RICHMOND, VA. — Reversing a groundbreaking opinion, a federal appeals court ruled that a man convicted of rape in 1990 does not have a constitutional right to DNA testing.
The 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.
"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.
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