Post Conviction Petition Makes Insufficient Showing of “Newly Discovered Evidence”; and Does Not Establish Statutory Basis For New DNA testing

Fort v. State, Minn.S.Ct., 4/17/2013.  The court continues its unrelenting dismantling of the post conviction statute, this from a state that was one of the first states to enact a post conviction statute back when the U.S. Supreme Court seemed to say that one was constitutionally required. Two thirds of the courts opinions this year have been reviews of post conviction petitions.

The bare facts:  On December 15, 1990, someone broke into the home of eleven year old Marcus Potts, and stabbed him forty-four times, causing his death, read more here.  A jury found Mr. Fort guilty of first degree premeditated murder.

Mr. Fort filed this post conviction petition alleging newly discovered eyewitness testimony which he claimed buttressed his alternative perpetrator theory; and requesting another round of DNA testing on an exemplar found at the crime scene.  The post conviction court summarily denied the petition; that court said that Mr. Fort had not meet the requirements for receiving an evidentiary hearing on a claim of newly discovered evidence.

Now, a brief detour:  while the jury was deliberating someone called Mr. Fort’s attorney and said that P.R. had confessed to the murder.  The trial court heard testimony on this confession after which it denied Mr. Fort’s request for a new trial.  This go round, Mr. Fort produced an affidavit from A.Z.  Z. said that he had been with both Mr. Fort and P.R. on the evening of the murder, that he had last seen Mr. Fort at 10:15 p.m. and had last seen P.R. at 11:25 p.m.  In addition. Z said that the day after the murder P.R. told Z about the murder and that P.R. “seemed shook up” about it.  The post conviction court said that Z’s affidavit, even if true, did not contain direct evidence of Mr. Fort’s guilt or innocence.

The court uses a four part test to consider claims of newly discovered evidence.  Rainer v. State, 566 N.W2d 692 (Minn. 1997).  The very first part asks whether Mr. Fort or his lawyer knew of this evidence.  Oops.  Z’s affidavit says that he was with both P.R. and Fort so Justice Paul Anderson concludes that Mr. Fort had to have known of this evidence for lo these many years, back to the night of the offense.  This alone would have supported denial of the petition but the Justice goes on to conclude that he hadn’t met any of the four parts of the test. 

Mr. Fort also sought to have an exemplar taken from a smear (of some sort) found at the murder scene tested for DNA.  There had been testing of the exemplar already.  Testing a year after the murder, in 1991, showed that the exemplar contained blood but no other identification could be made.  In 2007 there was an attempt to retest this exemplar with new DNA technology but the sample “was found to be either nonexistent or too small to test.”  The practicalities aside, in his petition Mr. Fort did not claim that thee was any newer DNA technology available that would make testing either possible or practicable.  The post conviction statute that authorizes DNA testing requires a showing that the exemplar was not subject to testing because, in this case, the technology for testing wasn’t available.  Minn.Stat. 590.01, subd. 1a.  Since Mr. Fort didn’t even allege such new technology he is not entitled to the testing.