« Libby's economic version of the trial penalty | Main | Cunningham fix moves forward in California »

March 13, 2007

A constitutional right to post-conviction DNA testing?

How Appealing has the highlights here of a notable Second Circuit ruling in McKithen v. Brown, No. 03-0168 (2d Cir. Mar. 13, 2007) (available here). Here is the court's official summary:

Appeal from a judgment of the United States District Court for the Eastern District of New York (Gleeson, J.), dismissing under Rule 12(b)(1) plaintiff's claim brought pursuant to 42 U.S.C. § 1983. Plaintiff asserts a post-conviction constitutional right of access to DNA testing which, he asserts, might exonerate him. The district court dismissed the suit, citing the Rooker-Feldman doctrine.  We hold (1) that the Rooker-Feldman doctrine does not apply to plaintiff's suit; (2) that plaintiff’s suit is not barred by the rule of Preiser v. Rodriguez, 411 U.S. 475 (1973), and Heck v. Humphrey, 512 U.S. 477 (1994); and (3) that defendant waived any possible defense of claim preclusion, and that it would be inappropriate for this Court to raise the defense sua sponte. We therefore vacate the district court's judgment and remand the case to that court, for its consideration in the first instance of whether there exists a constitutional right on the basis of which plaintiff might obtain his requested relief, and if such a right exists, whether, once the district court defines the contours of that right, the defense of issue preclusion might apply.

UPDATE:  Decision of the Day has more on McKithen here.

March 13, 2007 at 05:29 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference A constitutional right to post-conviction DNA testing?:

» CA2: constitutional right of access for DNA testing from Appellate Law
Since the First isn’t doing anything, the Blogosphere (and alert readers) are bussing about the Second Circuit’s decision in McKithen v. Brown, No. 03-0168 (2d Cir. Mar. 13, 2007). There, the Second Circuit holds that a 42 U.S.C § 1983 [Read More]

Tracked on Mar 13, 2007 6:31:14 PM


I think the Fourth Circuit dealt with this issue in a death case, Brian Cherrix. The evidence, surprise surprise, showed him to be guilty, and Cherrix was thereafter executed.

Posted by: federalist | Mar 13, 2007 10:06:59 PM

The case you are referring to is In re Braxton, 258 F.3d 250 (4th Cir. 2001). However, that was a garden-variety habeas case under 28 U.S.C. § 2254. Not a § 1983 case.

The Fourth Circuit only dealt with the warden’s somewhat absurd arguments that a preservation order regarding the evidence would cause the warden irreparable damage. You probably don’t care too much about the nerdier issues of appellate procedure, that the Fourth Circuit dealt with, but lawyers might be interested.

Whether he was ultimately executed or not (or even whether he was guilty or not) has nothing to do with this issue.

Posted by: S.cotus | Mar 13, 2007 11:22:04 PM

"Whether he was ultimately executed or not (or even whether he was guilty or not) has nothing to do with this issue."

It's not entirely beside the point to note that, in addition to exonerating innocent defendants, DNA testing also sometimes has the social benefit of increasing the amount of confidence in a guilty verdict. In the cited opinion, Judge Calabresi states that "Notably, DNA testing — with its capacity to exonerate defendants (or those wrongly convicted) to a practical certainty, and to identify the guilty — promises to render, in some cases, both sides of Blackstone’s maxim obsolete." p.3 n.3.

Posted by: | Mar 13, 2007 11:45:18 PM

S.cotus--I knew I could count on you.

In any event, I think that the prisoner probably needs to show a very strong likelihood that testing will help him before a court will issue an injunction ordering the state to test evidence--so the proof of his guilt does matter, as a practical matter. Besides, we cannot have federal courts becoming post-conviction evidence testers for each and every state inmate.

Posted by: federalist | Mar 14, 2007 12:40:25 AM


The reason everyone is so excited about this case is simply because of the scope of § 1983, not any right to “DNA testing.” It may very well be that the lower courts find, and a court of appeals affirms, a rule where such testing is only available under § 1983 where 1) a signed statement from a another person exists admitting that they committed the crime; 2) the defendant himself can show that he or she was doing something that poor people do not do at the time (e.g. at a posh restaurant); and 3) there exists a signed statement that they mistook the § 1983 plaintiff for a poor person, because he was “slumming.”

I know Rooker-Feldman and Heck are really nerdy issues, and not nearly as “cool” to talk about as 1) innocence; or 2) judicial activism. But, just because the issue is nerdy doesn’t make it off limits.

Posted by: S.cotus | Mar 14, 2007 7:07:45 AM

S.cotus, your view of this case is too cramped.

Posted by: rothmatisseko | Mar 14, 2007 12:36:53 PM

Can you tell me what “cramped” means, and how my view of it fits that description.

In the past, I have only heard people used “cramped” to describe a court’s reasoning when they didn’t like the outcome. For instance, since Ted Olsen wants to be able to pluck people from the street, anywhere in the world, and subject them to indefinite torture, he called Hamdan v. Rumsfeld “cramped.” (“The Hamdan decision represents an extremely cramped and unworkable interpretation of the expansive authorization that Congress gave the President in the AUMF.”)

As to the substance, I could see a court putting many strings on the DNA-testing “right.” For instance, they might demand “convincing” proof of innocence. After all, some might reason, there isn’t a due process right to freedom unless something is taken away from someone. Since someone has validly been convicted of a crime, they don’t have their “freedom.” Or, they might demand a showing that the government somehow deliberately withheld certain evidence.

On the other hand, they might adopt a much more lenient standard and hold, for example, that there must be a showing that only identity was an issue.

Posted by: S.couts | Mar 14, 2007 1:11:20 PM

Federal district court Judge Beistline, Anchorage Alaska, ruled in Osborne v. State of Alaska, that there is a federal due process right to post-conviction dna testing, limited to his case facts. The State of Alaska has appealed. They have filed their opening breif to the 9th Circ. the I/P out of NY, Colin Starger is doing the reply. So we could get a west coast ruling this summer.
the 9th ruled favorably as to heck et al for Osborne.

Posted by: randall cavanaugh-defense attorney Alaska | Mar 14, 2007 2:04:11 PM

Post opinion and/or briefs. Or email them to me and I can post them sco//removethis//tus@gmail.com

Posted by: S.couts | Mar 14, 2007 2:24:06 PM

I will see what the secretary can do to scan them in. Beistline's decision is fairly brief.
so that should not be a problem. The Osborne decision, the 9th cir., is cited in the recent 2nd Cir. decision.

Posted by: randall cavanaugh-defense attorney Alaska | Mar 14, 2007 10:22:25 PM

Scotus, I only meant that the ruling isn't limited to 1983 actions. The due process argument could very well be used in post-conviction or even at trial.

Posted by: rothmatisseko | Mar 17, 2007 2:22:08 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB