Full opinion text
MEMORANDUM AND ORDER RE: MOTION TO DISMISS GERTNER, District Judge. TABLE OF CONTENTS I. INTRODUCTION.........................................................229 II. FACTS...................................................................231 A. The Crime....................................... 231 B. Procedural History ....................................................232 III. ANALYSIS...............................................................233 A. Standard of Review....................................................233 B. Statute of Limitations..................................................233 C. Heck, Habeas, and the Implicit Exception to § 1983........................236 1. The Relevant Precedent.............................................236 2. Plaintiff s Case.....................................................237 D. Collateral Estoppel.....................................................239 1. Legal Standard....................................................239 2. Analysis..........................................................240 E. Due Process...........................................................243 1. Brady Rights......................................................244 a. Brady’s Holding and Its Applicability to DNA Testing..............244 b. Brady, Wrongful Conviction, and Due Process.....................246 e. Due Process Analysis...........................................247 2. Meaningful Access to the Courts .....................................249 3. Additional Claims..................................................251 IV. CONCLUSION............................................................251 I. INTRODUCTION Plaintiff Robert Wade (‘Wade”) initiated the current § 1983 action on December 12, 2005, suing various public officials in Plymouth County to obtain access to DNA testing of biological evidence used eight years before in his felony murder trial. Defendants have moved to dismiss under Fed.R.Civ.P. 12(b)(6), arguing that prosecutors have no constitutional obligation to provide such access. Wade, who has been diagnosed with borderline retardation, was convicted of felony murder in 1997. The underlying felony was rape. Despite the existence of blood and semen evidence, which suggested that another individual may have been involved in the rape (either in addition to, or in lieu of, Wade), Wade did not seek DNA testing until 2002, nearly five years after his conviction. Two Associate Justices of the Massachusetts Superior Court denied Wade’s motions for DNA testing without comment on its constitutional status. A Single Justice of the Supreme Judicial Court of Massachusetts (“SJC”) denied his appeal without any opinion. Wade then brought a habeas petition before this Court, which was denied as time-barred. Wade v. Brady, 04-cv-12135-NG (D.Mass. Sept. 26, 2005) (order granting motion to dismiss). He now reconfigures his claim as a § 1983 claim, addressing the same issue: access to DNA testing. Wade’s claim raises a host of unsettled legal issues, both substantive and procedural. The fundamental question is whether a constitutional right exists to post-conviction DNA testing. The advent of DNA testing has been a watershed development for criminal law and criminal procedure, allowing for a qualitative advance in the determination of guilt or innocence. The legal progress, however, has lagged behind the technological progress. The constitutional footing of a convicted offender’s rights to DNA access is still largely unexplored. New courts have considered the issue as a § 1983 right, and their decisions do not reveal an obvious consensus. The Eastern District of Pennsylvania held that § 1983 petitioners have a post-conviction due process right, grounded in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to access evidence that could undermine faith in the jury verdict. Godschalk v. Montgomery County Dist. Attorney’s Office, 177 F.Supp.2d 366, 370 (E.D.Pa.2001). The Eastern District of Virginia arrived at the same decision in connection with a § 1983 petition. Harvey v. Horan, No. 00-1123-A, 2001 WL 419142, at *4 (E.D.Va. Apr.16, 2001), and was subsequently reversed by the Fourth Circuit. Harvey v. Horan (Harvey I), 278 F.3d 370 (4th Cir.2002). There are many ways in which to characterize a right to post-conviction DNA testing. The most obvious, and the one most frequently discussed by the above-cited decisions, is to analogize it to Brady v. Maryland’s guarantee that defendants be afforded access to favorable, material evidence. 373 U.S. at 87-88, 83 S.Ct. 1194. While defendants note correctly that Brady focused on pre-trial disclosure obligations, that is not the end of the analysis. Brady justified the pre-trial disclosure obligations imposed on prosecutors under the Due Process Clause. It did not foreclose, either explicitly or implicitly, the existence of analogous obligations in the post-conviction context. Brady’s disclosure requirements were based on the belief that innocent defendants would be punished if the State denied them access to exculpatory evidence. The same risk persists in the post-conviction setting. And DNA testing’s unique qualities justify a completely different balance than the courts usually strike in addressing post-conviction challenges. When the evidence is a new witness, or a recanted confession, for example, years after the conviction, it may or may not exonerate the defendant. As such, it is difficult to justify the cost of further proceeding — the financial cost to the government, the emotional cost to the victims. But DNA testing is different. Because DNA testing can exonerate the defendant, the government may only legitimately deny access to testing if it has a compelling reason to do so. To hold otherwise would subordinate the pursuit of justice to an arid obsession with procedure. Where DNA evidence can prove that a miscarriage of justice was perpetrated by an earlier verdict, our interest in fundamental fairness and the integrity of the criminal justice system require that DNA testing be allowed. Because I find that a Due Process right to DNA testing does exist, I hereby deny defendant’s motion to dismiss. One caveat: This decision resolves a motion to dismiss the complaint, a very preliminary stage in the analysis. It does not resolve the question of whether plaintiff is entitled to DNA access in this case. A number of other questions must be addressed before such a finding can be made, namely, what showing a defendant must make before receiving access to DNA evidence; whether equitable tolling saves plaintiff from any possible statute of limitations issues; and whether the facts of plaintiffs case meet the showing required for the relief sought. II. FACTS A. The Crime In 1993, Robert Wade was employed as a farmhand on a Lakeville, Massachusetts, farm where he also lived. Although plaintiff was able to perform the manual labor for which he was hired, testing reveals that he has a 72 point IQ — a score that places him in the range of borderline mental retardation. The mother of plaintiffs employer also lived on the farm. She suffered from advanced Alzheimer’s disease. On October 24, 1993, plaintiffs employer found his mother naked and injured in Wade’s cabin. She was quickly taken to the hospital and treated for a fractured wrist, fractured hip, and abrasions on her shoulders, knees, and buttocks. Surgery was performed on the victim’s hip. Four days later she developed respiratory problems and then pneumonia. Her condition improved temporarily and she was transferred out of the intensive care unit to a regular ward. However, she soon developed pneumonia again and died on November 13,1993. After the victim first arrived at the hospital, police collected vaginal swabs and slides, and a semen and blood-stained cutting from the crotch of her pants. Laboratory tests on the vaginal swabs and slides revealed the presence of semen. At trial, the pathologist testified that “in reference to the vaginal swab, at this level of analysis, the suspect can not be excluded as a contributor into that sample.” Compl. ¶ 17. Laboratory tests on the cuttings revealed the presence of both “H” and “A” antigens. Plaintiffs blood is an “O” secretor, a blood type shared by 40% of the population. “0” seeretors yield only an “H” antigen in serological analysis. Because the victim also has Type “0” blood, the presence of “A” antigens, if accurately typed, suggests that a third party’s blood and/or semen was also present on the victim’s clothing. No DNA testing was performed on any of the samples, either at trial or afterwards. Although plaintiff was in the cabin when the victim was found, he told authorities, and has maintained to this day, that he did not have intercourse with the victim or harm her in any way. B. Procedural History Wade was indicted on December 6,1993, on one count of aggravated rape and one count of first degree murder. The jury trial took place in early September 1997. Wade’s counsel never ordered DNA testing on the sperm sample found in the victim’s vagina, presumably because his theory, improbable to be sure, was that whatever sexual activity had occurred was consensual. Moreover, DNA testing was not a common practice in 1997. On September 8, 1997, the jury returned guilty verdicts on both counts of the indictment, aggravated rape under Mass. Gen. Laws ch. 265, § 22 (2000), and first degree murder on a felony murder theory, under Mass. Gen. Laws ch. 265, § 1 (2000). Wade filed his notice of appeal on September 24, 1997, the same day that his counsel moved to withdraw and Wade moved for appointment of appellate counsel. On September 29, 1997, counsel’s motion to withdraw was allowed, and appellate counsel was appointed. On November 21, 1997, new counsel filed her appearance. On August 6, 1998, the SJC affirmed the first degree murder conviction but vacated the aggravated rape conviction. See Commonwealth v. Wade, 428 Mass. 147, 697 N.E.2d 541 (1998). The rationale for its decision was that the murder was based only on a felony-murder theory, and since the rape charge was the underlying felony, it was necessarily a lesser included offense. Wade did not seek certiorari to the United States Supreme Court. On May 9, 2000, Wade filed a pro se motion to appoint yet another lawyer, and a pro se motion for a writ of habeas corpus. On May 23, 2000, the Superior Court denied both motions. In so doing, the court stated only that it denied the motion for new counsel because Wade had been permitted to change lawyers once and could not do so again. Nothing in the record discloses the grounds for Wade’s habeas claims or why the Superior Court rejected them. Although no counsel had been appointed, a new attorney entered an appearance for Wade on July 17, 2000. Over the next two years, counsel took no action on Wade’s behalf. Then, on August 21, 2002, counsel filed a motion in Superior Court for preservation of evidence, which was allowed on October 31, 2002. On December 9, 2002, Wade filed a motion for DNA testing of physical evidence, and three weeks later a motion for new trial based on ineffective assistance of counsel. On July 29, 2003, a hearing was held on Wade’s motion for DNA testing and the motion was denied. In denying the motion, the court found Wade’s testimony that he did not have sex with the victim unconvincing and in direct conflict with Wade’s trial theory of consent. Wade filed a motion for reconsideration of the denial of his motion for DNA testing on August 13, 2003; it was denied without hearing on August 15, 2003. Wade’s motion for a new trial was denied on December 23, 2003. On February 9, 2004, Wade filed a petition to a Single Justice of the SJC, pursuant to Mass. Gen. Laws ch. 278, § 33E (1998), seeking leave to appeal both the denial of his motion for DNA testing and his motion for a new trial. Without comment, the Single Justice denied leave to appeal on April 12, 2004. On October 8, 2004, Wade filed a petition for federal habeas relief in this Court, pursuant to 28 U.S.C. § 2254 (1996). Respondents moved to dismiss shortly thereafter. In response to this Court’s order, both parties filed supplemental briefing on whether habeas case law required that a threshold showing of actual innocence be made before DNA testing could be ordered. Petitioner also filed a motion to amend on May 13, 2005. On September 26, 2005, this Court entered an order allowing respondents’ motion to dismiss the habeas petition as time-barred and allowing the petitioner’s motion to amend to include claims made pursuant to § 1983. On October 11, 2005, plaintiff filed an amended complaint under § 1983, alleging that defendants violated plaintiffs constitutional rights, specifically, his rights established by the First, Sixth, Eighth and Fourteenth Amendments, by refusing to surrender the blood and semen samples for DNA testing. Defendants moved to dismiss again on November 1, 2005, and plaintiff filed an opposition. III. ANALYSIS A. Standard of Review “In considering a motion to dismiss, a court must take the allegations in the complaint as true and must make all reasonable inferences in favor of the plaintiffs.” Watterson v. Page, 987 F.2d 1, 3 (1st Cir.1993). “The complaint will survive as long as it pleads sufficient facts to warrant recovery on any cognizable theory of the case.” Tompkins v. United Healthcare of New England, Inc., 203 F.3d 90, 93 (1st Cir.2000). However, the court “need not credit a complaint’s ‘bald assertions’ or legal conclusions.” Glassman v. Computervision Corp., 90 F.3d 617, 628 (1st Cir.1996). B. Statute of Limitations Section 1983 does not contain a specific statute of limitations. See Wilson v. Garcia, 471 U.S. 261, 266, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Instead, § 1983 claims “borrow[] the appropriate state law governing limitations unless [it is] contrary to federal law.” Vistamar, Inc. v. Fagundo-Fagundo, 430 F.3d 66, 69 (1st Cir.2005) (quoting Poy v. Boutselis, 352 F.3d 479, 483 (1st Cir.2003)). Liability under § 1983 is most akin to tort liability, so the applicable statute of limitations is the three year period Massachusetts law has established for personal injury actions. McIntosh v. Antonino, 71 F.3d 29, 33-34 (1st Cir.1995). Although the limitation period is borrowed from state law, the accrual period is taken from federal law. Id. at 34. Under federal law, accrual starts when the plaintiff “knows, or has reason to know, of the injury on which the action is based.” Id. (quoting Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 353 (1st Cir.1992)). In the instant action, the accrual inquiry is particularly complicated. Arguments could be made for several “start dates”: 1) The date of Wade’s conviction (Sept. 8, 1997); 2) the date Wade first asked for access to his DNA (Aug. 21, 2002); 3) the denial of this request by either the Superior Court (July 29, 2003) or the SJC (April 12, 2004); or 4) the time at which the constitutional dimension of his injury, and therefore the reason to know that his injury was actionable, became clear (uncertain). The analysis is further complicated by Wade’s claim of equitable tolling, a doctrine used to advance the cause of justice when strict application of the statute of limitations would yield fundamentally unfair results. Defendants argue that plaintiff knew, or had reason to know, of the injury upon which his action is based by the first date of September 8, 1997, the date of conviction. Plaintiff was indicted on December 6, 1993, but did not go to trial until nearly four years later, in early September 1997. Def. Ex. A. A week before trial, on August 25, 1997, the SJC handed down two decisions in unrelated cases, determining that short tandem repeat (“STR”) DNA testing and two other techniques derived from the polymerase chain reaction (“PCR”) testing method were scientifically valid and would be admissible if properly performed. Commonwealth v. Rosier, 425 Mass. 807, 685 N.E.2d 739 (1997) (STR testing valid); Commonwealth v. Sok, 425 Mass. 787, 683 N.E.2d 671 (1997) (PCR-derived techniques valid). Two weeks later, on September 8, 1997, plaintiff was found guilty of murder in the first degree. Def. Ex. A. Three weeks after Wade’s conviction, on September 30, 1997, the Massachusetts Legislature passed a law related to the collection and testing of DNA evidence for individuals accused of crimes. See Mass. Gen. Laws ch. 22E, §§ 1-15. Because of this confluence of events, defendants argue that the statute of limitations expired in September 2000, two years before plaintiff sought access to his DNA in state court and four years before he filed the present action. In contrast, plaintiff dates the limitations period from 2003, when he was refused access to DNA testing. Obviously, any injury from 2003 necessarily occurred within three years of October 8, 2004, when Wade filed his habeas petition in this Court. The parties’ disagreement highlights the fundamental question before the Court: how to determine the period of accrual for a newly emergent right. If the prosecutor had an obligation to provide DNA testing in September 1997, it would make sense to consider this the appropriate time of accrual. However, STR DNA testing was not even determined to be admissible by the SJC until a scant week before plaintiffs trial. Thus, it makes little sense to assume that STR or PCR DNA testing made the leap from “questionably admissible” to “constitutionally compelled” in seven days. Another tenable argument is that Wade reasonably learned of his injury when he filed the motion for DNA testing in 2002 (and it was not immediately granted), or when his first action was ultimately denied in 2003. At this point, it was certainly clear that an injury had occurred, and Wade had already couched his request in constitutional terms. See Def. Ex. J, N. This possibility is inviting insofar as it provides clear evidence of plaintiffs knowledge, but raises the unsettling possibility that Wade himself could control the accrual period through his filing decisions. If such a rule were implemented the statute of limitations would not have expired until 2006. Another possibility is to conclude that defendant’s statute of limitations period should accrue at the time when Wade could have reasonably understood that he had suffered an injury compensable under § 1983. Because neither party has briefed this issue, and the question of when Wade “reasonably understood” the dimensions of his injury has a factual component, I will not select a date at this time. It is also possible that the statute of limitations should be considered to have been equitably tolled. Plaintiff has raised issues of incompetence of counsel in both his Motion for a New Trial in Superior Court and in his habeas petition to this Court. Additionally, plaintiffs case is complicated by his illiteracy, borderline mental retardation, and potentially incompetent trial counsel. The resolution of these issues requires factual findings beyond the face of the papers before me, further militating against dismissal. C. Heck, Habeas, and the Implicit Exception to § 1983 Defendants contend that plaintiffs complaint must be dismissed because it “necessarily implies the invalidity of plaintiffs underlying state conviction[ ],” Def. Mem. at 5, in contravention of the Supreme Court’s ruling in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). This position fundamentally misconstrues a well-established Supreme Court precedent, the basic substance of plaintiffs complaint, or both. Unlike the § 1983 actions limited by Heck, plaintiff requests only the opportunity to test DNA evidence currently in the state’s possession. Nothing about this request “necessarily” implies anything about plaintiffs underlying conviction. The results of the testing could be inconclusive or inculpato-ry. Moreover, if testing yields exculpatory results, plaintiffs conviction would stand unless successfully challenged in a separate action, brought at a future date, alleging a different constitutional violation altogether. 1. The Relevant Precedent As the Supreme Court has often noted, habeas corpus and the Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983, are the primary avenues of relief available to prisoners seeking redress for constitutional injury. See, e.g., Hill v. McDonough, — U.S. —, 126 S.Ct. 2096, 2101, 165 L.Ed.2d 44 (2006) (citing Muhammad v. Close, 540 U.S. 749, 750, 124 S.Ct. 1303, 158 L.Ed.2d 32 (2004)); Heck, 512 U.S. at 480, 114 S.Ct. 2364. Both provide access to federal courts, but the two actions differ in scope. Id. In Preiser v. Rodnguez, the Court decided that habeas corpus is the exclusive remedy available for state prisoners who challenge the fact or duration of their confinement, or seek immediate or speedier release. 411 U.S. 475, 488-90, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Because the plaintiff in Preiser sought speedier release from prison, he was prohibited from pursuing his action under § 1983. The court addressed a similar issue in Heck, a case in which the plaintiff was not technically challenging the fact or length of his confinement, but rather was seeking monetary damages. The Preiser decision noted in dicta that actions for monetary damages sought neither immediate nor speedier release and, as such, fell comfortably within the boundaries of § 1983. Although this statement is frequently true, the Heck court concluded that in the case at bar establishing the basis for plaintiffs damages action would necessarily demonstrate the invalidity of his conviction. Heck, 512 U.S. at 481-87, 114 S.Ct. 2364. Accordingly, the court viewed this kind of damages claim to be the functional equivalent of the actions prohibited in Preiser, and held that § 1983 is an inappropriate vehicle for damages actions that necessarily imply the unlawfulness of a prisoner’s conviction or confinement. Id. at 486-87, 93 S.Ct. 1827. In Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005), the Court further elaborated on this approach. In Dotson, the Court considered two challenges by Ohio prisoners to the retroactive application of new, stringent parole guidelines. Both individuals sought to enjoin the state from applying the new parole guidelines to pre-guidelines sentences and requested new hearings. The state of Ohio challenged the inmates’ reliance on § 1983, arguing that habeas was the only appropriate vehicle in this circumstance because the inmates’ motivation in filing the actions was to gain a speedier release from prison. The Court rejected this position, noting that it “jumps from a true premise (that in all likelihood the prisoners hope these actions will help bring about earlier release) to a faulty conclusion (that habeas is their sole avenue for relief).” Dotson, 544 U.S. at 78, 125 S.Ct. 1242. Dotson stressed that the implied exception to § 1983’s coverage existed only in cases where the claimant sought core habeas corpus relief, and not in cases that simply “relate to” such relief. Id. at 81, 125 S.Ct. 1242. In other words, the Court was willing to preempt § 1983 when it operated as the functional equivalent of habeas corpus, delivering release or speedier release to prisoners. Without such an exception, prisoners could side step the restrictions on successive habeas petitions. But in situations where § 1983 relief was distinguishable from habeas, situations where relief would not necessarily invalidate the underlying conviction, courts have no reason to withhold § 1983 relief if the language of the statute applies. Thus, the Dotson respondents’ claims were cognizable under § 1983 because success meant only new eligibility review, not necessarily a speedier release. 2. Plaintiff’s Case Defendants cite the Fourth Circuit’s decision in Harvey I, 278 F.3d at 375, for the proposition that § 1983 is an inappropriate vehicle for seeking DNA testing. There, the Fourth Circuit reasoned that favorable DNA tests would allow the plaintiff to challenge his underlying conviction, thereby circumventing Heck. In contrast, the Eleventh and Ninth Circuits have held that § 1983 is an appropriate vehicle for plaintiffs to seek access to DNA evidence. See Bradley v. Pryor, 305 F.3d 1287 (11th Cir.2002); Osborne v. Dist. Attorney’s Office for Third Judicial Dist., 423 F.3d 1050 (9th Cir.2005). I agree with the Eleventh and Ninth Circuits. As an initial matter, the only inevitable consequence of plaintiffs § 1983 action would be the release of evidence to a laboratory for DNA testing. The results of any such test are uncertain: they could be exculpatory, inconclusive, or even inculpa-tory. “That these scientific possibilities exist, in and of itself, suffices to establish that the asserted right of mere access is not a direct, or for that matter even an indirect, attack on one’s conviction or sentence.” Harvey II, 285 F.3d at 308 (Luttig, J. concurring). See also Osborne, 423 F.3d at 1054. And even if the results of DNA testing were exculpatory, plaintiff is in no way ensured of attaining his freedom: he must still initiate an entirely separate action, asserting a distinct constitutional violation, in order to prevail. See Id.; Bradley, 305 F.3d at 1290; Harvey II, 285 F.3d at 308. As such, there is nothing about plaintiffs action that could ever “necessarily imply” the invalidity of his earlier conviction. Both Heck and Dotson provide further support for this position. In Heck, the Court included two footnotes to help clarify its position on when the relief sought by a prisoner “necessarily” implied the invalidity of a conviction. Heck, 512 U.S. at 487 nn. 6-7, 114 S.Ct. 2364. In the “impermissible” example, the Court described a situation where: “[a] state defendant is convicted of and sentenced for the crime of resisting arrest, defined as intentionally preventing a peace officer from effecting a lawful arrest. He then brings a § 1983 action against the arresting officer, seeking damages for violation of his Fourth Amendment right to be free from unreasonable seizures.” Id. at 487 n. 6, 114 S.Ct. 2364 (citation omitted). Because success in this action would require negating an element of the offense, and therefore invalidating his conviction, § 1983 is not appropriate. Id. In the “permissible” example, the Court explained that a “suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiffs still-outstanding conviction. Because of doctrines like independent source and inevitable discovery, and especially harmless error, such a § 1983 action, even if successful, would not necessarily imply that the plaintiffs conviction was unlawful.” Id. at 487 n. 7, 114 S.Ct. 2364 (citations omitted). Thus, defendants are not prohibited from bringing § 1983 actions that increase their likelihood of gaining release, as long as they do not “necessarily” vitiate the legality of their current confinement. The mere possibility that the tainted evidence might be found admissible later through an exception in the law was enough to show that a defendant’s conviction was not necessarily invalidated. If this example does not necessarily imply the invalidity of one’s conviction, then plaintiffs action, which may actually produce inculpatory evidence, and can only position plaintiff for a future challenge to his conviction, does not necessarily imply much of anything. This position is also supported by the first example, in which the Court emphasized that a finding of “necessary invalidity” required “negating an element of the offense.” Heck, 512 U.S. at 487 n. 6, 114 S.Ct. 2364. The DNA evidence that Wade seeks is even less necessarily vitiating than that: not only may it yet be found inadmissible, it may in fact be inculpatory. Dotson buttresses this point further. In Dotson, as in the present case, plaintiffs sought a new hearing that could potentially expedite their release. As the Dotson Court noted, the only necessary result of their success would be to “speed consideration” of their release, not secure the release itself. 544 U.S. at 75, 125 S.Ct. 1242. In Wade’s case, the connection between his request and any possible release is even more attenuated. Wade’s success in this action does not even necessarily speed consideration of his release. It allows nothing more than access to evidence that may prove to be exculpatory and which may, if exculpatory, permit petitioner to obtain his release through a separate action. Because plaintiffs action does not necessarily imply the unlawfulness of his conviction, it cannot fall within the implied habeas exception to § 1983’s coverage. Consequently, § 1983 is an entirely appropriate medium for plaintiff to raise his claim for access to DNA testing. D. Collateral Estoppel 1. Legal Standard Defendants next argue that collateral estoppel precludes Wade from bringing this action in federal court because he has already been denied relief in state court. While this argument raises an interesting and complicated question, I disagree with defendants and do not find Wade’s claim to be precluded by any earlier judgment. “The federal courts have traditionally adhered to the related doctrines of res judicata and collateral estoppel.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). Under collateral estoppel, an issue may not be re-litigated by either of the original parties if it has been actually and necessarily determined by a court of competent jurisdiction. Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979). This policy helps to conserve judicial resources, relieve parties of the burden of re-litigating settled issues, and prevent inconsistent rulings. See Allen, 449 U.S. at 94, 101 S.Ct. 411. Collateral estoppel is typically applied by federal courts to issues that have been previously litigated in state court in order to promote comity between state and federal courts. See Id. at 95,101 S.Ct. 411; Johnson v. Mahoney, 424 F.3d 83, 93 (1st Cir.2005). See also 28 U.S.C. § 1738 (1948) (establishing that state court judgments shall have the same “full faith and credit” in federal court that they would in courts of that state). These principles apply in § 1983 actions. Johnson, 424 F.3d at 93 (citing Allen, 449 U.S. at 96, 101 S.Ct. 411). However, the principles underlying § 1983 actions and collateral estoppel can conflict in certain cases. “The very purpose of [§ ] 1983 was to interpose the federal courts between the States and the people[ ] as guardians of the people’s federal rights[, and] to protect the people from unconstitutional action under color of state law, ‘whether that action be executive, legislative or judicial.’ ” Mitchum v. Foster, 407 U.S. 225, 242, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972) (citation omitted) (emphasis added). On the one hand, § 1983 was intended to protect the people’s federal rights against transgressions by the state, but on the other hand, federal courts are obligated by the doctrine of collateral estoppel to give preclusive effect to judgments by the very same entities. The legislative history of § 1983 lends only “equivocal” support for the notion that Congress intended to override § 1738 or the common law doctrine of collateral estoppel. Allen, 449 U.S. at 99, 101 S.Ct. 411. Rather than denuding state court judgments of preclusive force, Congress intended for federal courts to step in only when state courts were unwilling or unable to do their jobs. Id. at 100-01, 101 S.Ct. 411. Thus, federal courts may deny preclusive effect to state court judgments only “where state law did not provide fair procedures for the litigation of constitutional claims, or where a state court failed to even acknowledge the existence of the constitutional principle on which a litigant based his claim.” Id. at 101, 101 S.Ct. 411 (emphasis added). This exception balances the Congressional intent of § 1983 with the interest in promoting comity. State courts retain their ability to decide federal constitutional questions without fear of unfettered review by federal courts, and federal courts reserve the power necessary to fulfill § 1983’s mandate, ensuring the protection of federal rights when state courts prove unable or unwilling to do so. When considering collateral estoppel claims that stem from earlier state court judgments, a federal court must look to the preclusion law of the applicable state. See Johnson, 424 F.3d at 93 (citing Kremer v. Chemical Constr. Corp., 456 U.S. 461, 466, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982)). See also § 1738. “Massachusetts courts apply the doctrine of collateral estoppel as it has been described in the Restatement (Second) of Judgments.” Johnson, 424 F.3d at 93 (citing Martin v. Ring, 401 Mass. 59, 514 N.E.2d 663, 664 (1987)). According to the Restatement, the general rule is that “[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties.” Restatement (Second) of Judgments § 27 (1982). “Actually litigated” means that an issue has been properly raised, submitted for determination, and necessarily determined by the earlier decision. See Restatement (Second) of Judgments § 27 cmt. (d). Where, as here, the defendants in the presentation are different from the defendants in the earlier action, the Restatement has carved out an exception when “[t]he issue is one of law and treating it as conclusively determined would inappropriately foreclose opportunity for obtaining reconsideration of the legal rule upon which it was based.” Restatement (Second) of Judgments § 29(7). Comment (i) elaborates further on this exception, stating: When the issue involved is one of law, stability of decision can be regulated by the rule of issue preclusion or by the more flexible rule of stare decisis ... If the rule of issue preclusion is applied, the party against whom it is applied is foreclosed from advancing the contention that stare decisis should not bind the court in determining the issue. Cor-relatively, the court is foreclosed from an opportunity to reconsider the applicable rule, and thus to perform its function of developing the law. Restatement (Second) of Judgments § 29 cmt. (i). This exception may be especially appropriate when state courts make fundamentally legal decisions about unsettled federal rights. 2. Analysis There are two major impediments to applying collateral estoppel to Wade’s § 1983 action. The first issue is that none of the state court decisions ever decided whether Wade had a Due Process right to DNA testing. If the issue was never decided, it cannot have a preclusive effect. Restatement (Second) of Judgments § 27 cmt. (d). The second concern is that none of the state court decisions even acknowledged the constitutional principle upon which Wade based his claim for DNA testing, either explicitly or by implication. Given that a major purpose behind § 1983 was to protect federal rights when state courts refused to do so, this lack of acknowledgment makes the application of collateral estoppel inappropriate for the present case. That Wade’s Fourteenth Amendment claim was never actually decided by the state court decisions is clear from a review of both the motions filed by the parties and the opinions issued by the state courts. When Wade first moved for DNA testing, his motion requested “that the Court order the District Attorney’s Office ... to submit, for the purposes of DNA testing, certain physical evidence which might contain biological materials, such as semen, which could demonstrate his innocence of the charge of which he was convicted.” Def. Ex. F. No legal argument of any kind was made; just the simple request. The Superior Court denied the motion because the presiding associate justice did not find Wade’s affidavit, in which he claimed innocence, to be credible. No legal, much less any constitutional, grounds were cited for the decision. The Superior Court decision presented Wade with a Catch-22. Because Wade had failed to supply evidence supporting his claim of innocence, he was prohibited from testing the DNA evidence which could potentially prove his innocence. Wade raised a Due Process argument for the first time in his Motion for Reconsideration, citing Godschalk, 177 F.Supp.2d at 370, for the proposition that no matter how remote the chance of success, if DNA testing could provide material exculpatory evidence, a criminal defendant has a limited Due Process right to access that evidence for testing. The Superior Court denied both Wade’s Motion for Reconsideration and his Motion for New Trial. In its decision, the court dismissed Wade’s request for reconsideration in four sentences, noting agreement with the earlier court’s judgment that Wade’s affidavit was not credible. Def. Ex. M at 3. With respect to the Motion for New Trial, the court held that trial counsel was not ineffective for failing to seek DNA testing because the available evidence strongly suggested Wade’s guilt. Def. Ex. M at 4-5. At no point did the court even mention Wade’s assertion of a constitutional right to testing. By simply repeating the earlier judgment’s refrain that Wade’s showing of innocence was insufficient to merit DNA review, the opinion strongly suggested that the constitutional claim was not even considered. Significantly, the Due Process right described in Godschalk hinges not on whether the trial evidence suggests innocence, but on whether an exclusionary result from DNA testing would provide material exculpatory evidence. And the determination that Wade’s affidavit asserting his innocence was not credible is largely irrelevant to his § 1983 constitutional claim. Whether or not a defendant “appears guilty” in the absence of DNA evidence suggests very little about the exculpatory value of the evidence or Wade’s entitlement to test it and prove his innocence. The constitutional question is whether exculpatory DNA testing would be enough to call the sanctity of the trial verdict into question. By focusing on Wade’s inability to make an ex ante showing of innocence, the Superior Court failed to give either explicit or implicit consideration to the constitutional question before it. Because the due process argument was so clearly outside the scope of either Superior Court decision, it would make little sense to say that this legal issue was ever actually “decided” by the court, as required by the Restatement (Second) of Judgments § 27. Moreover, given the lack of a written opinion it is impossible to know whether or not the Single Justice considered the issue, let alone decided it. “[I]f there is no showing as to the issues that were actually decided, there is no issue preclusion.” 18 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice & Procedure § 4420 (2d ed.2002). See also United States v. International Bldg. Co., 345 U.S. 502, 505, 73 S.Ct. 807, 97 L.Ed. 1182 (1953); Sweetheart Plastics, Inc. v. Illinois Tool Works, 439 F.2d 871, 873 (1st Cir.1971). In such cases, the burden is on the party asserting preclusion to show that the decision involved actual resolution of the issues. 18 Wright, Miller & Cooper § 4420. See also Lundborg v. Phoenix, 91 F.3d 265, 271-72 (1st Cir.1996); Frederick E. Bouchard, Inc. v. United States, 583 F.Supp. 477, 482-83 (D.Mass.1984). Here, defendants have not attempted to make such a showing. Because I cannot say with confidence that the issue was actually decided in the state court proceedings, it would be fundamentally unjust to preclude Wade from bringing his claim in federal court. As noted above, there is also a second, related reason to withhold preclusive effect from the earlier decisions: Given the mandate of § 1983, federal courts cannot, in good conscience, apply collateral estoppel against a claim raised in state court when the state court never even acknowledged the existence of the constitutional principle on which the claim is based. Allen, 449 U.S. at 100-01, 101 S.Ct. 411. Wade sought permission to test his DNA evidence in three separate actions: his motion for DNA testing, his motion for reconsideration, and his petition to the Single Justice. All three actions were denied by the presiding judge, yet not one mention was made, in any of the opinions, of Wade’s constitutional right to test DNA evidence that could potentially prove his innocence. Nor did any of these decisions include written findings that implied anything about Wade’s Due Process claim. Section 1983 was passed to ensure that individuals had a viable legal forum in which to vindicate them federal rights. Mitchum, 407 U.S. at 240-42, 92 S.Ct. 2151; Allen, 449 U.S. at 98-101, 101 S.Ct. 411. It did not guarantee that “ ‘every person asserting a federal right is entitled to one unencumbered opportunity to litigate that right in a federal district court, regardless of whether that claim has already been decided against him in a full and fair proceeding in state court.” Haring v. Prosise, 462 U.S. 306, 313, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983) (quoting Allen, 449 U.S. at 103, 101 S.Ct. 411). But when state courts fail to even acknowledge the fundamental constitutional principles upon which an individual’s claim is based, the spirit of § 1983 requires that such an opportunity be provided at the federal level. Finally, concerns about giving preclusive effect to state court judgments are exacerbated when such questions concern fundamental rights in unsettled, changing (or open) areas of the law. As explained in Comment (i) of Restatement (Second) of Judgments § 29, requiring preclusion in such cases would deny courts “an opportunity to reconsider the applicable rule, and thus to perform its function of developing the law.” Restatement (Second) of Judgments § 29 cmt. (i). Obviously, any such exception would have to be drawn very narrowly so that the exception would not swallow the rule. For the reasons discussed above, I hereby deny defendants’ motion to dismiss on collateral estoppel grounds. E. Due Process In their motion to dismiss, defendants argue that Wade does not have a Due Process right to DNA testing. More specifically, they assert that Brady is inapplicable because it applies to only “the discovery, after trial[,] of information which had been known to the prosecution but unknown to the defense.” Kutzner, 303 F.3d at 336 (quoting United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)). This position mis-characterizes Wade’s claim for a much simpler, and more easily rebuttable, one. Wade’s argument is that the State violated his Due Process rights by denying him access to potentially favorable evidence. This Due Process right is analogous to Brady, not a literal application of its pretrial guarantee. A fairer rendering of this argument, and one with which this Court agrees, is that the same motivations under-girding Brady, the desire to avoid wrongful convictions by providing access to evidence in the prosecutor’s possession, apply in the post-conviction context. The Supreme Court has often remarked that Due Process rights are fluid and adaptable to the exigencies of a particular factual context. See discussion infra. Brady has been expanded from its limited core to various contexts not specifically contemplated by the Court’s initial holding. See discussion infra. Each of the Brady expansions represents an attempt by the Court to balance the goal of avoiding wrongful convictions without imposing prohibitive costs on the criminal justice process. In some cases, the constitutional concerns override the costs, requiring that a criminal defendant be allowed unfettered access to evidence. In other cases, disclosure requirements are crafted more narrowly to avoid unacceptable costs. In effect, Wade’s argument is that the same balancing test that required procedural safeguards in other contexts requires post-conviction disclosure of DNA evidence in certain cases. I agree. Wade also presents a valid argument, for purposes of a Rule 12(b)(6) analysis, that the State has denied him meaningful access to the courts by withholding access to the requested evidence. The Supreme Court has made clear that individuals have a substantial interest in maintaining access to the courts. This right is of particular importance to prisoners, who are denied access to many other means of recourse available within a democratic system. While the phrase “access to the courts” may conjure images of physical restraint, it concerns not only literal bars, but also regulations that functionally bar defendants from pursuing their claims in court. In the instant case, denying Wade access to DNA evidence makes it functionally impossible for him to challenge the legality of his confinement. Absent favorable results on a DNA test, Wade will not be able to receive meaningful relief through either habeas corpus or state post-conviction proceedings. As with all Due Process rights, Wade’s entitlement is surely not absolute and can be trumped by prohibitive costs that may inhere in his request. But no such costs have been asserted by defendants thus far, though further litigation may disclose them. 1. Brady Rights Because DNA testing is still relatively new, there are few cases that have considered whether a post-conviction right to DNA testing is required by the same Due Process principles that motivated Brady. Neither the Supreme Court nor the First Circuit has ruled on the constitutional significance of DNA testing. Thus, Brady’s applicability to DNA testing, be it in the pre-trial or post-conviction context, is an issue of first impression. Drawing on the Supreme Court’s access to evidence cases, I find that the Due Process principles underlying Brady, at least for the purposes of a Rule 12(b)(6) analysis, support a DNA testing right in both the pre-trial and post-conviction settings. a. Brady’s Holding and Its Applicability to DNA Testing Brady marked the first time the Court had imposed an affirmative obligation on prosecutors to provide defendants with evidence favorable to their case. Under the Court’s ruling, all evidence favorable to the defense must be made available upon request, as long as it was material to either guilt or punishment. Brady, 373 U.S. at 87, 83 S.Ct. 1194. Disclosure is required by the Due Process Clause of the Constitution, irrespective of the good or bad faith of the prosecutor. Id. Over time, Brady’s disclosure requirements have expanded. In Agurs, the Court held that where the evidence is “obviously of such substantial value to the defense” prosecutors have a constitutional duty to turn it over, even in the absence of a request. 427 U.S. at 110, 96 S.Ct. 2392. The prosecution is also required to reveal the contents of plea agreements with major government witnesses. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The Court’s decision in United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), made clear that Brady included impeachment evidence, and Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), established that the disclosure obligations included information held by police but unknown to prosecutors. Although Brady’s holding specifically contemplated evidence of known exculpatory value, its central premise has been adapted to evidence of uncertain exculpatory value, such as the untested DNA evidence in this case. In United States v. Valenzuela-Bemal, the Court recognized that defendant had a legitimate interest in interviewing the witnesses who had been deported by the government, despite the fact that then- testimony may not be exculpatory. 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). In Pennsylvania v. Ritchie, defendant sought review of complainant’s confidential records held by the state’s Children and Youth Services (“CYS”) agency. 480 U.S. 39, 43-45, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). The Court balanced the defendant’s entitlement to exculpatory material with the uncertain content of the files and the victim’s interest in confidentiality by requiring the trial court to conduct an in camera review of the files. Id. at 58-59, 107 S.Ct. 989. If the in camera review found “information that probably would have changed the outcome of [the] trial,” the court would have to release it to the defendant to use in his defense. Id. at 58-60, 107 S.Ct. 989. Similarly, in Arizona v. Youngblood, the Court noted that granting defendant’s expert access to blood and semen evidence was part of the state’s compliance with Brady. 488 U.S. 51, 55, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). The Court also held that defendants had a Due Process interest in “evi-dentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” Id. at 57, 109 S.Ct. 333. Bad faith destruction of such evidence violates the Constitution, even though its exculpatory value is highly uncertain. Each of the above-cited decisions imposed certain necessary restrictions on defendants’ Due Process right to examine potentially exculpatory evidence. Thus, in Valenzuela-Bemal, the Court conditioned the right on a showing of materiality. In Ritchie, the Court required the trial court to conduct an in camera review in order to minimize any potential breach of confidentiality. And in Youngblood, the Court required a showing of “bad faith.” None of these limitations applies to Wade’s case. There are no doubts regarding the potential materiality of the evidence, no conflicting confidentiality interests, and no issues with evidence that has been lost. Wade’s DNA evidence is currently being preserved by the State and is presumably available for testing, if required by this Court. Thus, it is clear from Court precedent that Wade has a right to DNA testing under Brady. If there is any bar to Wade’s accessing the evidence, it must be related to the post-conviction posture of his claim. b. Brady, Wrongful Conviction, and Due Process The Supreme Court has declared that “ ‘due process,’ unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstance[ ].” Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961)). On the contrary, Due Process “ ‘is flexible and calls for such procedural protections as the particular situation demands.’ ” Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 12, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). This flexibility is “necessary to gear the process to the particular need; the quantum and quality of the process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error.” Id. at 13, 99 S.Ct. 2100 (citation omitted). In order to determine the appropriate scope of Due Process rights, the Court must consider, as it did in Brady, “(1) the nature of the private interest at stake, ... (2) the value of the additional safeguard, and (3) the adverse impact of the requirement upon the Government’s interests.” United States v. Ruiz, 536 U.S. 622, 631, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002). See also Wolff v. McDonnell, 418 U.S. 539, 560, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). While Due Process does not require that every conceivable step be taken, irrespective of cost, “ ‘to eliminate the possibility of convicting an innocent person,’ ” Herrera v. Collins, 506 U.S. 390, 399, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (quoting Patterson v. New York, 432 U.S. 197, 208, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)), this interest is profoundly important and is the driving force behind Brady. See, e.g., Bagley, 473 U.S. at 675, 105 S.Ct. 3375 (stating that Brady’s purpose is “to ensure that a miscarriage of justice does not occur”). The interest in ensuring verdicts worthy of confidence is essential not only to Brady, but to its various progeny. As the Court noted in California v. Trombetta, the cases granting “constitutionally guaranteed access to evidence” all derive from the joint constitutional imperatives of “protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system.” 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). See also Agurs, 427 U.S. at 112, 96 S.Ct. 2392 (recognizing “our overriding concern with the justice of the finding of guilt”); Kyles, 514 U.S. at 434, 115 S.Ct. 1555 (stating that the relevant issue is “whether in [the absence of exculpatory evidence defendant] received a fair trial, understood as a trial resulting in a verdict worthy of confidence”). In each of the access to evidence cases, this interest in fundamental fairness trumped the adverse impact imposed on the government by new procedural requirements. c. Due Process Analysis The original “access to evidence” right in Brady derived from the Court’s recognition that defendants possess a substantial interest in obtaining favorable evidence, which outweighs the minimal adverse impact on prosecutors. After conviction, the defendant’s interest in accessing evidence may be reduced, and the government’s costs in providing evidence may be higher, but this does not imply the absence of a post-conviction Due Process right — just the striking of a different Due Process balance. As an historical matter, Brady applied to pre-trial disclosure requirements. Its focus on pre-trial obligations stems from the criminal trial’s traditional status as the determinative adjudication of guilt or innocence. Traditionally, the Court has been reluctant to reconsider trial determinations of guilt or innocence because of both the cost attendant to allowing such review, see Schlup v. Delo, 513 U.S. 298, 321, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Herrera, 506 U.S. at 401, 113 S.Ct. 853, and doubt that subsequent determinations would improve reliability. See Herrera, 506 U.S. at 403, 113 S.Ct. 853 (“[T] he passage of time only diminishes the reliability of criminal adjudications.”); McCleskey v. Zant, 499 U.S. 467, 491, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (“[W]hen a habeas petitioner succeeds in obtaining a new trial, the ‘erosion of memory and dispersion of witnesses that occur with the passage of time’ prejudice the government and diminish the chances of reliable criminal adjudication.”) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 453, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986) (plurality opinion)). Although the same interest that motivated Brady — avoiding the wrongful conviction of the innocent — still applies in the post-conviction setting, the chance of reliable adjudication may decrease in a subsequent trial because the truth-finding value provided by new evidence is outweighed by the inevitable erosion of memory and dispersion of witnesses that happens over time. This is particularly true where the evidence comes from a newly emergent witness, as in Herrera, 506 U.S. at 415, 113 S.Ct. 853. The perceived unreliability of most new evidence, such as new witness testimony, makes it unlikely that a new trial would provide a substantially more accurate determination of guilt or innocence. Absent an improved determination, it is hard to justify the added cost incurred by the government, especially if this potential right were extended to every individual convicted of a crime. Thus, before the advent of DNA technology, the questionable value of a Brady safeguard for defendants and the substantial cost of implementing the safeguard made restricting Brady to the pretrial context more understandable. DNA evidence fundamentally alters the traditional Due Process calculus. In cases where DNA evidence could have exculpated a defendant and was not utilized at trial, one can no longer describe the earlier adjudication as deciding guilt or innocence “within the limits of human fallibility.” Herrera, 506 U.S. at 401, 113 S.Ct. 853. The “limits of human fallibility” have advanced, making it possible to improve on earlier decisions, even after accounting for “erosion of memory” and “dispersion of witness” concerns. As a result, the adjudication at trial is no longer the most reliable determination of guilt or innocence possible for this limited set of cases. Recognition of a Due Process right to access may impose administrative judicial costs as well as adversely impairing the government’s interest in finality. But none of these costs will be significant, particularly in light of the interests counterbalancing them. The Supreme Court has explained that the interest in finality is, in reality, an amalgam of several interests, namely: retribution, deterrence, the quality of judging, and the interest of victims in finality. Calderon v. Thompson, 523 U.S. 538, 555-556, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998). None of these interests is adversely affected by allowing for DNA testing in cases where an exclusionary test result would reveal a fundamental defect in the trial verdict. DNA testing does not itself attack the finality of a judgment. Attacks on a conviction can only occur if a DNA test yields exculpatory results. In these cases, the State should have grave concerns about the fairness and accuracy of the original verdict. When the State loses faith in a trial verdict, it no longer has valid reason to detain an individual. Retribution and deterrence are not served by continued incarceration, and judging is not improved by further detention. Even the victims’ interests are not served. Victims may have an interest in moving on, but they do not have an interest in imprisoning the wrong person. On the contrary, the State’s interests may actually support the release, or at least retrial, of such individuals. See Herrera, 506 U.S. at 398, 113 S.Ct. 853 (citing United States v. Nobles, 422 U.S. 225, 230, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975)) (“[T]he central purpose of any system of criminal justice is to convict the guilty and free the innocent.”); Schlup, 513 U.S. at 325, 115 S.Ct. 851 (quoting In re Winship, 397 U.S. 358, 372, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)) (Harlan, J. concurring) (“[C]oneern about the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system. That concern is reflected, for example, in the ‘fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.’ ”). In accordance with the State’s interest in doing justice, exculpatory DNA results may allow the state to both free the innocent and convict the guilty. Not only have 183 individuals been exonerated thus far by DNA evidence, but almost 30% of the exonerations have led to the apprehension of the real perpetrator. Scarce administrative and judicial resources are also not threatened by post-conviction DNA testing. In cases where the convicted individual has agreed to foot the bill for testing, prosecutors need only grant access to DNA evidence already in their possession. If the test provides results that are inculpatory or inconclusive, the defendant will provide no new tax on resources. And if the test results are exculpatory, the State may willingly release the individual. Even if a new trial is necessary, our society has clearly expressed a value judgment that a reliable determination of guilt or innocence is worth the cost of a fair trial. Because the individual interests implicated by DNA testing so profoundly outweigh the adverse impact on the state, I find that t