September 11, 2008
Ken Strutin-New York Law Journal-New York, NY
Discoveries and advances in forensic science, most notably DNA profiling, have given new life to post-conviction claims of actual innocence. The first hurdle is getting access to or just locating the evidence to be examined, then applying the latest testing protocols. But these are only preliminary steps to a motion that challenges the accuracy and fairness of a conviction.
Recognizing the powerful reality of exonerations through DNA testing, many states have enacted laws to allow access in limited circumstances. Meanwhile, litigants in federal courts are helping to shape a broad-based constitutional right to access and testing, which may have far-reaching implications.
The thrust of recent exonerations has been fueled by DNA testing. And the right to access, analyze and present re-evaluated (or freshly examined) genetic evidence from closed cases has been in the foreground of actual innocence claims. Increasing numbers of people freed from prison, serving on average 12 years, have spurred 43 states and the federal government to enact laws permitting post-conviction DNA testing.[FOOTNOTE 1] But these laws are not uniform and obstacles remain, leaving many to seek a constitutionally based avenue of relief. In its recently issued report, "Improving Access to Post-Conviction DNA Testing: A Policy Review," The Justice Project outlined six remedial measures for legislatures to implement to assure speedy and fair resolution of DNA-based innocence claims: (1) long-term preservation of biological evidence; (2) access to DNA testing regardless of the procedural route of the conviction; (3) granting petitions when testing will yield new material evidence suggesting the "reasonable probability" of innocence or mitigation; (4) availability to defendants of reliable forensic testing facilities; (5) appointment of counsel and providing funds for indigent petitioners to pay for testing; and (6) standardized post-testing administration to expedite release of the innocent.
These recommendations highlight the issues underlying gateway challenges to wrongful convictions. A convicted person must first have a right to examine and test the evidence before filing a habeas corpus petition or some other application. And what state laws do not allow or narrowly construe, federal constitutional jurisprudence may provide.
FEDERAL RIGHTS AND STATE LAWS
In 1992, Frank McKithen was charged with stabbing his estranged wife as she fled through a bedroom window.[FOOTNOTE 2] The knife identified by the victim was introduced at trial, but no forensic DNA or fingerprint analysis had been done. The jury convicted McKithen of attempted murder and related charges, which were affirmed on appeal.
Seven years after his conviction, McKithen filed a motion to have the knife tested for DNA evidence. His theory was that his ex-wife's boyfriend had committed the stabbing.
Unfortunately, the Queens County Supreme Court disagreed and denied the motion.
New York Criminal Procedure Law §440.30 (1-a)(a) required a finding that if DNA test results had been admitted at trial, there was a "reasonable probability" the verdict would have been "more favorable" to the defendant.[FOOTNOTE 3] The trial court did not believe the results of a forensic DNA examination would have had a "reasonable probability" of changing the outcome. A year later, McKithen went to federal court and brought a 42 U.S.C. §1983 action. He claimed the Queens district attorney violated his federal constitutional right to post-conviction DNA testing and asked for an injunction.
The judge ruled the action was barred by the Rooker-Feldman doctrine because the federal issues had been decided in the state post-conviction proceeding.
On appeal, the U.S. Court of Appeals for the Second Circuit concluded that the district court did have jurisdiction to hear the case and §1983, rather than habeas corpus, was the proper vehicle. However, before the issue preclusion problem could be resolved, the district court had to decide whether there was a federal constitutional right to post-conviction DNA testing.
On remand, Eastern District Judge John Gleeson made an important, fundamental distinction between access and outcome.[FOOTNOTE 4] The right to DNA testing was a right of access; the results would have significance for later proceedings, such as habeas corpus or clemency. The focus of Criminal Procedure Law 440.30(1-a) was relevance of the evidence and likelihood or probability that it would exculpate the petitioner. The judge found that "New York Courts do not assume that the test result will be exculpatory and then determine whether the results would be sufficient to raise a reasonable probability of a different outcome. Rather, they assess whether there is a reasonable probability that the test result will be both exculpatory and sufficiently relevant to cause a different outcome."
In some cases, there was practically a presumption in favor of guilt based on the trial evidence compelling state courts to speculate that the outcome of DNA testing would not be favorable. This premise has been undermined by studies of DNA exonerees. And Gleeson concluded that rather than guess, "[a] far more accurate way to determine the result of DNA testing is to conduct the testing."
In Wade v. Brady, 460 F.Supp. 226, 241 (D. Mass. 2006), an earlier decision cited in the McKithen opinion, Judge Nancy Gertner observed that in a §1983 claim whether the defendant "appears guilty" without DNA evidence had little bearing on the right to access and the ultimate determination of its exculpatory value.
In McKithen, Judge Gleeson found that where a clemency system existed that can undo a conviction based on actual innocence, and where testing can be done without overburdening the state's resources, a convicted person had the right to access physical biological evidence for DNA testing. In addition, it was required that the government possessed the genetic material, the testing would not be duplicative, an exculpatory outcome was presumed, and those results would undermine confidence in the verdict.
DNA profiling came into its own as a forensic tool in the 1980s. Since then the methods of analysis have changed and improved from Restriction Fragment Length Polymorphism to Polymerase Chain Reaction to Short Tandem Repeat technology and specialized testing using Mitochondrial DNA and Y-Chromosome Analysis.[FOOTNOTE 5] The lesson is that with time, testing methods become more exacting and discriminating, shining a light in cases where tests were never done, results relied on out-dated methods or were done improperly.
In Osborne v. District Attorney's Office, 521 F.3d 1118 (9th Cir. 2008), the petitioner, William Osborne, brought a §1983 action asking for access to semen from a used condom and two hairs that were central to his 1994 conviction for kidnapping and sexual assault. At the time, the state lab used DQ Alpha relying on information found at a single locus, comparable in a sense to ABO blood typing. He planned to test the evidence with STR and mtDNA, methods not available at the time of his trial.
After a thorough analysis of post-conviction Brady rights, the court highlighted the important distinction between state and federal review. The state court proceedings focused on the condition of the evidence at the time of trial, and whether the record raised questions as to its integrity. In a §1983 action, the federal court took a holistic approach considering the viability of actual innocence based on new evidence, which might undermine confidence in the original verdict. As in McKithen, the state court's conclusion did not preclude federal review.
The 9th Circuit reasoned that the state's denial of access to biological evidence for DNA testing violated Osborne's due process rights. And the holding was based on the fact that the genetic evidence was used to support his conviction, new techniques had come into existence since the trial, and the results would be material for post-conviction challenges.
In another recent decision, Breest v. Attorney General for New Hampshire, 2008 U.S. Dist. LEXIS 4033 (D.N.H. 2008), a federal court in New Hampshire clearly articulated the issues and rights implicated when technology advances a DNA innocence claim.
More than 30 years ago, Robert Breest had been convicted in state court of murdering a woman. For the last eight years he had been asking for definitive DNA testing of material from under the victim's fingernails that went to the identity of the attacker.
Early tests came back inconclusive or could not exclude Breest. Critical of those test results, he challenged them as flawed and unreliable. Finally, he asked the state court to order new analyses that were more probative and discriminating. The court denied his application because it did not find that his reasons for challenging the accuracy of the earlier results satisfied the requirements under the state statute.
In his §1983 suit, Breest asked the court to enjoin the New Hampshire attorney general to release biological material from his case for the most advanced protocol available. The federal judge believed the state Legislature intended to allow access to genetic material "when evolving technology offers a potentially meaningful and exculpatory result."
Finding that "finality falls well below truth on the scale of relative values," combined with the negligible administrative burden on the state, the judge decided that there was a constitutional right to access based on the Fifth and Fourteenth amendments.
In the court's opinion, the scope of that right still had to be defined. And in light of the unconsidered claims raised in these §1983 actions, there are other constitutional foundations that need to be explored, for example, the right to confrontation, compulsory process and prohibition against cruel and unusual punishment.
[FOOTNOTE 6] BEYOND DNA
Genetic material is not the only source of potentially exculpatory evidence. Four years ago, Virginia enacted Va. Code Ann. 19.2-327.10 et seq. allowing post-conviction challenges based on nonbiological evidence.[FOOTNOTE 7] The result is the recent decision in Copeland v. Commonwealth, 2008 Va. App. LEXIS 381 (Va. Ct. App. Aug. 12, 2008) granting the first "Writ of Actual Innocence."
Darrell Copeland had been charged with illegal possession of a semiautomatic pistol and convicted after trial. The gun was not introduced into evidence, instead the prosecution relied on the trooper's expertise in firearms identification. A short time after the verdict, the Virginia Department of Forensic Science issued a certificate of analysis that concluded the weapon, a gas gun, did not fall within the definition of a "firearm" under state law.
Copeland filed a petition for "actual innocence" and together with support from the attorney general sought relief from the court. The writ was granted, the conviction vacated and his record expunged.
Since the Virginia law concerning nonbiological evidence was enacted in 2004 over 100 petitions have been filed.[FOOTNOTE 8]
Prompted by earlier exonerations, the Virginia Department of Forensic Science continues to work on a project started three years ago reviewing DNA evidence in hundreds of decades-old cases.
[FOOTNOTE 9] The next step for the state is to determine how to manage the information they uncover.
[FOOTNOTE 10] CONCLUSION
The right to access potentially exculpatory or mitigating evidence for re-examination ought to be as fundamental as the Brady discovery rule, proof beyond a reasonable doubt and the presumption of innocence.
Cases of exoneration based on DNA testing have illustrated the dangers of misidentifications, false confessions and unreliable evidence. Viewed differently, in the post-conviction setting there is a benefit to resurrecting the "presumption" of innocence in evaluating requests for bringing new technologies to bear on old evidence.
Recognizing a right to raise claims of factual innocence after conviction and providing the means to uncover them are essential to our system of justice. As Judge Gertner recognized in Wade, new DNA tests have already changed the "due process calculus" and moved the boundary line defining the "limits of human fallibility." Improvements in DNA analysis as well as other forensic technologies, along with advances in scientific knowledge, are compelling deeper scrutiny of post-conviction innocence claims and fair trial challenges.