Who knows. Because they can? There is no rationally legitimate reason for refusing to turn over the evidence for DNA testing. Mr. Osborne went to the state courts, where he was unsuccessful. He then went to the federal courts asking them to order the state to give him the evidence so that he can test it. He argued that he has a federal constitutional right to have the evidence so that he can clear his name. He prevailed in the federal district court and in the Court of Appeals for the Ninth Circuit.
In a Kafkaesque opinion by Chief Justice Roberts, joined by the other conservatives, the good Chief concluded that Mr. Osborne was not entitled to the evidence because the "Federal Government and the States have . . . developed special approaches to ensure that this evidentiary tool can be effectively incorporated into established into criminal procedure--usually but not always through legislation." Indeed, noted the Chief, "forty-six States have already enacted statutes dealing specifically with access to DNA evidence." The Chief calls this a "prompt and considered response" by the states. The Chief then told us that the "task" of "harness[ing] DNA's power to prove innocence . . . belongs to the legislature." In plain English: the federal courts do not have to worry about Mr. Osborne because his state will take care of him.
So, pray tell Good Chief, what prompt and considered statute has Alaska passed to address Mr. Osborne's request to test the evidence used against him to convict him? Well . . hm . . . Alaska is not one of the forty-six states, but the "State of Alaska . . . is considering joining them." Say what? But don't worry, "Alaska courts are addressing how to apply existing laws for discovery and postconviction relief to this novel technology." Excuse me?
Let's recap. Osborne cannot get the federal courts to order Alaska to give him the evidence that it used to convict him because providing this right is not the job of the courts but of the legislature. But wait, the state of Alaska has not provided a "prompt and considered response" to addressing requests for post-conviction DNA. Inconvenient fact. However, the State's courts have provided a prompt and considered response. Whew. (By the way, if the state courts can do this, why can't the federal courts?)
Okay, so what is the prompt and considered response of the Alaska state courts? The Alaska Court of Appeals rejected Mr. Osborne's request for the evidence on the ground that his attorney had made a strategic decision in not requesting this type of DNA testing. Yes, but the type of DNA testing that Mr. Osborne is now seeking was not available at the time of his trial. Whoops, another inconvenient fact.
So, what's the Chief's response? In a footnote, he acknowledged that "it is not clear whether the Alaska Court of Appeals was correct that Osborne sought only forms of DNA testing that had been available at trial . . . but it resolved the case on that basis." "It is not clear"? I thought that the Courts of Alaska were capable of providing a considered response . . . . Let's move on.
The Alaska Court of Appeals also concluded that Mr. Osborne was not entitled to the evidence that he sought because "the evidence of [Mr. Osborne's] guilt was too strong and [the DNA test] was not likely to be conclusive." But, I thought that the DNA test Mr. Osborne sought was conclusive as to his guilt or innocence. Yes, it is. Another inconvenient fact.
So, the Alaska Court of Appeals denied Mr. Osborne's request on the basis of two grounds that were clearly erroneous. But the Chief concluded "We see nothing inadequate about the procedures Alaska has provided to vindicate its state right to postconviction relief in general, and nothing inadequate about how those procedures apply to those who seek access to DNA evidence." Therefore, Mr. Osborne is not entitled to relief under the federal constitution.
Things that make you want to scream.