A man arrested and convicted of sexual assault had his conviction overturned when DNA testing indicated that his uncle, rather than he, was the guilty party. Despite this, his malicious prosecution lawsuit against the police was properly dismissed, since, based on the evidence they had at the time, they had probable cause to arrest him, even if they were ultimately mistaken. Under these circumstances, they had no improper malice towards him, and did nothing improper. Holland v. City of Chicago, #09-3905, 2011 U.S. App. Lexis 12688 (7th Cir.).
     A man sentenced to death after being convicted of murdering his girlfriend sought to challenge his conviction in Texas state court by seeking DNA testing of various untested evidence from the crime scene, including knives, an axe handle, vaginal swabs, fingernail clippings, and certain hair samples. State courts rejected his plea for DNA testing, finding that he had not made a required showing that he "would not have been convicted if exculpatory results had been obtained through DNA testing." He then filed a federal civil rights lawsuit against the prosecutor, seeking injunctive relief requiring the DNA tests. By a 6-3 vote, the U.S, Supreme Court held that claims concerning the right to DNA testing could be asserted not only in habeas corpus proceedings, but also in federal civil rights lawsuits. Success in having the testing done would not necessarily imply the invalidity of the plaintiff's conviction. The Court therefore ordered further proceedings on the merits of the plaintiff's claim that denying him the DNA testing violated his due process rights. . Skinner v. Switzer, #09-9000, 2011 U.S. Lexis 1905.
     A man being prosecuted for armed bank robbery was granted a motion to suppress a sample of his DNA to compare with DNA found in a van believed to have been used by the robber, on the ground that it had been obtained by way of a materially and recklessly false warrant affidavit, in violation of the Fourth Amendment. A paragraph in the affidavit was false, as it misrepresented that police interviews of "various witnesses" had observed a stolen van meeting up with a silver Volkswagen van following the robbery. The officer writing the affidavit had not participated in interviewing the witnesses or read the written witness statements, and did not review the investigation reports in any detail. The officer's drafting of the affidavit went beyond simple negligence into recklessness, as it could be said that he had no evidentiary basis at all for making the statement concerning the van. U.S. v. Brown, #09-3643, 2011 U.S. App. Lexis 1059 (3rd Cir.).
     A man was convicted of rape and kidnapping on the basis of testimony by a police forensic chemist that hair and semen found at the scene of the crime were consistent with samples taken from him. Seventeen years later, the man's conviction was vacated based on exculpatory DNA results. The chemist's own lab tests indicated that she should have excluded him as a possible suspect. In a federal civil rights lawsuit against the chemist and the city that employed her, the arrestee was awarded $16.5 million against the chemist. The city was found not liable. The chemist filed an indemnification cross-claim against the city, but settled it for $23,364.29 without the plaintiff's participation. A federal appeals court has upheld the trial court's rejection of the plaintiff's attempt to directly seek indemnification on his judgment against the chemist from the city, since there was no evidence of deliberate indifference by the city and the plaintiff was not the real party in interest on the chemist's indemnification cross-claim. Bryson v. Oklahoma City, #09-6143, 2010 U.S. App. Lexis 24822 (10th Cir.).
      In a case involving a prosecution for a number of sexual offenses, the California Supreme Court approved the use of a "John Doe, unknown male" arrest warrant, describing the wanted person by his unique 13-loci deoxyribonucleic acid (DNA) profile. The warrant was issued in this manner, as the statute of limitations for attempting to prosecute the offenses would have otherwise been exceeded.. Peo. v. Robinson, #S158528, 47 Cal. 4th 1104, 224 P.3d 55 (Cal. 2010).
    A man was convicted of a murder and jailed for ten years. Ultimately, he was exonerated based on post-trial DNA testing carried out by the district attorneys' office. He sued, contending that his rights were violated by a 72-day delay in informing him or his lawyer of the exculpatory results. A federal appeals court ruled that prosecutors were entitled to absolute immunity from liability because their actions were integrally connected to their role as advocates for the state in post-conviction proceedings. An order denying the defendant county's motion to dismiss was not immediately appealable. Warney v. Monroe County, #08-0947, 2009 U.S. App. Lexis 24914 (2nd Cir.).
     An inmate claimed that Pennsylvania's refusal to allow him to conduct post-conviction DNA testing on evidence in his criminal case violated his due process rights. The federal appeals court noted that the U.S. Supreme Court rejected that argument in District Attorney's Office for the Third Judicial Circuit v. Osborne, #08–6, 2009 U.S. Lexis 4536, and that there is no federal constitutional right to such testing. Young v. Philadelphia County District Attorney's Office, #09-1668, 2009 U.S. App. Lexis 17799 (Unpub. 3rd Cir.).
     A federal court has held that police can lawfully forcibly take DNA samples, including by drawing blood with a needle, from persons who have been arrested but not convicted of any crime. The court upheld a federal statute allowing the gathering of such samples from those arrested for a felony. The court rejected claims that taking such samples was overly intrusive or violates the Fourth Amendment. U.S.A. v Pool, #CR09-0015, (E.D. Cal.).
     A man was convicted of kidnapping, sexual assault, and assault after the prosecution elected not to conduct DNA testing on materials from the victim's person and her clothing. His requests for DNA testing in connection with post-conviction proceedings were denied in state court. In a federal civil rights lawsuit seeking access to the materials for DNA testing, denying this request, a federal appeals court ruled that there is no due process right to post-conviction access to evidence for DNA testing, and nothing constitutionally inadequate in Colorado's post-conviction procedures applied in this context. McDaniel v. Suthers, #08-1400, 2009 U.S. App. Lexis 13613 (10th Cir.).
      Qualified immunity was improperly granted in a lawsuit over the forcible taking of a DNA sample from a pretrial detainee merely because a prosecutor wanted to put the sample in a "cold case" data bank. At the time, the court stated, there was no warrant or court order authorizing the taking of the sample, nor was the detainee suspected of a crime for which a DNA sample might be justified. An officer allegedly forced his jaw open and forcefully took a swab from the inside of his mouth. If true, this action violated the detainee's clearly established Fourth Amendment rights. Friedman v. Boucher, No. 05-15675, 2009 U.S. App. Lexis 13440 (9th Cir.).   .
     The U.S. Supreme Court, in a federal civil rights lawsuit brought by a man convicted of sexual assault and other crimes, held that the plaintiff had no constitutional right to post-conviction access to the state's evidence for DNA testing for the purpose of attempting to prove his innocence. The Court also reasoned that it was a legislative task to develop procedures and rules for obtaining access to such evidence for DNA testing. District Attorney's Office for the Third Judicial Circuit v. Osborne, #08–6, 2009 U.S. Lexis 4536.
    The U.S. Supreme Court has announced that it will decide whether a man convicted of sexual assault and kidnapping fourteen years ago has a constitutional right to access to DNA from physical evidence collected in the case for the purpose of conducting tests which he claims will show his innocence, but which were not possible scientifically to perform at the time of his trial. District Attorney's Office v. Osborne, # 08-06, cert. granted, Nov. 3, 2008. Case below: Osborne v. District Attorney's Office, #06-35875, 521 F.3d 1118 (9th Cir. 2008).
     While plaintiff's claim that denial of access to physical evidence which was the basis for his murder conviction stated circumstances which might violate his constitutional rights, his claim was time-barred under a two-year statute of limitations which began to run on the date that a state court denied his request for access to the physical evidence for purposes of DNA testing. Savory v. Lyons, No. 06-1296 (7th Cir. November 29, 2006). [N/R]
     Arrestee had no constitutional right to pre-trial DNA testing, even though failure to do requested test allegedly delayed his release from detention for twenty-two months. Jimenez v. State of New Jersey, 245 F. Supp. 2d 584 (D. N.J. 2003). [2003 LR Jul]
     Court defers to legislature the issue of the potential constitutional right to post-conviction DNA testing for persons convicted of federal crimes and declines to fashion a broad constitutional due process right of access to DNA testing. Harvey v. Horan, 278 F.3d 370 (4th Cir. 2002) [N/R]
     Florida state DNA testing statute upheld against state constitutional privacy challenge. Requirement that all felons convicted of certain offenses undergo a DNA blood test also did not violate a juvenile felon's Fourth Amendment rights, since the public's legitimate interests in identifying the perpetrators of crime, absolving the innocent, and preventing recidivism outweighed a felon's diminished expectation of privacy. L.S. v. State of Florida, 805 So. 2d 1004 (Fla. App. 2001). [N/R]