Breest v. NH AG 06-CV-361-SM 01/18/08 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Robert B r e e s t , Plaintiff
v. Civil No. 06-CV-361-SM Opinion No. 2008 DNH 012 Attorney General for the State of New H a m p s h i r e . Defendant
O R D E R
Plaintiff, Robert Breest, was convicted of the murder of
Susan Randall over thirty years ago in state court. He was
sentenced to life in prison and has remained incarcerated ever
since. He seeks access to genetic material removed from under
Ms. Randall's fingernails for the purpose of subjecting it to
forensic DNA testing, in the hope of developing evidence to
support a claim of actual innocence. The defendant. New
Hampshire's Attorney General, who has custody of the material,
has moved to dismiss Breest's complaint on several grounds.
Susan Randall apparently "clawed her assailant 'to the
bone'"1, and it seems generally uncontested at this point, given
the record developed in Breest's state criminal case, that modern
1 State v. B r e e s t . No. 72-S-789, New Hampshire Superior Court (Conboy, J.) (July 12, 2007). DNA testing might establish that he was not the murderer, if,
that is, he can be excluded as a contributor to the DNA found
under Ms. Randall's fingernails.
Breest first sought access to the genetic material in March
of 2000, in the context of his state criminal prosecution. He
filed a motion to "bring [the case] forward," and asked the state
court to order DNA testing. See State v. B r e e s t . No. 72-S-789,
New Hampshire Superior Court (Merrimack C o u n t y ) . The New
Hampshire Superior Court considered Breest's motion as one in
support of a potentially meritorious motion for a new criminal
trial, and ordered the requested DNA testing under applicable
state law, finding, inter a l i a , that DNA test results would have
been admissible at his criminal trial had the technology been
available, and that such test results would have been highly
probative of his guilt or innocence. Id.
Three DNA tests were eventually performed on the genetic
material by Cellmark Diagnostics, a private laboratory located in
Germantown, Maryland. Cellmark reported that the first test,
performed in March of 2001, proved inconclusive, apparently
because the questioned sample contained a mixture of the victim's
female chromosomes and the assailant's male chromosomes.
2 A second test was performed in April of 2001. That test
(YSTR testing at 4 loci) was capable of eliminating that common
source of ambiguity in the testing process — a mixture of male
and female chromosomes — by testing only for male chromosomes.
Cellmark reported that it was able to compare the known and
questioned material at 3 of the 4 loci examined, and that Breest
could not be excluded as the source of the male DNA. Breest
responded with affidavits from four experts in the field who
opined that Cellmark's conclusions were flawed and the DNA
testing procedures it employed were unreliable.
Given those criticisms, the Superior Court allowed
additional access to the genetic material for a second round of
YSTR testing in January of 2002. Cellmark again performed the
test, and again reported that Breest could not be excluded as the
source of the male DNA in the sample, noting a match between his
DNA and that in the sample at the 4 loci examined. One in ten
Caucasian males (Breest is Caucasian) could expect their DNA to
match the sample at the 4 loci examined in the test.
In May of 2004, Breest sought another DNA test, again in the
context of his state criminal case. DNA technology had improved
significantly since the 2002 testing, and a 12 loci YSTR test was
3 then available. The 12 loci test is more discriminating than the
earlier tests that examined only 4 loci. The Superior Court
denied that request, however, finding that Breest failed to
demonstrate "why the tests already conducted are not accurate or
why further testing would demonstrate his actual innocence or
would result in a different verdict after trial." State v.
Breest, 72-S-789, Doc. No. 126 (McGuire, J.).
In 2006, Breest filed another motion for DNA testing in his
state criminal case, and filed this parallel federal suit as
well. In this civil case, Breest seeks prospective injunctive
relief against New Hampshire's Attorney General, as custodian of
the genetic material, requiring her to provide an adequate sample
for more definitive DNA testing (i.e., the more discriminating 12
loci YSTR testing, or, presumably, testing under the most
advanced protocol currently available). The state court has
again denied relief in Breest's criminal case — seemingly based
upon its finding that Breest failed to meet a specific burden
under a recently enacted state statute, RSA 651-D:2, III, that
addresses post-conviction access to genetic evidence for DNA
testing.
4 By its terms, RSA 651-D:2, III, authorizes a state court to
order post-conviction DNA testing if a petitioner establishes,
inter a l i a , t h a t :
(f) The evidence sought to be tested was not previously tested under DNA technology or the technology requested was not available at the time of trial.
[or]
(g) If DNA or other forensic testing was previously done in connection with the case, the requested DNA test would provide results that are significantly more discriminating and probative on a material issue of identity, and would have a reasonable probability of contradicting prior test results.
(emphasis a d d e d ) .
The state statute does not expressly limit the number of
post-conviction tests available to a petitioner, but instead
thoughtfully ties the availability of additional testing to
anticipated advances in technology (i.e., "significantly more
discriminating and probative" tests) that might reasonably
provide exculpatory results, different from previous test
results.
It seems evident that a substantially more discriminating
DNA test would ordinarily "have a reasonable probability of
contradicting prior test results" — if "contradicting" is
5 understood to mean "exclude the suspect where a prior DNA test
could not exclude that suspect as the source of questioned DNA.2"
For example, if the prior DNA testing, as in this case, could say
no more than that 1 in 10 Caucasian males could have contributed
the questioned DNA, and the petitioner could not be excluded from
that 10%, but new testing was sufficiently discriminating to
measure the probability of contribution at 1 in 2 billion, then
it would be fair to conclude that a "reasonable probability of
contradiction" exists. But, where the prior DNA testing was
particularly discriminating, say it established that only 1 in 3
billion Caucasian men, including the petitioner, could have been
the source of the questioned DNA, a subsequent, even more
discriminating, test that could produce a result to an accuracy
2 The term "contradictory," as used in the statute is perhaps confusing, given the context. A subsequent and more discriminating DNA test might be capable of eliminating 99.9% of all Caucasian males as the contributor, while the test performed earlier may have been capable of excluding only 50% of all Caucasian males. If the later, more powerful, test excluded a suspect that was not excluded by the earlier, less powerful test, it would plainly be incorrect to say that the different test results were "contradictory." There is, of course, nothing inconsistent in saying a suspect is among 50% of Caucasian males who "could have" been the source of a questioned DNA sample, but is conclusively not among .1% who "could have" been the source. The results are different — one test could not exclude the suspect, being too blunt, while the other could — but the results of those tests would be both consistent and not contradictory, since each test provided accurate responses to very different questions, according to varying capabilities.
6 of 1 in 4 billion, would not as easily qualify as having " a
reasonable probability of contradicting prior results."
In using the phrase "have a reasonable probability of
contradicting prior test results," I do not think New Hampshire's
legislature meant to suggest that courts should casually and
uninformedly speculate about future scientific testing outcomes.
It is, of course, not possible to know in advance whether a
substantially more discriminating DNA test would or would not
exclude a suspect. Rather, I believe the legislature intended to
provide liberal access to genetic material for post-conviction
DNA testing when evolving technology offers a potentially
meaningful and exculpatory result.
In any event, the state court determined that it "cannot
conclude that further tests 'would have a reasonable probability
of contradicting prior test results.' RSA 652-D:2, 111(g)." Id.
Order, dated July 12, 2007 (Conboy, J.). Accordingly, Breest's
motion for more discriminating DNA testing in his state criminal
case was denied.
Breest initially filed this federal civil suit in a pro se
capacity, which triggered preliminary review by the Magistrate
7 Judge. The Magistrate Judge examined the still-developing, and
complex, law relative to post-conviction access to evidence for
DNA testing, and concluded that Breest's complaint stated a
viable Fourteenth Amendment Due Process claim. Breest is now
represented by capable legal counsel, who have filed a detailed
legal memorandum in opposition to the Attorney General's pending
motion to dismiss.
Discussion
Elusive as it may sometimes be, truth is the proper object
of the justice system. Criminal juries are routinely instructed
not to be concerned about whether the government wins or loses a
particular case, because the government always wins when the
truth prevails and justice is done, whether the verdict be guilty
or not guilty. Prosecutors, especially, are duty bound to
ascertain the truth, whatever it might be, and not merely to
pursue criminal convictions. Therefore, it is, or ought to be,
axiomatic that the truth is never untimely and never to be feared
by the g o v e r n m e n t .
There is legitimate debate among federal courts regarding
the existence, nature, and reach of a civil constitutional right,
under the Due Process Clause of the Fourteenth Amendment, to post-conviction access to biological evidence for DNA testing.
S e e , e . g . . Harvey v. H o r a n . 285 F.3d 298 (4th Cir. 2002) ("Harvey
II"). But even highly respected judges who think such a right
does not exist, and cannot be vindicated under Section 1983,
still generally agree that modern DNA technology, not available
at the time of conviction, ought to be made available in cases
where test results could serve to establish the truth and free
the innocent. For example, as Chief Judge Wilkinson wrote in
Harvey I I :
There is no doubt that Harvey should receive the biological evidence in this case for DNA testing using technology that was unavailable at the time his Virginia conviction became final. In fact, the panel opinion suggested that the state courts could order DNA testing. See Harvey v. H o r a n . 278 F.3d 370, 380 (4th Cir. 2 0 0 2 ) (stating that "state courts are free in ways that we are not to set the ground rules by which further collateral attacks on state convictions such as Harvey's may be entertained"). And that is precisely what the state courts have done. The question before us is thus not whether Harvey should or will receive the DNA evidence. He should and he will. Rather the issue is whether a § 1983 action brought in federal court in the first instance is the appropriate vehicle for him to access that evidence. (Emphasis supplied.)
Id. at 298.
In this case, as well, it seems to me that Breest should
have the genetic evidence made available for further scientific
testing, taking as true his allegations of inadequate prior
testing, and the development of new and substantially more
9 discriminating technology. But, it is not so clear in this case
that the State will provide access to the evidence in its
custody. The state courts have declined to allow further testing
under applicable state law. (Those courts have not been asked,
however, to consider whether a federal constitutional right might
provide a discrete basis upon which to grant the relief sought.)
And, New Hampshire's Attorney General, who certainly may provide
the necessary sample as a matter of her discretion, seems
disinclined to do so, absent extensive litigation and a binding
court order.
No doubt the State will say that it opposes Breest's request
in the interest of preserving the value of finality of criminal
convictions, and, to be sure, finality is an important aspect of
the criminal justice system. But finality falls well below truth
on the scale of relative values. The State might also suggest
that repeated test requests would pose an undue administrative
burden, but there is scant evidence to support such a claim. If
it can even be called a burden to send a small genetic sample to
a qualified laboratory for scientific testing (a sample of
material that the State has no apparent interest in preserving
for its own purposes) it is a rather negligible one, particularly
10 given Breest's asserted willingness to pay for the cost of
The issues of federal law presented by this dispute, given
that Breest seeks a successive, not a first, test, are somewhat
nuanced and complicated, and are "not ones that [federal] courts
should particularly relish decision upon, so difficult and
delicate . . . are the answers." Harvey I I , 285 F.3d at 307
(Luttig, J). The immediate legal issue raised by the defendant's
pending motion to dismiss is whether plaintiff's complaint
describes a cognizable federal cause of action. In deciding
whether it does, this court is bound to accept as true all well-
pleaded factual allegations, and to draw all reasonable
inferences from those facts in plaintiff's favor. Dismissal is
appropriate only if "it clearly appears . . . that the plaintiff
cannot recover on any viable theory." Lanqadinos v. American
A i r l i n e s . I n c ., 199 F.3d 68, 69 (1st Cir. 2000). See also Gorski
v. N.H. Dep't of C o r r . , 290 F.3d 466, 472 (1st Cir. 2002) ("The
issue presently before us, however, is not what the plaintiff is
required ultimately to prove in order to prevail on her claim,
but rather what she is required to plead in order to be permitted
to develop her case for eventual adjudication on the merits.")
(emphasis in original).
11 The principal issue at this early stage of the litigation,
then, is whether Breest can maintain a viable civil claim against
New Hampshire's Attorney General under 42 U.S.C. § 1983 or,
stated slightly differently, whether a constitutional p o s t
conviction right to access biological evidence for purposes of
DNA testing exists. Later, more difficult questions will arise,
involving the specific circumstances under which such a right can
be invoked and the nature, scope and reach of that right.
In Breest's criminal case, the State has effectively
conceded that DNA testing could prove critical in either
supporting or putting the lie to his claim of "actual" (as
opposed to "legal") innocence — an allegation that must be
plausibly asserted in a future federal or state habeas corpus
petition. Breest says that evolving scientific technology can
now more accurately and reliably determine whether his DNA can be
excluded from that found among the victim's fingernail scrapings,
and he reiterates that the administrative burden on the State to
produce a testable genetic sample is de m i n i m u s . He further
claims that technical performance failures substantially
undermined the reliability, and therefore the probative value, of
the previous ambiguous DNA testing done by Cellmark Laboratories.
And, of course, he stresses that current DNA technology is far
12 more discriminating than the 4 loci tests done earlier. In other
words, he credibly suggests that not being excluded by a 4 loci
test says little about the likelihood of exclusion by a more
refined test that can examine 12 loci.
Breest's claim for relief in this civil case is rather
narrow. He only seeks access to DNA testing, by a qualified
independent laboratory, of biological evidence already in the
State's possession, pursuant to a more rigorous and meaningful
procedure, and at his own expense. I am persuaded that there is
a federal constitutional right to post-conviction access to
genetic material evidence for DNA testing purposes — a right that
is rooted in procedural and substantive due process rights
protected by the Fifth and Fourteenth Amendments, though the
contours and reach of that right remain imprecise. See, e.g..
McKithen v. B r o w n . 481 F.3d 89 (2d Cir. 2007); Wade v. B r a d v . 460
F. Supp. 2d 226 (D. Mass. 2 0 06); Godschalk v. Montgomery Ctv
Dist. Attv's O f f i c e . 177 F. Supp. 2d 366 (E.D. Pa. 2001); Savory
v. L y o n s . No. 06-1296, 2006 WL 3423072 (7th Cir., Sept. 11,
2006); Osborne v. District Attv's O f f i c e . 445 F. Supp. 2d 1079
(D. Alaska 2006). But s e e , Gravson v. K i n g . 460 F.3d 1328 (11th
Cir. 2006); Harvey v. H o r a n . 278 F.3d 370 (4th Cir. 2002). The
exact nature and scope of that right do, indeed, raise
13 extraordinarily delicate and important legal questions, see,
e . g . , Harvey I I , s u p r a ; McKithen v. B r o w n , su p r a , and courts must
be cautious in developing those contours on a case-by-case and
fact-specific basis.
In support of her motion to dismiss, the Attorney General
argues that plaintiff's success in this civil case will serve to
undermine his state conviction, so this suit effectively
constitutes a petition for federal habeas corpus relief, which he
must bring under, and subject to the restrictions imposed by,
28 U.S.C. § 2254. The court disagrees. If plaintiff succeeds in
this civil case, he will have achieved nothing more than an
opportunity to subject a highly relevant biological sample to a
discriminating DNA testing protocol, free from the comparative
inadequacy, and alleged performance deficiencies, said to
undermine the previously reported ambiguous DNA test results.
A more discriminating DNA test may prove inculpatory rather
than exculpatory, or it may be inconclusive. It is not possible
to know what a more discriminating test result will show. But
neither this suit, nor further testing, implicates the validity
of Breest's criminal conviction. See Heck v. H u m p h r e y , 512 U.S.
477 (1994). Breest's conviction is valid, and it will remain
14 valid, without regard to any relief granted here. Unless and
until his conviction is overturned in a different proceeding that
addresses entirely different issues, Breest will remain in
prison.
Accordingly, this suit is not the functional equivalent of a
federal habeas petition challenging a state conviction, or the
fact of incarceration. It is just a civil suit aimed at
determining, on something of a reliable scientific basis, whether
grounds exist upon which Breest might seek future relief from his
state conviction, in either state or federal court — the only
realistic grounds for such relief at this point being "actual
innocence." So, I do not agree, as the Attorney General argues,
that plaintiff's suit is barred as a successive habeas petition.
Next, the Attorney General asserts that plaintiff's claim is
barred by the Rooker-Feldman doctrine. Again, the court
disagrees. Given the Supreme Court's recent clarification of
that doctrine in Exxon-Mobil Corp. v. Saudi Basic Industries
C o r p ., 544 U.S. 280 (2005), Rooker-Feldman does not apply here.
As explained by the Second Circuit in M c K i t h e n . su p r a , the prior
state court orders in Breest's criminal case, denying his request
for additional testing under state law, are not the "cause" of
15 his asserted injury here. He is not seeking to overturn those
state court orders in federal court. Although he does seek
identical relief — DNA testing of evidentiary material — he seeks
it through an entirely different means, based upon a discrete
federal right, rather than through a motion for new trial under
state law in his state criminal case. See M c K i t h e n . 481 F.3d at
21-22. Disposition of his motions for similar relief in the
state criminal context did not involve or affect his federal
civil claim of right.
Nor do principles of res judicata or collateral estoppel bar
this suit. Plaintiff's earlier efforts in state court were
framed exclusively in the context of his criminal case. The
state court's rulings did not involve any determination regarding
either the existence, or extent, of a federal civil right to
post-conviction access to biological evidence for DNA testing,
nor has the Attorney General plausibly shown that plaintiff could
have litigated a federal civil claim in the context of his state
criminal case. And, the Attorney General has not shown that the
statutory (or common law) right of access previously at issue in
the state courts is necessarily coextensive with the federal
civil right invoked by plaintiff in this case. See M c K i t h e n . 481
F .3d at 43.
16 Finally, the State's motion also seeks dismissal of any
state law claim raised by plaintiff. But plaintiff is not
asserting any state law claims in this case; his sole claim is
based upon an assertion that he has a constitutionally protected
right of access to the evidence in the Attorney General's
possession for DNA testing.
Conclusion
A federal right to post-conviction access to biological
material directly relevant to criminal guilt or innocence, for
DNA testing purposes, does exist. It is rooted in the liberty
and due process rights protected by the Fifth and Fourteenth
Amendments. The reach and nature of that right under varying
factual circumstances have yet to be fully described. But
plaintiff's complaint does assert facts and a legal theory in a
manner sufficient to withstand a motion to dismiss, and defendant
has not demonstrated that his claim is otherwise barred.
As plaintiff has made clear (and the court agrees), this
civil dispute ends upon submission of a testable sample to a
qualified independent laboratory for DNA testing pursuant to
currently available technology. Given the allegations of
ambiguous earlier test results, allegedly deficient testing
17 procedures and reporting, significant advancements in DNA
technology capable of producing substantially more accurate and
reliable results, the gravity of the crime of conviction, and the
potential significance of the test results sought, as well as the
virtually negligible burden on the State to provide a biological
sample for testing, the State's reticence to provide a sample is
difficult to understand on any principled or pragmatic basis.
Certainly, New Hampshire is not overburdened with requests from
convicted persons to have biological samples subjected to valid
DNA testing procedures not available at the time of conviction.
Providing a sample in this case for reputable testing at
plaintiff's own expense will surely prove far less burdensome to
the State in the end than will the expenditures of time, money,
and legal resources required to resist testing (perhaps
unsucces s f u l l y ) . And, further testing, as noted earlier, will
only produce scientifically valid, and perhaps useful,
information that the State has no legitimate cause to fear.
The motion to dismiss (document no. 12) is denied.
SO ORDERED.
Steven J McAulif f e Chief Judge
January 18, 2008
18 cc: Christopher M. Green, Esq. Ian M. Dumain, Esq. John S. G. Clifford, Esq. Neals-Erik W. Delker, Esq. Richard W. Head, Esq. Nancy Smith, Esq. John Vinson, NH DOC-Concord