A federal judge in Alexandria ruled yesterday that felons have a constitutional right to DNA testing, and he ordered lab work for a Fairfax inmate serving a 25-year sentence for a rape he claims he did not commit.
U.S. District Judge Albert V. Bryan Jr. said the Fairfax County prosecutor violated the civil rights of James Harvey by refusing to allow testing on evidence left from Harvey's 1990 rape and sodomy trial. It was the first decision of its kind in the country.
"Denying the plaintiff access to potentially powerful exculpatory evidence would result in . . . a miscarriage of justice," Bryan wrote in a 13-page opinion.
Harvey brought his case under a post-Civil War civil rights statute that allows citizens to sue state and local officials in federal courts for constitutional violations. Bryan found that Commonwealth's Attorney Robert F. Horan Jr. (D) denied Harvey's right to due process under the 14th and 5th amendments by refusing the test.
A district judge's decision is not binding on other courts, but this case is being closely watched because Bryan is the first federal judge to issue such an order.
Bryan's decision comes as Congress and state legislatures across the country are struggling with the issue of post-conviction DNA testing. Both the Virginia and Maryland legislatures passed bills this year granting access to the lab work. But Maryland's bill is limited to certain crimes, and Virginia's is likely to be vetoed by Gov. James S. Gilmore III (R). The District does not have a DNA testing law.
The Harvey case offers inmates another avenue by allowing them to go to federal courts. "It is an important positive step," said Lawrence Marshall, who heads Northwestern University's Center on Wrongful Convictions. "It will provide national access [to DNA testing] through the courts."
DNA testing has exonerated more than 80 people nationwide, but inmates in most of the country must depend on the goodwill of prosecutors for access to evidence that might clear them. In Harvey's case, the New York-based Innocence Project asked Horan to consent to testing, but the Fairfax prosecutor declined.
Horan said that he had not seen the judge's ruling but that he was surprised by it. He called the 1990 attack "one of the most brutal rapes we've ever had." He declined to comment further until he spoke with his attorney.
Horan had argued that DNA testing would not prove anything because the victim was attacked by two unknown men, and trial testimony suggested that at least one did not leave genetic material. Horan's decision led to the Harvey case becoming the first such civil rights suit to reach a judge.
"These folks weren't concerned with truth and justice," said Innocence Project co-founder Peter Neufeld, Harvey's lead attorney. "They're interested in sustaining a win."
The prosecutor has said that his office allows DNA testing in appropriate cases, but Bryan noted in his opinion that Fairfax has never found an appropriate case.
Harvey's attorneys argued, and Bryan agreed, that the test could be decisive if it yielded certain results -- for example, if the laboratory identified DNA from two men and neither of them was Harvey.
Bryan ordered Horan to send all the evidence to the Virginia State Laboratory for testing.
Under federal rules, Horan and his attorney in this case, Jack Gould, have 10 days to seek a stay of that order and 30 days to appeal.
"I'm studying the decision and will be talking with my client to decide how to proceed," Gould said.
If Horan appeals, the case will be reviewed by the conservative 4th U.S. Circuit Court of Appeals, which traditionally has been unsympathetic to post-conviction claims of innocence, so the future of Bryan's ruling is uncertain.
Neufeld said he hopes the state will test the evidence without further litigation. "We are very pleased," he said. "There is no doubt that this case will be used across the country, wherever prosecutors are recalcitrant."
The civil rights statute that Neufeld and his team used is often cited in cases of police brutality. Harvey's attorneys turned to it after previous lawyers had missed a filing deadline in the more common criminal appeals process. Neufeld argued that Harvey's right to due process was infringed on because he was denied access to potentially exculpatory evidence.
Bryan acknowledged in his opinion that his decision pushes the due process clause into a new area, but he wrote that "due process is not a technical conception with a fixed concept unrelated to time, place and circumstances. It is flexible and calls for such procedural protections as the particular situation demands."
But prosecutors worry that a blanket right to DNA testing will flood the courts with frivolous appeals and cause anguish to victims when long-settled cases are needlessly reopened. Experts estimate that about half of all post-conviction DNA tests have confirmed guilt.
"There needs to be some balance," said Arlington Commonwealth's Attorney Richard E. Trodden. "What if you have a thousand people who witnessed the deed and one drop of blood that hasn't been analyzed?"
The long-term significance of Bryan's decision rests on the appeals courts and Congress. Sen. Patrick J. Leahy (D-Vt.) recently introduced the Innocence Protection Act, which would guarantee all inmates access to DNA testing that could exonerate them. But a similar bill died last year, and this year's version faces serious opposition.
"This is a new set of issues that should go up to the Supreme Court," said Yale University law professor Akhil Amar. "The law 15 or even 10 years ago wasn't focused on this."
Staff writer Tom Jackman contributed to this report.
