Arent Fox



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IIn 1993 Frank McKithen of Queens, New York, was convicted and imprisoned for stabbing his estranged wife with a kitchen knife. For the past 17 years, McKithen has been challenging his conviction for attempted murder (his wife survived), believing that DNA testing of the knife would prove his innocence. The Am Law Pro Bono 100Not until July 2008 did he make any headway.

That’s when McKithen’s Arent Fox attorneys—partner Allen Reiter in New York and associates Matthew Trokenheim in New York and Aswathi Zachariah in Washington, D.C.—won a ruling holding that the U.S. Constitution protects a postconviction right of access to DNA evidence, the first time a court in the Second Circuit has upheld such a right. Federal district court judge John Gleeson in the Eastern District of New York ruled in McKithen’s favor, writing that the due process clause of the Constitution “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.”

Reiter first heard of McKithen’s case through The Innocence Project, a national nonprofit dedicated to overturning wrongful convictions through DNA testing. McKithen had filed a pro se motion for access to the DNA evidence in August 2001 under a New York statute allowing postconviction DNA access. That motion was first denied on the grounds that he had not shown a “reasonable probability” that obtaining DNA evidence would change the underlying conviction; a second motion was dismissed on a habeas corpus procedural issue. On appeal, the U.S. Court of Appeals for the Second Circuit reversed the dismissal and remanded the case back to Judge Gleeson in 2007. Reiter, a former assistant district attorney who now specializes in complex commercial litigation, volunteered for the case after it was sent back to the district court.

The Arent Fox attorneys focused their arguments on a 1963 U.S. Supreme Court decision, Brady v. Maryland, which held that withholding evidence violates the due process clause of the Fourteenth Amendment. They also cited a 2004 decision by the U.S. Court of Appeals for the Fourth Circuit involving the right to petition government for relief. Attorneys for the city of New York argued that the Constitution does not support the right to postconviction access to DNA testing, and that the original New York statute adequately protected McKithen’s rights, if any. But Arent Fox lawyers argued that the statute’s standard for testing, which had originally prevented McKithen from gaining access, was set too high: The statute should require a “reasonable possibility” that a conviction would be overturned on the basis of DNA evidence, not a “probability.” Judge Gleeson granted McKithen’s motion for summary judgment.

In June, however, the Supreme Court ruled that criminal defendants have no constitutional right to DNA evidence post-conviction. The city of New York is expected to appeal Judge Gleeson’s motion. At press time, Reiter said that his team was still considering how to proceed in light of the Supreme Court ruling.

Reiter says DNA testing is a fundamental tool in the criminal justice system because of its accuracy and power to prove guilt or innocence. “Not only has postconviction DNA access exonerated individuals, it’s pointed the finger at people who actually committed the crime,” Reiter says. “Our job [is] to do justice, it [is]n’t to get a conviction.”

—Vivian Yee | July 1, 2009

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