In one sense, the matter of District Attorney's Office for the Third Judicial District v. William G. Osborne - which was argued before the US Supreme Court on March 2 - is a whodunit. Both before and after his conviction, William Osborne has maintained he is not the man who participated with Dexter Jackson in a brutal rape and kidnapping that occurred sixteen years ago on a secluded Anchorage, Alaska, road. He is, he says, the wrong guy.

    Of course, the identity of the second rapist is not an issue for the Supreme Court to decide. Ordinarily, the justices consider only matters of law. But in order to address the legal questions raised by the Osborne case, the court will have to confront a different mystery: Why has the State of Alaska fought tooth and nail for more than half of Osborne's adult life to deny him access to biological evidence for purposes of sophisticated and precise DNA testing (called Short Tandem Repeat, or STR) that can - as former Fourth Circuit Judge J. Michael Luttig has put it in another context - make it "literally possible to confirm guilt or innocence beyond any question whatsoever?"

    Did Osborne waive an opportunity to apply this test to the evidence before his conviction? Nope. There is no dispute that this methodology did not exist at the time of the 1993 trial. Is it the cost? Nope. The Benjamin Cardozo School of Law Innocence Project has agreed to pay the $1,000 fee. Why, then, do the prosecutors from Alaska stubbornly refuse to open the evidence locker? There appears to be no good reason - or almost any reason at all.

    Admittedly, Alaska has no statutory provision for post-conviction DNA analysis. (It is one of only six states without a law that allows such tests when a defendant shows that favorable results would create a "reasonable probability" of innocence.) But why not simply consent to the STR test as other states have done in similar situations?

    That, in substance, is what a three-judge panel from the Ninth Circuit Court of Appeals wanted to know in 2007 when the parties appeared for yet another appellate argument in the ten-year multi-court litigation, this time because the State of Alaska was seeking reversal of a lower court's order to turn over the evidence for DNA testing. As counsel for the state stood at the podium, the judges asked repeatedly: Why is the state continuing to deny access? The answer was remarkably consistent, if astounding: We are not "willing or able" to answer those questions "at this time."

    Not surprisingly, the Ninth Circuit Court of Appeals was underwhelmed by this response. Affirming the district court's order to turn over the evidence, it held that "under the unique and specific facts of this case and assuming the availability of the evidence in question [Osborne] has a limited due process right of access to the evidence for purposes of post-conviction DNA testing."

    It remains to be seen whether the Supreme Court will divine a legally acceptable basis for the State of Alaska's decade-long refusal to allow Osborne access to the very same evidence it used to convict him so he can conduct a DNA test capable of exonerating him. Osborne's attorneys faced some tough questions at oral argument. But the truth is, one would have to search long and hard in the State of Alaska's written submissions for a rationale of any sort that does not defy logic.

    Consider, for fun, the state's procedural objection to the case, which has such a distinctly Alice-in-Wonderland quality that it is difficult even to explain. But here goes:

    The State Gets Ahead of Itself

    To understand the State of Alaska's convoluted position, you first need some background on two federal legal remedies available for state prisoners. Each has a distinct purpose and allows for a different type of relief. The first - affectionately known as 42 U.S.C. 1983 - only allows lawsuits that allege deprivation of federal constitutional rights relating to conditions of confinement. This is interpreted somewhat broadly: If your prison had no law library, for example, you could sue under Section 1983 alleging a deprivation of your constitutional right to meaningful access to the courts. If you prevailed, you could possibly get monetary damages (although probably not) and an injunction ordering the prison to provide the law books. You would not, however, get out of jail just because your Section 1983 action was successful. Indeed, the Supreme Court has ruled that Section 1983 cannot be used as the basis for a lawsuit that will necessarily lead to immediate release.

    The only remedy that does allow a state prisoner to be freed from custody based on a federal constitutional violation is habeas corpus. And it is only available where the violation alleged could make the very fact of confinement illegal. If, say, you wanted to allege your conviction was unconstitutional because it resulted from ineffective assistance of counsel, your appropriate course would be to file a petition for habeas corpus, alleging a violation of the Sixth Amendment right to counsel. If you were successful, the relief would be release from prison.

    So what does all of this have to do with Osborne and the State of Alaska?

    Well, the lawsuit that Osborne has been pursuing all these years is based on 42 U.S.C. 1983. Specifically, he claims that the state's refusal to provide the evidence deprives him of liberty without due process of law in violation of the Fourteenth Amendment. He is not asking to be released from prison if a violation is found. Quite explicitly, the only relief Osborne is seeking is an injunction requiring the State of Alaska to give him access to the evidence for DNA analysis.

    In order to put up a procedural bar to the case, however, the State of Alaska has chosen to ignore the unambiguous nature of Osborne's complaint. It argues that since Osborne's ultimate motive is to get out of prison, his Section 1983 action should be dismissed and he should be required to file a federal habeas petition.

    The Ninth Circuit gave short shrift to this contention, noting that if Osborne wins his Section 1983 suit, the only relief available will be access to the evidence. That's it. If the STR testing were to show that he is innocent, he would then have to initiate an entirely separate proceeding, or perhaps file a petition for clemency, in order to get out of prison. If the test did not exonerate him, of course, that would be the end of it. In other words, the Court of Appeals said, "The state is getting ahead of itself."

    Catch-22

    The problem with the State of Alaska's artificial roadblock to Osborne's simple request is not simply that it is illogical; it is disingenuous, at best. Why? Because, as the case now stands, in order to file a habeas petition seeking release from prison, Osborne would have to make what is known as a "freestanding claim" of actual innocence. To attempt to prove that he is actually innocent, however, Osborne needs to obtain the biological evidence he's been trying to get for so long. In order to obtain this evidence in a lawsuit, he needs to be entitled to discovery. But, here's the rub: Under federal law, habeas petitioners are not entitled to discovery. A district court may require them to proceed with the evidence they have at the time they file the case. As Osborne's attorneys argued to the Supreme Court, this Catch-22 formulation could not possibly be an accurate reflection of the law:

Indeed, it would be passing strange if a prisoner would be obligated to file a habeas petition seeking relief based on actual innocence without any evidence to support that claim, for the sole purpose of obtaining that evidence in discovery. (n.9)

    The State of Alaska's ten-year denial of access to Osborne for purposes of this cost-free test is also passing strange, and quite possibly tragic. Osborne may or may not be innocent, but STR analysis is now universally recognized as reliable and accurate to a degree that removes all possible doubt. The state has no legitimate interest in incarcerating a person who is innocent and it has a compelling duty to apprehend one who is in fact guilty. Equally important - as former Attorney General Janet Reno and the many other prosecutors who jointly filed an amicus brief pointed out - the job of a prosecutor is to do justice, not merely to win the case. We can only hope that the Supreme Court will ultimately see it the same way.