Federal Evidence Review

No “extraordinary circumstances” were established where the state provided some materials for DNA testing, the testing on the available materials did not exculpate the plaintiff, and an accounting was provided for other materials which had been available at trial but were no longer available, in Bradley v. King, 556 F.3d 1225 (11th Cir. Feb. 3, 2009) (No. 07-12073)

DNA evidence can be important to establish guilt or innocence. In a recent case, an Eleventh Circuit majority considered an open issue: whether “a § 1983 plaintiff could, under some extraordinary circumstances, be entitled to post-conviction access to biological evidence for the purpose of performing DNA testing.” Bradley, 556 F.3d at 1228-29 (citing Grayson v. King, 460 F.3d 1328, 1339 (11th Cir. 2006)). The majority concluded that “extraordinary circumstances” had not been established. Bradley filed a petition for a writ of certiorari and for a stay of execution, which was denied by the Court on February 12, the day that Bradley was executed by the State of Alabama.

In the case, an Alabama death row inmate filed a Section 1983 action to obtain DNA testing evidence to support his claim of innocence. He received a capital sentence following his conviction for the 1983 rape, sodomy and murder of his twelve-year-old stepdaughter. He “requested the rape kit evidence from the victim’s autopsy consisting of the victim’s vaginal, rectal, and oral swabs, substance smears, and gastric juices; the victim’s pants; and hair evidence.” Bradley, 556 F.3d at 1227. The state advised that the rape kit and victim’s pants could not be located, but bedding items were available. After further litigation and on remand, the state identified evidence in its possession which was capable of DNA testing. The state also explained the efforts to locate the requested evidence that was no longer available. The district court allowed depositions and an affidavit of state officials concerning the inability to located the rape kit and victim’s pants. DNA testing of the available bedding materials identified genetic markers of the prisoner and victim.

After the district court found no due process violation, the inmate appealed. There was no violation under Brady v. Maryland, 373 U.S. 83 (1963) for withholding evidence, since “the evidence Bradley seeks is no longer available, he had a fair trial, evidence of his guilt was strong, it is highly unlikely that the evidence he seeks would be exculpatory, and he failed to show the evidence was material to his guilt or punishment.” Bradley, 556 F.3d at 1229. There was also no evidence that the state acted in bad faith in failing to preserve the evidence under Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (“unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law”).

The Eleventh Circuit majority panel affirmed. The plaintiff failed to show “extraordinary circumstances” warranting further access to DNA evidence. He received materials that were in the possession of the state. The DNA testing of the available evidence did not exculpate the plaintiff. The state provided an accounting for unavailable evidence, which had been available before trial, and there was no bad faith in failing to locate these items. As the circuit explained:

“The district court correctly applied Grayson in determining that there are no extraordinary circumstances in Bradley’s case entitling him to further postconviction access to DNA evidence. Although the rape kit results and the victim’s pants are now missing, these items were available prior to trial. Bradley’s postconviction attacks establish that his trial was fair and there was substantial nonbiological evidence of his guilt. Nor can Bradley show a reasonable probability that the result of the proceeding would have been different had the evidence been disclosed to him at trial. Unlike Grayson, Bradley has asserted a claim of actual innocence. Bradley’s claim is severely undermined by the DNA testing on bedding items performed in 2001, however, which establish that the victim’s DNA and Bradley’s DNA were commingled on a blanket taken from his home. Given these results and the other evidence introduced at trial, the district court correctly concluded that it was ‘highly unlikely’ the missing evidence he seeks to obtain would be exculpatory. Accordingly, Bradley has failed to show that his due process rights were violated under Brady.”

“Bradley has likewise not demonstrated a procedural due process violation under Mathews. The risk that he will be erroneously deprived of his potential liberty interest is small. All of his direct and collateral attacks on his conviction and sentence have proven unsuccessful and the post-conviction DNA testing on the bedding items leave little doubt as to his guilt. The value of additional DNA testing must also be weighed against the fact that the requested items, despite extensive searching, cannot be found. Finally, the state of Alabama and the victim’s family have a strong interest in enforcing a criminal judgment and sentence over twenty-five years old. See Jones v. Allen, 485 F.3d 635, 641 (11th Cir. 2007) (noting that every delay commutes a death sentence into a prison term).”

Bradley, 556 F.3d at 1230 (other citations omitted).

Finally, the circuit majority distinguished a recent case pending before the Supreme Court:

“The Supreme Court’s grant of certiorari in Osborne v. Dist. Attorney's Office for the Third Judicial Dist., 521 F.3d 1118 (9th Cir. 2008), does not alter our decision in this case. See Dist. Attorney's Office for the Third Judicial Dist. v. Osborne, ___ U.S. ___, 129 S. Ct. 488 (2008). The Ninth Circuit held that Osborne’s due process right prohibited the state from denying him reasonable access to readily available biological evidence for DNA testing in a § 1983 action. See Osborne, 521 F.3d at 1141-42. The state has not denied Bradley access to any available evidence, however. To the contrary, Appellees consented to DNA testing of all the evidence it could find and actively searched for any missing evidence. Thus, unlike Osborne (or Grayson, for that matter), Bradley was essentially granted the relief he requested. As the district court correctly concluded, Bradley ‘has received all the process to which he may be entitled and his claims are now due to be dismissed.’”

Bradley, 556 F.3d at 1229 (other citations omitted).

Circuit Judge Barkett specially concurred, noting that while he agreed that dismissal of the action was appropriate, “the majority’s discussion of Grayson ” did not have “any bearing on this case” since the plaintiff “prevailed" amd received "access to that evidence or an accounting for its absence.’” Bradley v. Pryor, 305 F.3d 1287, 1290 (11th Cir. 2002).

The Bradley case represents another example of the circumstances in which the courts may consider a request for DNA evidence to support a claim of innocence. In Bradley, the testing was conducted on available evidence and the state accounted for requested materials that could not be located.