Va Judge: Inmates Can Get DNA Test
09-30-00

ALEXANDRIA, Va. (AP) - Inmates who claim they were wrongfully convicted have a constitutional right to request DNA testing that might prove their innocence, a federal judge ruled. 

U.S. District Judge Albert V. Bryan Jr. issued the ruling Friday in the case of James Harvey, 59, who was convicted of rape in 1990. Bryan did not order DNA testing for Harvey but said the 14th Amendment allows state prisoners to 
file federal civil rights lawsuits seeking DNA testing. 

Although a district judge's decision is not binding on other courts, Harvey's lawsuit could become a national test case. 

``DNA testing is becoming so accurate that any intelligent judge is going to say, `If there's any doubt, you should have a right to test.' If they can prove your guilt, why can't you prove your nonguilt?'' said John Whitehead, president of the Rutherford Institute, a conservative civil liberties group that is not involved in the Harvey case. 

If Bryan's decision reaches higher courts and is upheld, it could unleash a flood of lawsuits, The Washington Post reported Saturday. Most jurisdictions, including Virginia, do not guarantee prisoners the right to post-conviction DNA testing. Instead, prisoners must depend on prosecutors and governors to grant access to the laboratory work they claim could clear them. 

Jack Gould, an attorney for Fairfax Commonwealth's Attorney Robert F. Horan Jr., whose rejection of Harvey's request prompted the lawsuit, said the arguments the judge addressed were technical arguments. ``There will be further proceedings,'' he said. 

Post-conviction DNA testing has freed more than 70 prisoners, including eight from death rows, but a national debate is raging over how widely to make the technology available. 

Harvey was convicted of a 1989 rape in which a woman was raped and beaten by two men. No DNA testing was done at the time, and the witness was unable to identify her attackers; the key evidence came from a man who said Harvey had
confessed to him. 

Fairfax officials turned down Harvey's initial request for DNA testing, saying a negative result would not prove his innocence because there were two assailants. 

Gould argued that Harvey's civil rights lawsuit to get DNA testing was an attempt to get around the strict rules of criminal appeals and Virginia's one-year deadline for filing a habeas corpus appeal arguing he was wrongly imprisoned. 

But the federal judge wrote that Harvey may still have a constitutional right to testing. Denial of DNA testing is a new civil rights claim and separate from the strictly regulated habeas corpus process, Bryan wrote. 

``This is a very good sign,'' said Barry Scheck, co-founder of the New York-based Innocence Project, which represents Harvey and other prisoners who claim they were wrongly convicted. ``We can't ever get into state court because of the statute of limitations. We've lost in many places because it's too late.'' 

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