No constitutional right to state's evidence for DNA testing

Does the U.S. Constitution allow convicted inmates the right to access the State's evidence for DNA testing? The answer used to be Yes. These days, the answer is No.

The case is McKithen v. Brown, decided on November 19. The inmate was convicted of various bad acts, including assault with a knife against his wife. Post-conviction, he wanted to analyze the blood from the knife to show it was not his wife's. This would clear McKithen. The State would not provide that evidence and the State court told him to take a hike. He did, to the Federal courthouse, suing under Section 1983, claiming that denial of this evidence violated the Due Process Clause and other constitutional provisions.

In 2008, Judge Gleeson (Eastern District of New York) ruled in McKithen's favor, "holding that [he] had a procedural due process right to perform forensic DNA testing on the physical evidence the government introduced against him at trial." This stems from the right of meaningful access to the state's mechanisms for post-conviction relief, triggering the state's affirmative duty to disclose evidence for DNA testing. The district court also ruled in his favor on substantive due process grounds. Makes sense, right? Aren't people being released from jail left and right on the strength of DNA testing?

But that ruling from the district court was so 2008, as they say. In 2009, the U.S. Supreme Court took up a similar issue, in District Attorney's Office v. Osborne, 129 S.Ct. 2308 (2009), holding that Osborne was not entitled to DNA evidence in post-conviction proceedings under the Due Process Clause. That ruling "succeeds in toppling the district court's determination that prisoners retain a residual liberty interest in meaningful access to state clemency mechanisms," the Second Circuit (Cabranes, Parker and Underhill [D.J.], rules.

While the Supreme Court did say that "a prisoner may retain a state-created 'liberty interest in demonstrating his innocence with new evidence under state law,'" this is a limited right and "does not entitle a prisoner to all exculpatory evidence, the kind of discovery evidence that a defendant would be entitled to before trial." Convicts only had a limited interest in post-conviction relief, according to the Supreme Court. McKithen argues that CPL sec. 440 (which provides for certain post-conviction DNA testing) must, consistent with the Constitution, allow him access to prove his innocence in state court. This argument will not fly in the wake of the Supreme Court's ruling in Osborne. The Second Circuit holds:

The Osborne Court was clear that the lower federal courts are to defer to the judgment of state legislatures concerning the process due prisoners seeking evidence for their state court post-conviction actions. ... McKithen cannot demonstrate that New York's procedures sink to that level of fundamental inadequacy, and section 440[], even when understood not to require state courts to assume that the DNA testing sought will produce exculpatory results, cannot be said to conflict with the 'traditions and conscience of our people' or 'any recognized principle of fundamental fairness.'"

In other words, we defer to New York's judgment on these issues. The favorable ruling from Eastern District of New York is now vacated on authority of the Supreme Court.