Federal appeals court in Virginia reverses ruling that DNA testing is constitutional right

Thursday, January 24th 2002, 12:00 am

By: News On 6

RICHMOND, Va. (AP) _ A man convicted of rape in 1990 does not have a constitutional right to DNA testing on evidence, a federal appeals court ruled, reversing a groundbreaking opinion.

A three-judge panel of the 4th U.S. Circuit Court of Appeals found unanimously Wednesday that James Harvey failed to prove the Fairfax County prosecutor violated his civil rights by refusing to allow tests on evidence from Harvey's rape and sodomy trial.

Two of the three judges also found the court should not consider Harvey's claim of a due process violation because, the panel said, the inmate was trying to circumvent the limits on prisoners' appeals in federal court.

``Fashioning a new federal constitutional right that would govern all prisoners in all states is not a permissible way of addressing the question of post-conviction DNA testing,'' Chief Judge J. Harvie Wilkinson III wrote for the majority. ``Such relief must be conferred by either state or federal legislation or by the state courts acting under their own constitutions.''

The decision overturns a first-of-its-kind ruling by now-retired U.S. District Judge Albert V. Bryan Jr. At least 100 people have been freed nationwide because of genetic testing, and about a dozen states have passed laws to allow post-conviction DNA testing.

Peter J. Neufeld, co-founder of the New York-based Innocence Project, said lawyers are considering an appeal to the full 4th Circuit.

Harvey was convicted in the 1989 rape of a mother of three who was dragged into a wooded area by two men. DNA testing was not done at the time, and the victim could not identify her attackers. However, a witness testified that Harvey had confessed to him.

Jack Gould, attorney for Fairfax Commonwealth's Attorney Robert F. Horan Jr., said his client's position had been vindicated. ``In this case, the evidence of Mr. Harvey's guilt was substantial,'' he said.

Harvey also has asked a Fairfax circuit judge to order DNA testing under Virginia's new law that makes testing available to convicted felons in cases where the results could prove their innocence.