That prompted Justice Stephen G. Breyer, at a lively Supreme Court argument on Monday, to wonder why.
“He just wants some DNA,” Justice Breyer said to Kenneth M. Rosenstein, an assistant Alaska attorney general, noting that Mr. Osborne would bear the cost of the testing. “Now, why don’t you want to give it to him?”
Mr. Rosenstein said Mr. Osborne was engaged in “a fishing expedition,” particularly given that he had never sworn under oath that he was innocent.
That response was characteristic of an argument in which lawyers on both sides frequently failed to give categorical answers to fundamental questions.
Asked if his client was prepared to swear to his innocence, Mr. Osborne’s lawyer, Peter Neufeld, was equivocal. “I assume he certainly would,” Mr. Neufeld said.
Mr. Rosenstein did say that a general Alaska law governing post-conviction relief could provide Mr. Osborne a right of access to DNA evidence if he would swear to his innocence. But then Mr. Rosenstein refused to say whether the state would fight Mr. Osborne anyway if he tried to invoke that law.
Near the end of the argument in the case, District Attorney’s Office v. Osborne, No. 08-6, Justice John Paul Stevens summarized the state’s position: “The net result is that it is perfectly clear to me from the argument that you have not conceded that if he now files the paper” swearing to his innocence, “he will definitely get the DNA.”
Neal K. Katyal, representing the federal government, argued in support of Alaska’s position. One of his answers did not seem to satisfy Justice David H. Souter, who had asked whether the government could stop a prisoner’s lawyers from interviewing an incarcerated witness ready to swear that the prisoner was innocent.
“It depends on the circumstances of the hypothetical,” Mr. Katyal said, “and whether or not it would open up the floodgates, I guess, to other requests and so on.”
The justices were unusually engaged in the argument, and they twice kept advocates at the lectern after their time was up. But it was not at all clear where the court stood on the larger question of whether there is a constitutional right to post-conviction DNA testing or the more immediate one of whether this case was a good vehicle for deciding the question.
Mr. Neufeld, a founder of the Innocence Project at the Benjamin N. Cardozo School of Law, said the case did have one important distinction.
“This,” he said, “is the very first case litigated to our knowledge anywhere in the country where the prosecutor concedes” that a DNA test result could possibly be “absolutely slam-dunk dispositive of innocence, but doesn’t consent to it.”
There was also some reason to think that evidence would prove just the opposite, a possibility Mr. Neufeld left open.
“Look,” he said, “I wasn’t at the commission of the crime. I don’t have a videotape in my head.”
Mr. Osborne was convicted in 1994 of kidnapping and raping a prostitute in Anchorage.
In April, the United States Court of Appeals for the Ninth Circuit, in San Francisco, ordered prosecutors in Alaska to turn over the biological evidence in the case for more sophisticated DNA testing than had been used by the prosecution to implicate Mr. Osborne. His lawyer had decided not to pursue more discriminating DNA testing before Mr. Osborne’s trial, fearing the results might further incriminate him.
Mr. Osborne later confessed to the Alaska Board of Parole, which released him after 14 years. He has since been convicted of a home invasion. After he serves his sentence for that crime, he must finish the remainder of his 26-year rape sentence.
Justice Antonin Scalia said he was struck by how equivocal Mr. Osborne had been. Reading from a sworn statement Mr. Osborne had submitted to the Alaska state courts, Justice Scalia said: “ ‘I have no doubt whatsoever that retesting of the condom will prove once and for all time’ — and one expects to follow, ‘my innocence.’ That’s not what it says. ‘Will prove once and for all time either my guilt or innocence.’ ”
Mr. Osborne has said he confessed to the parole board in the hope of quicker release. Justice Breyer said that sort of confession, which parole boards often require, proved only that Mr. Osborne “doesn’t want to spend the rest of his life in prison.”
But Chief Justice John G. Roberts Jr. said the confession, made under oath, presented Mr. Osborne with a problem should he decide to swear he is innocent.
“He’s guilty of perjury one way or the other,” the chief justice said, “either before the parole board or in his assertions of actual innocence.”