Federal Evidence Review

A district court rules that First Amendment Petition and Due Process Clauses entitle prisoner to access evidence for DNA testing, in McKithen v. Brown, 565 F.Supp.2d 440 (E.D. N.Y. July 21, 2008) (No. 02cv1670).

Does the Due Process Clause of the Fourteenth Amendment allow a state court prisoner access to evidence for DNA testing? A recent Eastern District of New York ruling answers this question in the affirmative.

Defendant McKithen was convicted in state court for committing attempted murder by stabbing his estranged wife with a knife, intimidating a victim or witness, reckless endangerment, criminal possession of a weapon, assault, and resisting arrest. After his request for DNA testing was denied under a state law, he filed a civil rights action claiming DNA testing may exonerate him since he asserted his wife had tried to frame him. The district court initially dismissed the complaint for failing to state a claim on which relief could be granted and other related grounds.

In March 2007, the Second Circuit reversed the dismissal of the complaint and remanded the case to the Eastern District of New York to decide the issue in the first instance. See McKithen v. Brown, 481 F.3d 89, 93 (2d Cir. 2007), cert. denied sub nom. Brown v. McKithen, 128 S. Ct. 1218 (2008). The circuit noted the issues was limited to whether the prisoner should be entitled to “access to, and perhaps testing of, biological evidence already in the state’s possession,” and not to compel the state to conduct the testing or “challenge the state’s procedures for the collection and storage of biological evidence.” McKithen, 481 F.3d at 108.

On remand, in an 89-page opinion, District Court Judge John Gleeson concluded the prisoner had a right of access grounded in the First Amendment Petition Clause (securing the right to “petition the Government for a redress of grievances” and applied to the states through the Fourteenth Amendment) and Fourteenth Amendment Due Process Clause. The court held:

“Our legal system continues to grapple with the questions of which avenues of relief remain open to those advancing claims that they are wrongfully convicted. In some states, as in New York, there are statutory mechanisms to set aside a conviction based on newly discovered evidence. It is unclear whether there is a constitutional right to do so. The remaining resort for the innocent convicted is to avail themselves of the opportunity to petition for clemency in whatever form the state has authorized. States may debate the value of expanding or contracting any of these avenues; in light of the tremendous probative power of DNA evidence, it may be wise to strike a different balance between accuracy and finality in cases where it is available. The proper avenues for relief are matters for legislative judgment. The Petition Clause, however, secures a right of meaningful access to whatever avenues remain, and the Due Process Clause confers a procedural right of access to evidence for DNA testing, if the testing can be accomplished at little cost and exculpatory results would undermine confidence in the outcome of trial…. McKithen is entitled to an injunction directing Brown to provide him access to the knife for the purpose of DNA testing on the condition that McKithen abide by all necessary procedures to preserve its integrity as evidence and pay all costs associated with the testing.”

With the state expected to appeal, the Second Circuit is now expected to get a chance to address this issue along with the contours of any right that may be recognized.