McKithen v. Brown

• Decision Date: 21 July 2008
• Docket Number: No. 02-CV-1670 (JG)(LB).,02-CV-1670 (JG)(LB).
• Citation: 565 F.Supp.2d 440
• Parties: Frank McKITHEN, Plaintiff, v. Richard BROWN, District Attorney, County of Queens, Defendant.
• Court: U.S. District Court — Eastern District of New York

565 F.Supp.2d 440

Frank McKITHEN, Plaintiff, v. Richard BROWN, District Attorney, County of Queens, Defendant.

No. 02-CV-1670 (JG)(LB).

United States District Court, E.D. New York.

July 21, 2008.

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Arent Fox LLP, by Allen G. Reiter, New York, NY, for Plaintiff.

Michael A. Cardozo, Corporation Counsel of the City of New York, by Karl Ashanti, Drake A. Colley, New York, NY, for Defendant.

MEMORANDUM AND ORDER

JOHN GLEESON, District Judge:

This case presents the question whether the United States Constitution requires that a convicted defendant be granted access to evidence for the purpose of DNA testing, an issue of first impression in this circuit. Frank McKithen is in prison for stabbing his wife Rose with a kitchen knife on August 21, 1992. McKithen wishes to subject the knife to DNA testing, which he contends will demonstrate that his wife, who survived, fabricated McKithen's involvement in the incident. After moving unsuccessfully for this relief under New York's post-conviction DNA testing statute, N.Y.Crim. Proc. Law § 440.30(1-a), McKithen brought this action under 42 U.S.C. § 1983, claiming that Queens County District Attorney Richard Brown has injured him in violation of the Due Process Clause of the Fourteenth Amendment by refusing to grant him access to the knife.

On March 27, 2003, I adopted Magistrate Judge Lois Bloom's report and recommendation and granted Brown's motion to dismiss McKithen's claim on procedural grounds. On March 13, 2007, the United States Court of Appeals for the Second Circuit remanded for a determination of the merits, specifically directing me to consider whether the Constitution protects a post-conviction right of access to evidence for DNA testing, and if so, what the contours of that right are and whether McKithen's claim that he is entitled to access to the knife is precluded by the state court's decision that he was not entitled to testing under § 440.30(1-a). On the parties' cross-motions for summary judgment,¹ 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 trial; that the issue of McKithen's entitlement to DNA testing is not precluded; and that McKithen is entitled to access the knife for the purpose of DNA testing. Accordingly, for the reasons stated below, McKithen's motion is granted and Brown's is denied.

BACKGROUND

A. The Offense Conduct

McKithen stands convicted of attempted murder in the second degree, intimidating a victim or witness in the first degree, reckless endangerment in the first degree, criminal possession of a weapon in the fourth degree, assault in the first degree, and resisting arrest based on a stabbing incident on August 21, 1992 and his subsequent arrest on September 1, 1992.

The government's evidence at trial established that on the morning of August 21, 1992, McKithen's wife Rose testified before a Queens County grand jury that on August 16, 1992, McKithen had menaced her with a firearm in their shared home at 150-18 Yates Road in Queens. At approximately 11:00 PM on August 21, 1992, Rose McKithen,² having returned from her grand jury appearance, was watching television with her friend Linda Jones in the living room of 150-18 Yates Road. McKithen climbed in a bedroom window and appeared in the living room. He argued with Rose McKithen and struck her with an open hand, and then retrieved a large kitchen knife from the cutlery drawer. Holding Rose McKithen at knife-point, McKithen ushered Jones out of the apartment.

After Jones was expelled from the apartment, Rose McKithen broke free of McKithen's grasp and attempted to crawl out a bedroom window. As she tried to flee, McKithen stabbed her once in the back and then immediately fled the apartment. When the police responded, they recovered a knife with a spot or two of blood on it, which Rose McKithen identified as the knife her husband had used to stab her. Emergency medical technicians responded to the scene and asked her who to contact in case of an emergency. She gave McKithen's name.

McKithen was arrested on September 1, 1992 and resisted arrest in circumstances not at issue here. After arresting him, McKithen's arresting officer asked him if he knew why he was being arrested, and McKithen responded, "Yes, I should have killed the bitch."

B. The Procedural History

1. Conviction, Sentence and Post-Conviction Proceedings Challenging Conviction and Sentence

McKithen was tried by jury in New York Supreme Court, Queens County. The government introduced a knife into evidence during its case. Rose McKithen identified the knife as the weapon McKithen had stabbed her with, and a police officer identified the knife as having been found on a table in Rose McKithen's bedroom. Two police officers testified that there may have been a small amount of blood on the knife at the time that it was recovered, but an officer wrapped it in a paper towel to prevent the blade from causing accidental injury, which had the effect of removing the blood. McKithen did not request that the knife be subject to fingerprint or DNA testing.

McKithen argued that his wife had fabricated his involvement in the incident and that she had actually been stabbed by her boyfriend. In support of this theory, he noted that Rose McKithen had given McKithen's name as an emergency contact. McKithen was convicted of attempted murder in the second degree, intimidating a victim or witness in the first degree, reckless endangerment in the first degree, criminal possession of a weapon in the fourth degree, assault in the first degree, and resisting arrest. On May 19, 1993, McKithen was sentenced as a second violent felony offender to consecutive terms of imprisonment of twelve and one-half to 25 years on the attempted murder conviction, eight to 16 years on the witness intimidation conviction, and two and one-half to five years on the reckless endangerment conviction. He was also sentenced to concurrent terms of imprisonment of seven to fourteen years on the assault conviction, one year on the weapon possession conviction, and one year on the resisting arrest conviction. His aggregate sentence was 23 to 46 years.

McKithen appealed his conviction, arguing that the charges related to his arrest should have been severed from the charges related to his stabbing; the prosecutor committed misconduct in summation; the evidence was insufficient to support the verdict convicting him of reckless endangerment; and his sentences on the attempted murder and witness intimidation convictions should have run concurrently. On November 13, 1995, the Appellate Division, Second Department affirmed his conviction but modified his sentence to run his attempted murder and witness intimidation convictions concurrently, resulting in an aggregate sentence of 15 to 30 years. People v. McKithen (McKithen I), 221 A.D.2d 476, 634 N.Y.S.2d 128, 129-30 (2d Dep't 1995). McKithen requested leave to appeal to the New York Court of Appeals, which denied his application on May 8, 1995. People v. McKithen (McKithen II), 88 N.Y.2d 881, 645 N.Y.S.2d 456, 668 N.E.2d 427 (1996).

On July 27, 1994, McKithen filed a pro se motion to set aside his sentence under N.Y.Crim. Proc. Law § 440.20, which was denied on September 8, 1994. On November 6, 1996, McKithen filed a pro se motion to vacate his conviction under N.Y.Crim. Proc. Law § 440.20, which was denied on February 10, 1997. On March 12, 1997, McKithen filed a pro se motion for leave to appeal the denial of his second § 440.20 motion. This application was denied by the Second Department on April 16, 1997.

2. Proceedings Seeking DNA Testing

On August 21, 2001, McKithen filed a pro se motion in the New York Supreme Court, Queens County, pursuant to N.Y.Crim. Proc. Law § 440.30(1-a), seeking court-ordered DNA testing of the knife to determine if Rose McKithen's blood was; on the knife, as well as testing for fingerprints. On November 8, 2001, the Queens Supreme Court denied his application, finding his request for fingerprint examination untimely, concluding that there was not a reasonable probability that the results of DNA testing would have resulted in a more favorable verdict, noting that McKithen did not dispute that Rose McKithen was stabbed, and concluding that the presence or absence of her blood on the knife would have little or no probative value in determining whether her wounds were inflicted by McKithen. People v. McKithen (McKithen III), No. 3964/92 (N.Y. Sup.Ct, Queens County Nov. 8, 2001). On December 13, 2001, McKithen moved for leave to appeal to the Second Department, which denied his application on February 13, 2002.

On March 1, 2002, McKithen commenced this action before me, filing a pro se complaint under 42 U.S.C. § 1983, seeking access to the knife for the purpose of DNA testing. In his complaint, McKithen alleged that Rose McKithen's blood is not on the knife, claiming that this finding would establish that the knife introduced as evidence at trial was not the knife used to stab Rose McKithen, and that this would in turn demonstrate that he did not stab her.³ McKithen argued that Brown's refusal to produce the knife for testing (1) deprived him of due process of law; (2) deprived him of meaningful access to the courts; (3) deprived him of the opportunity to make a conclusive showing of actual innocence in violation of the Eighth Amendment; and (4) deprived him of his right to present evidence of his innocence in violation of the Confrontation Clause.

Brown moved to dismiss on August 2, 2002, claiming that (1) the Rooker-Feldman doctrine deprived me of subject matter jurisdiction to hear this action; (2) the Queens Supreme Court's denial of McKithen's § 440.30(1-a) motion precluded McKithen from litigating...