Thats when McKithens Arent Fox attorneyspartner 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 McKithens 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 McKithens 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.
