District Attorney’s Office of the Third Judicial District v. Osborne; U.S. Supreme Court Blocks Ability for Wrongfully Convicted to Prove Innocence


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair


George Rodriquez spent 17 years in the Texas prison system for a crime he did not commit. He was 26 years of age in 1987 when he was wrongfully convicted by a Harris County jury for the rape of a 14-year-old girl. The jury based its decision on a critical piece of forensic evidence; a pubic hair found in the victim’s underwear. A serologist with the Houston City Police Department’s Crime Lab determined that the pubic hair did not belong to another suspect in the rape case, Isidro Yanez. The serologist testified at Rodriquez’s trial, saying that while his forensic testing ruled out Yanez, it did not rule out Rodriquez.


Seventeen years later DNA testing established that the pubic hair in fact belonged to Yanez and not to Rodriquez. Rodriquez was released from prison in 2004. The Harris County District Attorney’s office refused to declare Rodriquez “actually innocent” of the crime. That official refusal to acknowledge his innocence precluded him from receiving a pardon and being awarded state compensation for his wrongful confinement. He filed a federal civil rights suit against the City of Houston and a federal court jury on June 25, 2009 awarded him $5 million dollars in damages for the 17-year wrongful imprisonment.


The Rodriquez case has not been the only Texas DNA case is the news lately. Two men convicted in the infamous 1991 Austin “yogurt shop” murder case were recently released on bond from jail. The convictions of the two men, Michael Scott and Robert Springsteen, were reversed several months ago on appeal after DNA tests on the state’s evidence indicated the presence of an unknown suspect. Attorneys for the two men say the presence of DNA evidence of the unknown suspect exonerates their clients. Prosecutors do not agree. They believe the new evidence only indicates that yet another person was involved in the crime; therefore, prosecutors plan to continue their prosecution of Springsteen and Scott for the murders of the four teenage girls killed during the robbery of the Austin yogurt shop.


These two Texas cases illustrate the potentially devastating impact of a recent U.S. Supreme Court decision in an Alaska case that held state prisoners do not enjoy a constitutional right to post-conviction access to the State’s evidence for DNA testing. 1/

Sixteen years ago William Osborne was convicted of the violent rape of a woman in Anchorage, Alaska. His defense attorney made a tactical decision not to pursue sophisticated DNA testing of the state’s physical evidence believing that any incriminating results would be harmful to her client. The attorney instead presented a “mistaken identification” defense.

Osborne had always maintained his innocence of the sexual assault. He eventually convinced the Innocence Project of the Benjamin N. Cardozo School of Law in New York City to take his case. The Anchorage District Attorney’s office had already denied the inmate’s personal request for access to the state’s evidence for DNA testing before the Innocence Project got involved in his case. The Innocence Project then filed a federal civil rights lawsuit to compel the District Attorney’s office to release the state’s physical evidence so it could subject to sophisticated DNA testing.+


A federal district court ruled that Osborne had a limited constitutional right to post-conviction access to the state’s physical evidence for DNA testing. That ruling was upheld by the Ninth Circuit Court of Appeals. The District Attorney appealed the case to the U.S. Supreme Court which agreed to hear the case last fall. And on June 18, 2009, in a 5-4 decision, the court held that Osborne did not enjoy a constitutional right to obtain post-conviction access to the state’s evidence for DNA testing.


While most states, such as Texas, have statutory procedures to permit post-conviction access to the state’s physical evidence for DNA testing once certain evidentiary criteria are met, the high court’s decision not to grant constitutional protections to such evidence access now leaves the issue of whether or not to permit DNA testing in cases claiming actual innocence exclusively up to the very court that wrongfully convicted the individual in the first place. The Osborne decision illustrates how damaging this can be:


“On the evening of March 22, 1994, two men driving through Anchorage, Alaska, solicited sex from a female prostitute, K.G. She agreed to perform fellatio on both men for $100 and got in their car. The three spent some time looking for a place to stop and ended up in a deserted area near Earthquake Park. When K.G. demanded payment in advance, the two men pulled out a gun and forced her to perform fellatio on the driver while the passenger penetrated her vaginally, using a blue condom he had brought. The passenger then ordered K.G. out of the car and told her to lie face down in the snow. Fearing for her life, she refused, and the two men choked her and beat her with the gun. When K.G. tried to flee, the passenger beat her with a wooden axe handle and shot her in the head while she lay on the ground. They kicked some snow on top of her and left her for dead.


“K.G. did not die, the bullet had only grazed her head. Once the two men left, she found her way back to the road, and flagged down a passing car to take her home. Ultimately, she received medical care and spoke to the police. At the scene of the crime, the police recovered a spent shell casing, the axe handle, some of K.G.’s clothing stained with blood, and the blue condom.


“Six days later, two military police officers at Fort Richardson pulled over Dexter Jackson for flashing his headlights at another vehicle. In his car they discovered a gun (which matched the shell casing), as well as several items K.G. had been carrying the night of the attack. The car also matched the description K.G. had given to the police. Jackson admitted that he had been the driver during the rape and assault, and told the police that William Osborne had been his passenger. Other evidence also implicated Osborne. K.G. picked out his photograph (with some uncertainty) and at trial identified Osborne as her attacker. Other witnesses testified that shortly before the crime, Osborne had called Jackson from an arcade, and then driven off with him. An axe handle similar to the one at the scene of the crime was found in Osborne’s room on the military base where he lived.


“The State also performed DQ Alpha testing on sperm found in the blue condom. DQ Alpha testing is a relatively inexact form of DNA testing that can clear some wrongly accused individuals, but generally cannot narrow the perpetrator down to less than 5% of the population. The semen found on the condom had a genotype that matched a blood sample taken from Osborne, but not ones from Jackson. K.G., or a third suspect named James Hunter. Osborne is black, and approximately 15% of black individuals have such a genotype. In other words, the testing ruled out Jackson and Hunter as possible sources of the semen, and also ruled out over 90% of other black individuals. The State also examined some pubic hairs found at the scene of the crime, which were not susceptible to DQ Alpha testing, but which state witnesses attested to be similar to Osborne.” 2/


The crime against K.G. was undeniably horrible, and while there was incriminating evidence against William Osborne, it was by no means compelling. It was enough for the jury to convict him of kidnapping, assault and sexual assault, and for the court to sentence him to 26 years in prison. With Dexter Jackson and James Hunter ruled out as depositors of the semen in the blue condom, it is easy to understand why Osborne would want a more sophisticated DNA testing of that semen in order to establish he was not its depositor either.


The Supreme Court, however, was not persuaded—undoubtedly influenced by the level of incriminating evidence against Osborne. The facts of the Osborne case also serve to explain why the court felt post-conviction DNA testing sought by state inmates like Osborne should be a legislative and not a constitutional matter:


“Modern DNA testing can provide powerful new evidence unlike anything known before. Since its first use in criminal investigations in the mid-1980s, there have been several major advances in DNA technology, culminating in STR technology. It is now often possible to determine whether a biological tissue matches a suspect with near certainty. While of course many criminal trials proceed without any forensic and scientific testing at all, there is no technology comparable to DNA testing for matching tissues when such evidence is at issue.


“At the same time, DNA testing alone does not resolve a case. Where there is enough incriminating evidence and an explanation for the DNA result, science alone cannot prove a prisoner innocent. The availability of technologies not available at trial cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt. The dilemma is how to harness DNA’s power to prove innocence without unnecessarily overthrowing the established system of criminal justice.


“The task belongs primarily to the legislature.” 3/


While the state’s physical evidence did not convincingly connect Osborne to the attack on K.G., other physical and circumstantial evidence did: some of her personal belongings were found in Dexter Jackson’s vehicle; Jackson and Osborne were acquaintances; an axe handle similar to the one in the attack on K.G. was found in Osborne’s room; and the victim made an in-court identification even though her pretrial lineup identification was shaky. This circumstantial evidence created a reasonable inference that Osborne was involved in the attack on K.G.


Reasonable inferences, however, do not satisfy the sacred constitutional guarantee that a criminal defendant’s guilt must be proven by the state beyond a reasonable doubt. The facts and evidence cited by the Supreme Court indicate that the state of Alaska did not carry that burden in the Osborne case. The state’s own testing precluded Jackson and Hunter as the depositor of the semen found in the blue condom; and if DNA testing also cleared Osborne as the depositor, that would be compelling and convincing enough evidence to undermine the jury’s guilty verdict.


And, tragically, that is precisely why the politically conservative majority of the Supreme Court turned aside Osborne’s argument that a state inmate should have a constitutional right to post-conviction DNA testing:


“Establishing a freestanding right to access DNA evidence for testing would force us to act as policymakers, and our substantive-due-process rulemaking authority would not only have to cover the right of access but a myriad of other issues. We would soon have to decide if there is a constitutional obligation to preserve forensic evidence that might later be tested. If so, for how long? Would it be different for different types of evidence? Would the State also have some obligation to gather such evidence in the first place? How much, and when? No doubt there would be a miscellany of other minor directives.


“In this [Osborne] case, the evidence has already been gathered and preserved, but if we extend substantive due process to this area, these questions would be before us in short order, and it is hard to imagine what tools federal courts would use to answer them. At the end of the day, there is no reason to suppose that their answers to these questions would be any better than those of state courts and legislatures, and good reason to suspect the opposite.” 4/


The political pillars of that legal reasoning are simple. The Supreme Court believes a state conviction should be considered “final” absent overwhelming and compelling evidence of innocence. Because there was some incriminating evidence against Osborne, the court simply did not believe there was a sufficient reason to assume that the requested sophisticated DNA testing would exonerate him—and there are too many cases like his that the federal courts would have to deal with should DNA testing assume constitutional proportions.


Osborne’s case is remarkably similar to the 1991 Austin “yogurt shop” murder case. Post-conviction DNA testing placed another individual at the crime scene in the yogurt shop case, and while the prosecutors said that evidence alone was not enough to exonerate Springsteen and Scott, it was enough for a state appeals court to reverse their convictions. The same legal rationale would also apply in Osborne’s case should DNA testing exclude him as a depositor of the semen in the blue condom. It would probably be sufficient enough to warrant reversal of his conviction even if it did not completely exonerate him in the attack on K.G.el the District Attorney’s office to release the state’s physical evidence so it could subject to sophisticated DNA testing.


It is marginal cases like the “yogurt shop” murder case and the Osborne sexual assault case that will suffer because of the Supreme Court decision. If the state elects to deny inmates in these kinds of cases access to the its physical evidence for post-conviction DNA testing, he does not have a meaningful federal remedy to address his claim of innocence. As the Supreme Court in Osborne pointed out, convicted felons do not enjoy a constitutionally protected interest in “liberty.”+




1/ District Attorney’s Office of the Third Judicial District v. Osborne, 2009 U.S. LEXIS 4536 (U.S. June 18, 2009)
2/ Id. Lexis at 7-10
3/ Id. Lexis at 17-18
4/ Id. Lexis at 37-38

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair