Alaska’s Catch-22

One would think that if the technology exists to help prove a person’s innocence or guilt, it would be used to the fullest extent possible. Then why is it that Alaska has the ability to test DNA samples in the rape conviction of William Osborne, but refuses to do so, despite agreeing that the test could definitively prove Osborne’s innocence?

Peter Neufeld, Co-Director of the Innocence Project, argued before the U.S. Supreme Court that prisoners have a constitutional right to DNA testing that can prove their innocence. Most of the States agree and have laws that provide for such post-conviction testing. Alaska, along with five other states, does not.

In the presentation before the Supreme Court, Justice Breyer asks Kenneth Rosenstein, Assistant Attorney General in Anchorage, Alaska, “In other words, all he has to do is file a new piece of paper tomorrow, and he gets the DNA?”

Rosenstein replies, “Right.” But before Osborne can do that, he has to insist that he’s innocent. According to Rosenstein, “If he doesn’t allege his actual innocence … then this is really an empty exercise, a fishing expedition. He wants to just see what … the evidence says. And that — that is not the way litigation works.”

That’s not the way litigation works. So, they don’t really care whether a man is innocent or guilty, so long as they follow the rules of litigation.

But under Alaska’s laws, even if Osborne does allege is innocence, it’s not enough. He has to be able to prove he’s innocent before he can get the DNA test that will prove his innocence. As Neufeld stated, “They specifically said in the State courts that it is not enough to simply assert one’s innocence; that you actually have to have proofs, facts that demonstrate your innocence before you get to that discovery. It is a Catch-22 situation.”

Remind me not to move to Alaska. It’s a beautiful state, but I don’t trust its laws or its lawyers.

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