 April 03, 2008
Over fourteen years ago, an Anchorage jury convicted Osborne and another man of rape, kidnapping, and felony assault for raping a woman at gunpoint, beating her with an axe handle, shooting her in the head, and leaving her for dead in a snowbank near Earthquake Park. The day after the assault, the police found a used blue condom at the scene. They ran a DNA test on the sperm in the condom and found that the type of DNA in it was shared by about one-sixth of the African-American population. Osborne is African-American, so the evidence tended to link him to the crime, but it was not conclusive. When he went to trial in 1994, Osborne's defense was that the victim was mistaken in her identification of him and that he had an alibi. His lawyer decided not to have additional testing of the DNA in the sperm in the condom because she believed additional testing might solidify the state's case against him. The jury did not believe Osborne's defense and he was convicted of two counts of first-degree sexual assault, kidnapping, and first-degree assault. The Alaska Court of Appeals affirmed his convictions in 1996. Osborne admitted his guilt under oath to the parole board in 2004. His co-defendant has also repeatedly identified Osborne as having participated in the crimes. But Osborne petitioned for post-conviction relief, first claiming that his lawyer was ineffective because she didn't seek further DNA testing on the sperm in the blue condom. The Alaska Court of Appeals upheld the lawyer's decision to not seek further testing as a competent one. The court of appeals then said that since his lawyer had made a valid tactical decision not to test the sperm, to gain further relief Osborne would have to show, at a minimum that he was convicted based primarily on the victim's identification of him, that that identification was so shaky that it was unreliable, and that therefore newer DNA tests of the evidence would have made a difference to a jury. The court of appeals sent the case back to the superior court to make findings on these factual issues. Judge Sharon Gleason of the state superior court ruled against Osborne. Osborne appealed Judge Gleason's ruling to the Alaska Court of Appeals, and the court of appeals affirmed Judge Gleason. Osborne asked the Alaska Supreme Court to review the decision, but that court declined. Meanwhile, Osborne, who is represented in part by the Innocence Project, sued the Anchorage District Attorney's Office, claiming he had a federal constitutional right to post-conviction DNA testing of the sperm in the blue condom. The U.S. District Court agreed. On April 2, 2008, a three-judge panel of the Ninth Circuit Court of Appeals affirmed the U.S. District Court. The panel held that Osborne has to do no more than show a reasonable probability that if the evidence were tested, he could prove in a post-conviction relief action that he is probably innocent. According to the panel, such a showing can be made on less than a preponderance of the evidence. Since the court concluded that Osborne had made this showing, the court said "yes" to the additional DNA tests. The state currently intends to seek further review of the Ninth Circuit's three-judge panel decision. "The case is a matter of first impression, conflicts with decisions of the Fourth, Sixth, and Eleventh Circuits, and presents issues of great legal significance," said appellate attorney Nancy Simel. Osborne was released from prison for his crimes on June 26, 2007. Six months later, on December 27, 2007, he was arrested and charged in a new case with four counts of kidnapping, four counts of first-degree robbery, two counts of second-degree assault, two counts of third-degree assault, and one count each of first-degree burglary, third-degree weapons misconduct, and second-degree theft. The charges in the new case are merely accusations, and Osborne is presumed innocent of them until and unless proven guilty.
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