sought to prove his innocence of the crime. He insisted that the spermatozoa and semen samples be subjected to DNA analysis. His lawyers were told by the police, prosecutor, and court that the rape kit and its contents had been destroyed. Anderson then contacted the Innocence Project and his case was accepted in 1994.

In 2001, Dr. Paul Ferrara, Director of the Virginia Division of Forensic Science, advised the Innocence Project that certain physical evidence from
the case - including sperm and semen samples recovered from the victim’s body - had been located in the laboratory notebook of the criminalist who performed conventional serology in 1982. Had that criminalist followed policy and returned the partially used swabs to the rape kit, all evidence in this case would have been forever lost.

The Innocence Project contacted the Commonwealth Attorney for Hanover County, who agreed that the Division of Forensic Science should
conduct DNA tests on the evidence. In April 2001, however, the Director of the Virginia Department of Criminal Justice Services denied the request for testing, stating that because of ‘[t]he current number of cases pending in the Division and the potential for establishing an unwelcome precedent,’ and that Department would permit post-conviction scientific testing ‘only upon a defendant’s attorney showing ample cause for the court or the Governor’s Office to order such testing.’

In May 2001, Virginia adopted a new statute, VA Code Sec. 19.2-327.1, that permits individuals convicted of a felony to move the Circuit Court
that entered the original conviction to order new scientific analysis of previously untested scientific evidence. The Innocence Project, in conjunction with the Innocence Project of the National Capital Region at American University, filed under this new statute and won in the fall of 2001, initiating the process of getting the evidence in Anderson’s case tested.

Results on December 6, 2001, excluded Anderson as the perpetrator. Because the evidence was heavily degraded, the profile obtained was limited to four STR markers. When the profile was run against Virginia’s convicted offender DNA database, it matched two inmates. Although the identity of these two men has not been officially revealed, it appears that one of the inmates is John Otis Lincoln. Marvin Anderson spent fifteen years
in prison and four years on parole fighting to prove his innocence.

Following the recitation of his case, Johnson added that he never gave up. He stated that when a person is wrongfully convicted their lives stop, their families lives stop, and that even a person’s name stops. Now that he has been cleared, both his family and he are able to walk with their heads held high. He concluded by saying that he prays that the U.S. Supreme Court rules in behalf of Osbourne, allowing him to get the testing while also granting every citizen the right to the testing.

Dennis Fritz stated that he had spent 11 years in prison for a murder he was proven innocent of, and that his now deceased co-defendant, Ron
Williamson, had been sentenced to death. Fritz had been wrongfully convicted based upon a jailhouse informant claiming that Fritz had confessed.

This confession came one day before the prosecution would have been forced to drop its case against him. The main witness against the two was a man named Glen Gore, who DNA testing later proved was the actual perpetrator. Additionally, police had statements from Williamson regarding a
dream he had about the crime. Fritz stated that he remembered fighting for the DNA testing and thus he empathized with Osbourne.

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