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New Hampshire Federal Judge Permits Post-Conviction DNA Testing to Show Actual Innocence of BSF Pro Bono Client

January 18, 2008

ARMONK, NY - January 18, 2008 - The law firm of Boies, Schiller & Flexner LLP recently won the right to seek post-conviction DNA testing for their client Robert Breest.  Chief Judge Steven McAuliffe of the United States District Court for the District of New Hampshire denied the New Hampshire Attorney General's motion to dismiss Breest's section 1983 complaint seeking post-conviction DNA testing that could prove that he is actually innocent of the 1971 murder for which he was convicted.  The Court held 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."  The Court's decision is just the fourth such decision - all of them U.S. District Court decisions - to hold that such a right exists under the Constitution.

In denying the motion to dismiss, Chief Judge McAuliffe rejected the conclusions of the three U.S. Courts of Appeals that declined to find such a constitutional right.  BSF represented the Plaintiff in one of those cases - Darrell Grayson, who was executed by the state of Alabama on July 26, 2007.

The Breest Court's opinion contains broad and eloquent language, which seems likely to be quoted by attorneys (and perhaps courts) for years to come.  The legal discussion begins this way: 

"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 government."

In its opinion, the Court observed that Mr. Breest is "represented by capable legal counsel," who "filed a detailed legal memorandum." Armonk associate Ian Dumain has principal responsibility for the matter and wrote the opposition to New Hampshire's motion to dismiss.  He was assisted with logistics by Hanover associate John Clifford, and Christopher Green supervised their work.

In the wake of the decision, BSF will attempt to work with the New Hampshire Attorney General to reach agreement on a DNA testing protocol.  In the absence of such an agreement, BSF will move for summary judgment.

Boies, Schiller & Flexner LLP, founded in 1997, has become one of the nation's premier law firms. It has approximately 240 lawyers in offices located in New York, Washington, D.C., California, Florida, New Hampshire and Nevada. Best known for landmark cases such as United States v. Microsoft, Bush v. Gore, and In re Vitamins, the firm represents some of the largest and most sophisticated organizations in the world in their most important matters. Chambers USA, the leading international guide to law firms, has reported on the firm's "‘exceptional' reputation," and called its practice "nationally renowned."  The firm has been described by The Wall Street Journal as a "national litigation powerhouse," by the National Law Journal as "unafraid to venture into controversial" and "high risk" matters.

Related articles: 

Court: Murderer has right to another DNA test (Associated Press)

Judge: Convict has right to DNA test: Breest was found guilty in Murder (Concord Monitor)

Related Lawyers: , Ian M. Dumain, Christopher M. Green

Related Practice: Pro Bono