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| Lawyers get ready to fight DNA ruling |
| By USA Today |
| Published: 01/29/2002 |
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Lawyers who specialize in exonerating convicts say they'll fight to overturn a decision last week by a federal appeals court that found inmates have no constitutional right to DNA testing that could prove their innocence. The ruling marked the first time that an appeals court had considered the notion that inmates have a right to DNA testing, which proponents say has helped exonerate 100 convicts since 1989. Legal scholars and a judge who decided the case say the issue, which is critical to future DNA-based exonerations, appears headed to the U.S. Supreme Court. A three-judge federal appeals panel in Richmond, Va., rejected a request from James Harvey, who was convicted of rape and sodomy in 1990, for access to evidence for DNA testing. The unanimous opinion overruled a 2001 decision by a lower court judge who found that the Fairfax County, Va., prosecutor violated Harvey's constitutional rights to due process by not giving him access to the evidence. That was the first federal court to recognize a right to DNA tests, which compare the unique genetic code carried in body fluids to samples left at crime scenes. Neufeld says he'll decide soon whether to seek a hearing before the full appeals court or take the case directly to the Supreme Court. Harvey and another man were convicted of sexually assaulting a mother of three. DNA tests done at the time were unable to match Harvey or his accomplice to the rape. Harvey's attorney argued that improvements in DNA testing since 1990 make it likely that new tests would show whether DNA from the crime scene matched that of either man. But the appeals panel noted that there was ''other substantial evidence'' of Harvey's guilt, including testimony from the accomplice and threats by Harvey against a friend who testified against him. ''This evidence was already subjected to DNA testing using the best technology available'' then, wrote J. Harvie Wilkinson III, chief judge of the Court of Appeals for the 4th Circuit. ''Establishing a constitutional due process right . . . to re-test evidence with each forward step in forensic science would leave perfectly valid judgments in a perpetually unsettled state.'' Wilkinson said states could create such rights, rather than rely on courts to ''fashion (them) out of whole cloth.'' A dozen states, including Virginia, have passed laws allowing post-conviction DNA tests. Neufeld says Harvey, serving a 40-year term, also is seeking tests through the state. |
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