- The Washington Times - Saturday, March 30, 2002

RICHMOND (AP) The 4th U.S. Circuit Court of Appeals has refused to revisit the question of whether inmates have a constitutional right to DNA testing to try to prove their innocence.

But two judges on the appeals court wrote concurring opinions Thursday that were generally favorable to the notion that inmates should be allowed to seek such tests.

Earlier this year, a three-judge panel on the court reversed a lower court judge who had ruled that James Harvey, convicted in a 1989 sexual-assault case in Fairfax County, had a constitutional right to seek new, more sophisticated DNA tests that he argued would bolster his claim of innocence.

Since then, a Fairfax County judge, under a new law passed by the Virginia General Assembly, ordered the tests.

Still, Harvey's attorneys asked the federal appeals court to reconsider its decision. They declined, citing the fact that the state judge already had granted the tests.

But Judge J. Michael Luttig took the occasion to write a concurring opinion, saying that inmates do indeed have a constitutional right to post-conviction DNA testing.

He wrote that when new, sophisticated DNA tests can conclusively prove guilt or innocence, "then grave harm would come to the Constitution were it to be dismissively interpreted as foreclosing access to such evidence under any and all circumstances."

Chief Judge J. Harvie Wilkinson III said making DNA tests a constitutional right would "deaden the life-force of democracy" by usurping the role of state courts and state legislatures in determining how and when inmates should be allowed access to DNA tests.

He said the fact that a state judge ordered the tests in Harvey's case is evidence that the states can handle the issue more adeptly.

He also suggested that federal courts might be forced to step into cases in which the states refuse such tests to an inmate.

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