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Second Circuit Denies Request for Post-Conviction DNA Testing

By Robyn Hagan Cain on April 06, 2012 | Last updated on March 21, 2019

The Second Circuit Court of Appeals adopted a standard of review for DNA testing appeals this week. The court established in Tuesday's U.S. v. Pitera decision that the question of whether a prisoner is entitled to DNA testing under the Innocence Protection Act is subject to de novo review.

De novo re view, however, was not enough to help Thomas Pitera win his DNA testing request.

To justify post-conviction DNA testing under the Innocence Protection Act, the court that entered the judgment of conviction must make nine findings:

  1. The applicant has submitted a written motion, under penalty of perjury, claiming that he is "actually innocent."
  2. The evidence for requested testing is related to the investigation or prosecution of the federal offense for which the applicant was convicted.
  3. The evidence was not previously tested for DNA, and the applicant did not waive his right to testing before the enactment of the Innocence Protection Act.
  4. The evidence is in the government's possession and has been subject in a chance of custody that would not have tainted material for DNA testing.
  5. The proposed DNA testing is reasonable in scope, scientifically sound, and consistent with accepted forensic practices.
  6. The applicant has identified a defense theory that would not be inconsistent with an affirmative defense presented at trial.
  7. In the case of one convicted after trial, the perpetrator's identity must have been in question.
  8. The proposed testing could produce new material evidence supporting the defense theory and the applicant's innocence.
  9. The applicant will provide a DNA control sample.

In Pitera's case, the district court and the Second Circuit Court of Appeals denied post-conviction DNA testing because it would not produce new evidence of Pitera's innocence.

Pitera requested post-conviction DNA testing on six items, claiming that the tests would prove that Frank Gangi, (who admitted to being Pitera's accomplice in the crimes), was the real killer.

The Second Circuit disagreed, finding, "Even if the [evidence] did not show Pitera, but rather showed DNA only of Gangi and the victims, such a showing would not 'raise a reasonable probability that [Pitera] did not commit the offense'" because the government had alleged that Gangi committed the murders with Pitera.

It's harder to win post-conviction DNA testing when the government has previously established that two people participated in a crime. The Innocence Protection Act cannot help a defendant prevail on a motion to compel testing unless the testing would prove innocence.

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