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    Arent Fox 's Allen Reiter Wins Historic Victory as Federal Judge in NY Rules US Constitution Entitles Convicted Offender to DNA Testing

    July 22, 2008

    NEW YORK CITYJULY 22, 2008 – In a case of first impression, a federal judge in New York City July 21 held that convicted offenders are entitled under the US Constitution to be granted access to physical evidence for the purpose of DNA testing if the test results would cast doubt on the defendant’s conviction. In McKithen v. Brown, 02-CV-1670 (JG) LB), Judge John Gleeson of the US District Court for the Eastern District of New York wrote, “I conclude that the Due Process Clause of the Fourteenth Amendment grants a convicted offender access to physical evidence for the purpose of DNA testing if it can be performed with negligible cost to the state and exculpatory results would undermine confidence in the outcome of the trial.”

    As a result of the court’s decision, the defendant in the case, who was convicted of stabbing his wife with a kitchen knife in 1992, will be granted access to the knife for DNA testing. The defendant, Frank McKithen, claims that subjecting the knife to DNA testing will prove that his wife, who survived the attack, fabricated McKithen’s involvement in the incident.

    Judge Gleeson’s decision marks the first time that a court in the Second Circuit has found that the US Constitution protects a post-conviction right of access to evidence for DNA testing.

    “This is a major victory not only for Mr. McKithen, but for our entire system of criminal justice,” said McKithen’s pro bono attorney, Allen G. Reiter, a partner with the law firm Arent Fox LLP in Manhattan. “By agreeing with us in recognizing that the Constitution demands that convicted individuals be granted access to physical evidence that can exonerate them and prove their innocence of the crimes for which they have been wrongly convicted, the court today took a major step in ensuring the fairness of our legal system.”

    Lawyers for the City of New York, representing the Queens County District Attorney, had opposed McKithen’s motion for DNA testing. In rejecting the City’s argument, Judge Gleeson wrote, “I am aware of no authority disputing the claim that a prosecutor has a duty to avoid convicting innocent defendants … I would conclude that if a prosecutor refuses a prisoner’s specific request for access to physical evidence for DNA testing, in circumstances where the testing could be performed at negligible cost to the state and the results of testing, if exculpatory, would prove beyond a reasonable doubt that the prisoner did not commit the crime for which he is incarcerated, the prosecutor exhibits deliberate indifference to the possibility that the prisoner is actually innocent.”

    Arent Fox’s Reiter said the next step for his client is to test the knife. The Innocence Project, a national litigation and public policy organization dedicated to exonerating wrongfully convicted people through DNA testing, has agreed to pay for and coordinate the testing. Once testing is completed, Mr. McKithen will weigh the options available to him, which include using the results in parole hearings, seeking executive clemency, or trying to overturn his conviction.