by David Stout, New York Times
WASHINGTON - Overturning a lower court ruling that drew national attention, a federal appeals court in Virginia has refused to allow a man who was convicted 12 years ago of sex crimes to have DNA tests he contends would exonerate him.
In ruling against the man, James Harvey, the three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, held that the defendant had not shown that the prosecutor violated his rights by refusing him access to DNA testing.
Mr. Harvey and another suspect were convicted by a Fairfax County jury in 1990 of the rape and sodomy of a woman who was dragged into a woods and assaulted a year earlier. Mr. Harvey was sentenced to consecutive terms of 25 years for rape and 15 years for sodomy.
In the unanimous ruling, which was issued on Wednesday, the panel noted that, under the admittedly less precise science available at the time, neither Mr. Harvey nor his co-defendant could be excluded as the rapists. Moreover, the panel said, “there was other substantial evidence of Harvey’s guilt.”
The other defendant testified that Mr. Harvey had instigated the attack, and another prosecution witness maintained that Mr. Harvey had admitted his role. The victim heard one assailant call another “Harv,” the judges noted.
The panel overturned a ruling last year by Judge Albert V. Bryan Jr. of Federal District Court, who found that Mr. Harvey did have a right, under the due process clause of the Constitution, to have access to DNA evidence, and an accompanying right to test the evidence using technology that was unavailable at the time of his trial.
Judge Bryan’s ruling had attracted wide attention among prosecutors and defense lawyers alike because it might have been the first to specifically define a defendant’s rights regarding DNA, the material in a cell nucleus that contains a person’s genetic code. DNA testing has been increasingly used in criminal cases to establish identities through samples of blood, semen and tissues. Other district courts have handed down similar rulings in recent months.
The finding comes after DNA testing has been used to free scores of wrongly convicted people, some of them imprisoned for years and some from death row. In many of those cases, however, the police and prosecutors were later found to have mishandled or concealed evidence that might have helped a defendant.
“But there is no newly discovered evidence in this case,” Chief Judge J. Harvie Wilkinson III wrote in an opinion joined by Judges Paul V. Niemeyer and Robert B. King. “Instead, Harvey seeks to subject existing biological evidence to new DNA testing. This evidence was already subjected to DNA testing using the best technology available at the time Harvey’s conviction became final.”
To accept the defendant’s argument and establish a due process right to retest evidence with each advance in forensic science “would leave perfectly valid judgments in a perpetually unsettled state,” the panel held. “This we cannot do.”
Jack L. Gould, the lawyer representing the Fairfax County prosecutor, Robert F. Horan Jr., said today: “The evidence pointing to Mr. Harvey having committed the crime is quite substantial. We’re not dealing with an innocent man here.”
The victim, a mother of three, was assaulted near a highway south of Washington. She was severely beaten. “We could have had a homicide here,” Mr. Gould said.
The ruling from the Fourth Circuit applies only to the federal courts within the circuit, in Maryland, Virginia, West Virginia, North Carolina and South Carolina. The circuit is widely acknowledged as perhaps the most conservative in the country, but Mr. Gould rejected any suggestion that its philosophical bent played a part in the ruling. “The court did a very thorough analysis of all the issues,” he said.
But Peter J. Neufeld, the co-director of the New York-based Innocence Project who represented Mr. Harvey, said there was no reason not to give him the DNA testing he sought. “I have no idea if Mr. Harvey is innocent or guilty,” Mr. Neufeld said.
He said he might appeal the panel’s ruling to the full Fourth Circuit, or try to persuade the Supreme Court to consider the issues raised in the Harvey case.
Mr. Neufeld said the ruling was very disappointing. “All we’re talking about is getting to the truth,” he said, adding that Mr. Harvey’s defense lawyers were willing to pay for the tests he sought. “We’re the court of last resort for people like Mr. Harvey, who assert their innocence and want a chance to prove it.”
If the Fourth Circuit panel’s position prevailed across the country, Mr. Neufeld contended, the people who could be exonerated by DNA testing “would continue to languish in prison or lose their lives through execution.”
In its ruling, the panel suggested that state legislatures might expand the rights of defendants regarding DNA testing if they so choose. Or perhaps, as Judge King suggested in a footnote, the issue of whether a defendant has a due process right to DNA testing may be a question for the highest tribunal.
“If any such right exists, it must be recognized by judges of a higher pay grade than those of this court,” Judge King wrote.