- The Washington Times - Wednesday, April 18, 2001

A ruling this week by a federal judge in Alexandria, Va., saying felons have a constitutional right to DNA testing is not binding on other courts or pending cases, but the decision is being closely monitored by Congress, federal and state legislators, and prosecution and defense lawyers.
U.S. District Judge Albert V. Bryan Jr. on Monday said prosecutors in Fairfax County violated the civil rights of convicted rapist James Harvey in refusing to order DNA testing on evidence from his 1990 rape and sodomy trial. Harvey, sentenced to 25 years in prison, has claimed he was wrongly convicted of the crime.
In a decision described as the first of its kind, Judge Bryan said the convicted felon had a constitutional right to the tests under the due process provisions of the 14th and 5th amendments and ordered that the DNA lab work be performed. He said Fairfax County Commonwealths Attorney Robert F. Horan Jr. violated Harveys civil rights by refusing to conduct the tests.
"Denying the plaintiff access to potentially powerful exculpatory evidence would result in a miscarriage of justice," Judge Bryan wrote.
Former U.S. Attorney Joseph diGenova, a litigation expert who also served as an independent counsel, said Judge Bryans ruling was "right on the money."
"When you have this type of scientific evidence available that can establish guilt or innocence or will certainly credit or discredit material evidence, it is simply incomprehensible the state would not test for this evidence no matter when it is discovered," the former prosecutor said. "I dont believe you can ever refuse to look at evidence that is scientifically scrutible. Law enforcement, which needs to have this kind of credibility, is not supposed to have an interest in any particular individual but only in the evidence."
Mr. diGenova said that because of Judge Bryans decision, he expects other courts will be forced "by virtue of civil rights and other statutes" to examine similar challenges. He said states who refuse run the risk of litigating a question that should not end up in a courtroom.
Judge B. Michael Dann, a retired Arizona jurist who now serves as a consultant for the National Center for State Courts in Williamsburg, said the ruling by Judge Bryan follows a growing moment across the country to expand DNA testing .
"There is a precedent and DNA testing has been ordered for both state and federal courts," Judge Dann said. "Sometimes DNA testing seals a fellows fate, and some cases have resulted in exoneration. With these tests now available, I think the message already has been sent that they should be used."
In acknowledging that his decision had expanded the due process clause, Judge Bryan argued that due process was "not a technical conception with a fixed concept unrelated to time, place and circumstance." Describing the process as "flexible," he called for "such procedural protections as the particular situations demands."
The decision gives felons an opportunity to challenge convictions in federal court through a civil rights complaint, which is what Harveys attorneys did after a request for DNA testing by the New York-based Innocence Project was refused. His case was brought under a post-Civil War statute allowing citizens to sue in a federal court on a constitutional question.
Some believe that expanding the right to DNA testing could clog the court system with frivolous civil rights suits that would needlessly reopen cases and inflict grief on the victims and their families.
"I simply do not understand the fear that this type of evidence will be scrutinized," Mr. diGenova said, adding that many of the cases already reviewed on similar requests by inmates have generally confirmed guilt.
Maryland recently passed legislation that makes DNA testing available by court petition for people convicted of violent or sex crimes. The law guarantees inmates hearings if the results are in their favor.
In Virginia, a new bill would allow anyone convicted of a felony to apply for DNA testing either on newly discovered evidence or evidence that had previously been tested but for which there is a new, more accurate test available. Gov. James S. Gilmore III, who is expected to veto the bill, tried to limit it to convicts who pleaded not guilty but were convicted. He also wanted a three-year limit after conviction for applying for the tests.


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