Federal court rules that rapist has right to DNA test.

Prosecuting attorneys in a controversial Virginia rape case will appeal a federal judge's ruling that the man convicted of the crime 11 years ago has a constitutional right to have evidence tested for DNA.

In a ruling that both sides expect may go to the U.S. Supreme Court, Senior Judge Albert Bryan Jr. of the Eastern District of Virginia ordered the commonwealth's attorney's office of Fairfax County to release, for scientific testing, evidence related to the case of James Harvey, who is now serving a 25-year prison sentence for a 1989 rape. Harvey filed suit under 42 U.S.C. [sections] 1983, a federal civil rights statute, claiming that the prosecutor had denied his constitutional rights by refusing to allow DNA testing of the evidence. (Harvey v. Horan, No. 00-1123-A (E.D. Va. July 7, 2000).)

Harvey was convicted of rape and forcible sodomy on April 30, 1990. DNA tests had been conducted on the evidence in 1989 when, as Harvey's lawyer, Peter Neufeld, said, DNA testing was "in its infancy." The technology is now more advanced and could yield results where the previous tests failed.

Bryan ruled in April that Harvey "has a due process right of access to the DNA evidence and to conduct DNA testing upon the biological evidence, as such evidence could constitute material exculpatory evidence." Bryan based his ruling on the 1963 U.S. Supreme Court case Brady v. Maryland, which held that suppression of evidence by prosecutors violates due process. (373 U.S. 83 (1963).)

Bryan wrote, "One purpose of Brady is to ensure that a miscarriage of justice does not occur.... Here, denying the plaintiff access to potentially powerful exculpatory evidence would result in such a miscarriage of justice."

The prosecutor's office has not turned over the evidence as ordered by the judge pending an appeal. The office filed a notice of appeal less than a week after Bryan's ruling and is seeking a stay of the order.

Commonwealth's Attorney Robert Horan said his office routinely tests evidence in cases where there is a showing that such testing will prove a defendant's innocence. But Bryan wrote that the prosecutor "has not noted even one actual case where he implemented this policy."

Horan cited the high cost and complexity of DNA testing, expressing concern that widespread demands for such tests by felons could cripple the criminal justice system. The government, he said, can afford to do only a certain number of tests and currently waits about 30 days for results. If the government must now retest DNA evidence at the request of convicted criminals, "it would shut down the operation for all the present cases."

"That's just silly conjecture," Neufeld said. "It's not based on any facts." He said states that have enacted statutes allowing post-conviction DNA testing have received few requests. "We're not talking about floodgates, we're talking about a trickle."

Neufeld, a cofounder of the New York-based Innocence Project, which helps defendants prove their innocence through DNA testing, thinks the prosecutor's office should reconsider its opposition to the test. "Prosecutors are not elected or appointed to simply defend a conviction," he said.

The decision comes in the midst of growing acceptance of post-conviction DNA testing in Virginia. In early May, Virginia Gov. James Gilmore III signed into law a major overhaul of the state's death penalty rules, including a provision giving prisoners on death row and other violent felons the right to seek release through new DNA testing.

In February, new DNA tests led to the release of Earl Washington Jr., who was released from a Virginia prison where he had served 18 years after being wrongly convicted of murder. Washington was the fifth Virginia inmate, and the 80th in the country, to be exonerated by results from post-conviction DNA tests.