Frank McKithen v. Richard Brown, District Attorney, County of Queens, New York

CALABRESI, Circuit Judge:

Eighty-four years ago, Judge Learned Hand observed that “[o]ur procedure has been always haunted by the ghost of the innocent man convicted,” but posited, optimistically, that “[i]t is an unreal dream.” United States v. Garsson, 291 F. 646, 649 (S.D.N.Y.1923). Today, with the advance of forensic DNA technology, 1 our desire to join Learned Hand’s optimism has given way to the reality of wrongful convictions 2 —a reality which challenges us to reaffirm our commitment to the principle that the innocent should be freed. 3

The case sub judice arises at this intersection of…