Federal judge rules that state law prohibiting post-conviction access to DNA testing violates due process
Clients Grier, Jr., Emmitt
In the first case to find a constitutional right to DNA testing since the Supreme Court clarified this developing area of the law, a federal judge has held that Pennsylvania's post-conviction DNA testing procedures violated the Due Process Clause and that testing should be ordered to determine whether Jones Day client Emmitt Grier was wrongly convicted of rape in 2000.
Mr. Grier was tried and convicted of rape in 2000 in Erie County, Pennsylvania. DNA evidence from the crime scene was collected by investigators, and remains in the custody of the Erie County District Attorney to this day, but has never been tested. Mr. Grier has been seeking the post-conviction production of that evidence for testing since 2002, and his initial requests in state courts were denied under Pennsylvania's "confession-bar" rule, under which persons who confessed to the crime pre-conviction have no right to obtain untested DNA evidence post-conviction. Of the forty-four states with post-conviction DNA access laws, no other state has adopted this unique limitation. Mr. Grier then brought a § 1983 civil rights action, pro se, in the Western District of Pennsylvania, contending that the state rule offended his right to due process.
The district court initially dismissed that action because, in its view, success would "necessarily" impugn Mr. Grier's conviction or shorten his sentence, and thus could only be brought in habeas under Heck v. Humphrey, 512 U.S. 477 (1994). The ruling implicated what had been a split between the federal courts of appeal on this issue, and the Third Circuit appointed Jones Day to represent Mr. Grier as he challenged whether his claim was cognizable under § 1983 or was barred under the "Heck rule."
While Mr. Grier's appeal was pending, the United States Supreme Court granted certiorari to address that same issue, and others, in District Attorneys' Office for the Third Judicial District v. Osborne, 129 S. Ct. 2308 (2009). Jones Day moved to stay Mr. Grier's appeal in light of Osborne, and, working with the Innocence Project, prepared one of the lead amicus briefs to the Supreme Court in Osborne, which expressed the views of Janet Reno and other current and former prosecutors that federal due process created a limited right to post-conviction DNA testing. While the Prosecutors' amicus brief was copiously cited in Justice Steven's four-justice dissent, the Supreme Court ultimately decided the case against Mr. Osborne on the merits of his claim. However, it left unanswered the threshold question of whether the "Heck rule" barred claims like Mr. Grier's.
Returning to the Third Circuit, Mr. Grier's Jones Day attorneys urged the court to hold that the "Heck rule" does not bar post-conviction DNA access actions filed under § 1983, and that the majority decision in Osborne, while denying a substantive due process right to post-conviction DNA testing, confirmed that a procedural due process claim was still viable. Recognizing that the issue was one of first impression for the Third Circuit, the panel (Fisher, Hardiman, and Van Antwerpen) agreed on both counts. In a unanimous, precedential opinion by Judge Van Antwerpen, the court first held "that in the narrow circumstance where a prisoner files a § 1983 claim to request access to evidence for DNA testing, that claim is not barred by the principles outlined in Heck." While not deciding "whether [Mr. Grier's] constitutional rights have been violated," the Third Circuit "remand[ed] th[e] case to the District Court to determine whether Grier's procedural due process rights, when considered within the framework of Pennsylvania's procedures for post-conviction relief, were violated." Grier v. Klem, 591 F.3d 672 (3d Cir. 2010).
Jones Day continued to represent Mr. Grier on remand to the Western District of Pennsylvania, and the parties filed cross motions for summary judgment in February 2011, which were argued before Magistrate Judge Susan Paradise Baxter in Erie, Pa, on May 18, 2011. On September 19, Judge Baxter agreed with Mr. Grier that "the state court's use of Grier's confession -- a confession he immediately and consistently repudiated -- as an automatic bar to deny access to DNA testing was fundamentally unfair." Slip Op. at 17, Grier v. Klem, No. 05-05 (W.D. Pa. Sept. 19, 2011). The court noted "that false confessions accrued in approximately 25% of DNA exonerations in the United States," and, further, that both the Supreme Court of the United States and the Supreme Court of Pennsylvania have recognized that "'[c]onfessions ... are not conclusive of guilt.'" Id. (quoting Crane v. Kentucky, 476 U.S. 683, 689 (1986)). Thus, "[p]rohibiting defendants who have confessed to a crime from accessing DNA evidence after conviction violates the concept of fundamental fairness," and Grier had "demonstrated that the procedures afforded him by the state court ... violate his right to procedural due process." Id. at 17, 18. Judge Baxter therefore recommended granting Mr. Grier's motion and ordering testing of the DNA evidence collected prior to his conviction. Her ruling represents the first time following the Supreme Court's decision in Osborne that a federal court has found the denial of post-conviction DNA to violate constitutional due process.
Grier v. Klem, et al., No. 05-05 (W.D. Pa., Sept. 19, 2011); Grier v. Klem, et al., No. 11-4277 (3d Cir.)