- The Washington Times - Tuesday, February 5, 2002

Even a layman would be shocked at the idea that government could imprison after new technological evidence unavailable at trial could dispositively prove an inmate's innocence. It smacks of the pope's punishment of Galileo for teaching against the scientific inerrancy of the Bible. Yet that is the scripture and mood of the decision by the U.S. 4th Circuit Court of Appeals last month in Harvey vs. Horan (Jan. 23, 2002).

The United States Supreme Court should liberate constitutional law from such Dark Ages doctrine.

Before recent advances in DNA testing, on April 30, 1990, James Harvey was convicted of rape and sodomy by a Virginia jury and sentenced to 40 years of incarceration. Conventional serology testing on items recovered from the rape kit showed spermatozoa on the victim's mouth smear, vaginal smear, and thigh smear, and on pantyhose and in two swab samples. Neither Harvey nor his co-defendant could be excluded as culprits based on the then prevailing state of DNA art, i.e., Restriction Fragment Length Polymorphism for cross-word puzzle insomniacs. Other evidence also implicated Harvey.

Science characteristically raced to develop more accurate Short Term Repeat(STR) DNA testing while the law in Harvey's case dawdled, reminiscent of the 1926 Scopes "Monkey Trial." In 1996, the Innocence Project, sporting the talented duumvirate of Barry C. Scheck and Peter J. Neufeld, approached Virginia's Commonwealth Attorney's Office as Harvey's intercessor.

Biological evidence retained from Harvey's trial was sought for STR DNA testing at no cost to the government. According to Harvey, if the results showed either that he was not the sperm source on the victim's mouth smear or two exculpatory genetic profiles were gleaned from the vaginal smears or pantyhose, then a solid foundation for proving his innocence would be erected. Responding with lead-footed promptitude, the Commonwealth denied the DNA testing request in 1999.

Harvey marched into federal district court inspired by the thrilling teaching of the Supreme Court in Berger vs. United States (1935) that the government's duty in criminal prosecutions is not to win cases but to see "that justice shall be done." He neither alleged government wrongdoing nor evidentiary flaws in his decade-old conviction. But even when a past conviction and imprisonment are constitutionally irreproachable because standing on the best science then available to the prosecutor and jurors, said Harvey, due process prohibits continuing imprisonment whenever later and more reliable scientific evidence discredits the guilty verdict.

Government enjoys no legitimate interest in perpetuating injustice once it becomes known. Thus, Harvey claimed a constitutional right of access to Virginia's biological evidence to conduct DNA testing with the new STR technology. It could prove his innocence and prospectively gain him freedom from an unwitting miscarriage of justice under his constitutional theory of due process.

The district court upheld the claim, but the court of appeals reversed. Writing for a three-judge panel, the customarily infallible Chief Judge J. Harvie Wilkinson III maintained that Harvey's constitutional claim would invalidate a final state court conviction, and thus was barred by thicket of procedural technicalities. The chief judge, however, stumbled. Harvey was not challenging legal waters long over the dam. His constitutional claim was entirely forward-looking: namely, that due process is violated when government persists in punishing persons whom new science has exonerated.

Government should not be permitted to block the most reliable contemporary science in the administration of criminal justice simply to avoid bother like flies in the kitchen, Harvey urged.

Chief Judge Wilkinson also worried over creating a "general constitutional right for every inmate to continually challenge a valid conviction based on whatever technological advances may have occurred since his conviction became final." That daunting prospect, however, was not at issue. Only new science coupled with a strong evidentiary likelihood of discrediting convictions was the locomotive of Harvey's due process claim.

Wilkinson further likened scientific advances to changes in the law expounded by the Supreme Court. Since the latter do not invariably apply retroactively to upset final criminal judgments, neither should the former.

But interpreting the Constitution and statutes is more an art than a science, and new interpretations generally do not impugn trial evidence of an inmate's guilt beyond a reasonable doubt. And where they do, the high court has chorused in favor of "actual innocence" constitutional claims even if belatedly advanced, especially for death row inmates.

Suppose an inmate's conviction rested on Russian geneticist Trofim D. Lysenko's prevailing theory of the inheritability of acquired characteristics. Gregor Mendel's contrary theory then overtakes Lysenko in the scientific world, and establishes innocence. Is the Constitution to shut its eyes to what all the world knows as scientific fact, and permit the inmate to rot in prison for the sake of finality alone? It is heralded because it generally advances justice and reliable fact-finding; when it wars with these twin majesties, however, it should be swept from the stage.

The law admittedly seeks different albeit legitimate objectives than scientific truth. "Pop" science is inadmissible in litigation as a snare and delusion. And to make the law as trail blazing as science would undermine stability and predictability. But the Supreme Court should be frightened by the recognition that if science were as implacably backward-looking as the Harvey decision, we would still be living with pre-Newtonian physics.

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