Post conviction under 42 U.S.C.1983: Osborne v. D.A., 521 F.3d 1118 (9th Cir. 2008) Note: This decision reversed by Supreme Court; 129 S.Ct. 488 (2008). See below. The Supreme Court granted cert. in this Ninth Circuit case (District Attorneys Office for Third Judicial District v. Osborne, 521 F.3d 1118 (9th Cir. 2008)) and reversed the Ninth Circuit; 129 S.Ct. 488 (2009). See, Blog, July 10, 2009 for Supreme Court opinion. In 1994, William Osborne was convicted of kidnapping and sexual assault in Alaska state court and sentenced accordingly. The victim testified two black men drove her to a secluded area near Anchorage, brutalized and raped her and attempted to kill her. Police amassed corroborating evidence at the scene of the rape as described by the victim; witnesses saw the victim in the company of Osborne prior to the crime; Osborne confessed to his mother; he wrote a confession admitting the crimes. Police found a condom in the vicinity of the attack, and a DNA test of semen and hairs confirmed the identity of a black male. Osborne began the familiar appellate dance and the Alaska Supreme Court affirmed the conviction but ordered a post conviction hearing when Osborne contended he wanted a more sophisticated DNA test unknown at the time of his trial in1994 (fourteen years ago). At the trial, he had refused to provide a blood sample for testing on advice of counsel because the defense consisted of alibi and his counsel wanted to go to the jury on the weakness of the prosecution case. Osborne had confessed to the crime orally to relatives and in writing to police. Osborne never raised ineffective counsel in any state or federal court. Osborne argued to the Alaska Supreme Court that the DNA test at trial revealing the percentage of black men who carried the same gene was replaced by modern DNA testing. He requested the Alaska Supreme Court to hear his petition for review on two occasions seeking disclosure of the evidence introduced at trial in order to conduct new testing. The Alaska court denied his requests. Barred by the Anti-terrorism & Effective Death Penalty Act (AEDPA) and its one year statute of limitations to file federal habeas corpus, Osborne filed a 42 U.S.C.1983 complaint in federal court alleging disclosure of testing results qualified as a predicate for alleging factual innocence under federal law. The Ninth Circuit faced a heavy burden to grant relief to a state prisoner whose conviction was affirmed twice on appellate review, post conviction relief denied, and Osborne never asserted factual innocence. Undeterred, the Ninth Circuit panel ignored Alaska state court findings, minimized the evidence at trial, denied abstention, and held Osborne did not have to establish factual innocence. Needless to say, the Supreme Court granted review. The Ninth Circuit grounded its decision in Brady v. Maryland, 373 U.S. 83 (1963), a Supreme Court case mandating the prosecution to disclose to the defense any pre trial exculpatory evidence. There is no evidence in this case to support that contention. Citing its own Ninth Circuit precedent, and no Supreme Court decisions, the panel held the Brady rule applies to post conviction disclosure of exculpatory evidence. The Ninth Circuit panel, oblivious to the testimony of Osbornes counsel at a post conviction hearing that she had declined a prosecution request at trial for a blood sample, permitted Osborne to challenge his conviction fourteen years after trial. What are the chances of the prosecutor obtaining evidence from witnesses and locating the tangible evidence necessary for testing after this lapse of time? The defense cross examined the witnesses who testified for the prosecution explaining the DNA results. Osborne had an opportunity to establish his innocence by providing a blood sample at trial and refused to do so. Now, fourteen years later, he seeks the evidence he initially refused to produce. The Ninth Circuit held that Alaska used the wrong test ( the Alaska rule) in denying Osborne his request. The Ninth Circuit panel ruled its own legal test was correct-and less stringent.

Convicted and sentenced to death in an Arizona state court eighteen years ago for the murder of a four year old child, Styers began the familar appellate dance. The Arizona Supreme Court affirmed the conviction although it reversed one count alleging pecuniary gain. On appeal in state court from his conviction and to avoid the death penalty, Styers offered evidence he suffered from posttraumatic stress disorder attributable to his service in Vietnam. The Arizona court wrote: “This could, in an appropriate case, constitute mitigation [of the sentence]. . . However, two doctors who examined defendant could not connect defendant’s condition to his behavior at the time of the conspiracy and murder.” Styers filed habeas corpus in the Ninth Circuit. In what can only be characterized as rhetorical legerdemain, the Ninth Circuit three judge panel writes that by including the word “however” in that quoted sentence (a “conjunctive adverb,” said the court) the Arizona court indicates the absence of causation between the disorder and the crime. According to the Ninth Circuit panel, causation is not the test, and the court must consider all the evidence without including that element. Therefore, this evidence was not considered as a mitigating factor by the trial judge in sentencing the defendant to death. This statment misreads the Arizona Supreme Court decision. That court is saying the doctors found no evidence of any disorder. In other words, any evidence of stress was absent and irrelevant to the trial court decision. The Ninth Circuit panel remanded for re sentencing. Given the heinous nature of the crime in murdering a helpless four year old child, the decision to return this case to the trial court for re sentencing is inexplicable. Styers v. Schriro, 547 F.3d 1026 (9th Cir. 2008)