Newton v. City of N.Y.
| Decision Date | 26 February 2015 |
| Docket Number | Docket No. 11–2610–cv. |
| Parties | Alan NEWTON, Plaintiff–Appellant, v. CITY OF NEW YORK, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
OPINION TEXT STARTS HERE
John Francis Schutty, III, Law Office of John F. Schutty, P.C., New York, NY; David T. Goldberg, Donahue & Goldberg, LLP, New York, NY; Eric J. Hecker, Cuti Hecker Wang LLP, New York, NY, for Plaintiff–Appellant.
Drake A. Colley, Edward F.X. Hart, Arthur G. Larkin, for Michael A. Cardozo, Corporation Counsel for the City of New York, New York, NY, for Defendant–Appellee.
James W. Quinn, Karin S. Portlock, Devin M. Cain, Weil, Gotshal & Manges LLP, New York, NY; Keith A. Findley, Innocence Network, University of Wisconsin Law School, Madison, WI, for amicus curiae The Innocence Network.
Andrew H. Schapiro, Molly A. Karlin, Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, for amici curiae Evidence–Management Professionals Bruce Adams, Kolene Dean, Ron K. Peterson, John San Agustin, John Vasquez.
Before: LYNCH, LOHIER, and DRONEY, Circuit Judges.
Nearly thirty years ago, Alan Newton was wrongly convicted of a crime he didn't commit. He served over twenty years in prison. Had he been given access to exonerating DNA evidence that the City of New York long misplaced and mishandled, Newton very likely would have been a free man years earlier. Newton and his attorneys procured his freedom, and a New York State court vacated his conviction, only after countless efforts to access that evidence finally came to fruition in 2006. Once freed, Newton sued the City and various officials in the New York City Police Department (“NYPD”), claiming that the City's evidence management system was inadequate and had deprived him of his rights to due process and access to the courts in violation of the Fourteenth and First Amendments, respectively. Newton prevailed in a federal jury trial in the United States District Court for the Southern District of New York on these constitutional claims against the City, but the District Court set aside the verdict based on our decision in McKithen v. Brown, 626 F.3d 143 (2d Cir.2010).
We consider two primary issues on appeal. First, does New York law provide a convicted prisoner a liberty interest in demonstrating his innocence with newly available DNA evidence? Second, if so, does the Due Process Clause of the Fourteenth Amendment entitle such a prisoner to reasonable procedures that permit him to vindicate that liberty interest? McKithen answers neither of these questions; District Attorney's Office for the Third Judicial District v. Osborne, 557 U.S. 52, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009), requires that we answer both in the affirmative. We therefore vacate and remand with instructions to reinstate the jury verdict with respect to Newton's Fourteenth Amendment claim and to reconsider Newton's First Amendment claim in light of this opinion.
On June 23, 1984, a woman, V.J., was assaulted, raped, and robbed after leaving a convenience store in the Bronx. V.J. lost her left eye and suffered four broken ribs. She described her attacker to a police detective as a black male who identified himself as “Willie,” approximately five feet, nine inches tall, from twenty-five to twenty-seven years old, with a moustache and short, neat afro. The NYPD collected a rape kit from V.J. that contained pubic and head hair, three cotton swabs, and four microscope slides. Based on photo arrays and later an in-person line-up, V.J. identified Newton as her assailant. A store clerk, too, identified Newton from a photo array and a line-up.
In May 1985 a Bronx County jury convicted Newton of rape, robbery, and assault based on eyewitness testimony, including the store clerk's and V.J.'s identification of Newton as her attacker. Newton was sentenced to concurrent prison terms of eight and one-third to twenty-five years for each of the rape and robbery charges and a consecutive term of five to fifteen years for the assault. The rape kit was not tested for DNA evidence prior to Newton's trial.1
In 1988 Newton moved for an order authorizing an expert to inspect the rape kit and conduct forensic tests to permit him to move to set aside his verdict pursuant to New York Criminal Procedure Law Section 440.10. 2 The New York State Supreme Court granted Newton's motion and ordered the Bronx County District Attorney to arrange to deliver the DNA sample to the City's Office of the Chief Medical Examiner, where Newton's expert could supervise testing. The District Attorney's Office retrieved the rape kit from the NYPD's Property Clerk Division (“PCD”) and delivered it to the Office of the Chief Medical Examiner, which reported that the sample contained no testable spermatozoa.
Six years later, in 1994, the New York State legislature enacted New York Criminal Procedure Law Section 440.30(1–a), which permits a defendant to seek testing of DNA evidence in order to vacate his conviction as follows:
[W]here the defendant's motion requests the performance of a forensic DNA test on specified evidence, and upon the court's determination that any evidence containing deoxyribonucleic acid (“DNA”) was secured in connection with the trial resulting in the judgment, the court shall grant the application for forensic DNA testing of such evidence upon its determination that if a DNA test had been conducted on such evidence, and if the results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant.
N.Y.Crim. Proc. Law § 440.30(1–a) (McKinney 1994). Shortly after Section 440.30(1–a) was enacted, Newton filed a pro se motion in State court seeking DNA testing of the rape kit on the ground that technological advances since 1988 had enabled scientists to test samples they had previously deemed untestable. In opposing the motion, the District Attorney's Office responded that its extensive investigation had revealed that the physical evidence was never returned after the 1988 analysis and that the rape kit could not be found at the District Attorney's Office, the PCD, or the Office of the Chief Medical Examiner. The State court denied Newton's motion.
In 1995 Newton filed a habeas corpus petition under 28 U.S.C. § 2254 in the Southern District of New York. In the course of the habeas proceeding, and in response to Newton's request in that proceeding that the City produce the rape kit for testing, the City informed Newton and the court that the kit “could not ... be located.” Joint App'x 3316. Other than V.J.'s clothes, which the City was able to find as part of its response to Newton's petition, little else appears to have come of Newton's habeas proceeding. And so, in 1998, Newton again sought DNA testing of the rape kit and other physical evidence from State court. Citing conversations with the PCD, the District Attorney's Office reaffirmed that the rape kit could not be located and opposed the motion. As part of the government's opposition, an NYPD Sergeant explained that the voucher describing the location of the rape kit was not in its last listed location and that the kit “must have been destroyed.” Joint App'x 2779. The Sergeant elaborated that the voucher was probably destroyed, either because a 1995 fire at the Property Clerk's Office had destroyed several files or because the Property Clerk's Office had a practice of destroying inactive records after six years. Although the State court granted Newton's motion insofar as he sought DNA testing of V.J.'s clothes, which the police had found, it denied his motion as to the rape kit.
In 2005 Newton, through counsel, asked an Assistant District Attorney (“ADA”) who was then Chief of the Sex Crimes Bureau of the Bronx County District Attorney's Office and who had previously not been directly responsible for handling Newton's case whether the PCD would search once more for the rape kit. Attaching a copy of the voucher that had previously been reported lost, the ADA asked Inspector Jack Trabitz at the PCD to retrieve the rape kit. 3 Based on the barrel number for the rape kit that appeared on the voucher, the PCD was able to find the rape kit in a barrel located in the PCD's Pearson Place Warehouse in Queens.
In June 2006 the Office of the Chief Medical Examiner concluded that the DNA profile derived from the rape kit did not match Newton's DNA profile. Within a month, Newton and the District Attorney's Office jointly moved to vacate his conviction. The next day, the New York State Supreme Court vacated Newton's conviction pursuant to New York Criminal Procedure Law Section 440.10(1)(g). By this time, Newton had been incarcerated for more than twenty years. He had been seeking the evidence for the renewed testing that exonerated him—and had been repeatedly told that it no longer existed and could not be 20 found—for over a decade.
Newton was immediately released from prison and filed his lawsuit a year later. His complaint asserted twenty-one causes of action against the City and individual defendants. As relevant to this appeal, Newton alleged that the City's evidence management system “deprive[d] [him] of important and well established rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution,” as well as his right to access to the courts under the First Amendment. In October 2009 the District Court dismissed his constitutional claims against the individual defendants so that only common law claims remained against some of them.
Relying on Osborne, however, the District Court allowed Newton to continue his claim against the City for violating his due process rights. 4 In Osborne, the Supreme Court ruled that an Alaska statute that permitted a prisoner to challenge his conviction when newly discovered...
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