Harvey v. Horan
Harvey v. Horan, 278 F. 3d 370 (4th Cir. 2002) is a federal court case dealing with felons
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...

' rights of access to DNA testing
Genetic fingerprinting
DNA profiling is a technique employed by forensic scientists to assist in the identification of individuals by their respective DNA profiles. DNA profiles are encrypted sets of numbers that reflect a person's DNA makeup, which can also be used as the person's identifier...

. The Eastern Virginia District Court originally found that felons were entitled access to DNA testing on potentially exculpatory evidence
Exculpatory evidence
Exculpatory evidence is the evidence favorable to the defendant in a criminal trial, which clears or tends to clear the defendant of guilt. It is the opposite of inculpatory evidence, which tends to prove guilt....

, but this finding was later overturned by the Fourth Circuit Court of Appeals
United States Court of Appeals for the Fourth Circuit
The United States Court of Appeals for the Fourth Circuit is a federal court located in Richmond, Virginia, with appellate jurisdiction over the district courts in the following districts:*District of Maryland*Eastern District of North Carolina...

. Nevertheless, the case paved the way for the Innocence Protection Act
Innocence Protection Act
The Innocence Protection Act is the first federal death penalty reform to be enacted. The Act seeks to ensure the fair administration of the death penalty and minimize the risk of executing innocent people. The Innocence Protection Act of 2001, introduced in the Senate as S. 486 and the House of...

, which ensures that convicted offenders can try to prove their innocence by requesting DNA testing on evidence in government's possession that was used in their case.

The case

On April 30, 1990, James Harvey was convicted of rape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...

 and forcible sodomy
Sodomy is an anal or other copulation-like act, especially between male persons or between a man and animal, and one who practices sodomy is a "sodomite"...

 by a jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...

 in Fairfax County
Fairfax County, Virginia
Fairfax County is a county in Virginia, in the United States. Per the 2010 Census, the population of the county is 1,081,726, making it the most populous jurisdiction in the Commonwealth of Virginia, with 13.5% of Virginia's population...

 Circuit Court
Circuit court
Circuit court is the name of court systems in several common law jurisdictions.-History:King Henry II instituted the custom of having judges ride around the countryside each year to hear appeals, rather than forcing everyone to bring their appeals to London...

. He was sentenced to 25 years in prison
A prison is a place in which people are physically confined and, usually, deprived of a range of personal freedoms. Imprisonment or incarceration is a legal penalty that may be imposed by the state for the commission of a crime...

. One piece of evidence used to convict Harvey was restriction fragment length polymorphism
Restriction fragment length polymorphism
In molecular biology, restriction fragment length polymorphism, or RFLP , is a technique that exploits variations in homologous DNA sequences. It refers to a difference between samples of homologous DNA molecules that come from differing locations of restriction enzyme sites, and to a related...

 ("RFLP") DNA testing. The victim had two assailants, and this test prevented both Harvey and his co-defendant from being excluded as a possible source of spermatozoa recovered from the victim through conventional serology
Serology is the scientific study of blood serum and other bodily fluids. In practice, the term usually refers to the diagnostic identification of antibodies in the serum...

. Harvey was also implicated by testimony from his co-defendant, the victim, and a third prosecution witness. However, this testimony indicated that Harvey had not ejaculated
Ejaculation is the ejecting of semen from the male reproductory tract, and is usually accompanied by orgasm. It is usually the final stage and natural objective of male sexual stimulation, and an essential component of natural conception. In rare cases ejaculation occurs because of prostatic disease...

 during the attack.

Harvey did not appeal his conviction but did file a state petition for a writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...

 of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...

. His petition was rejected by the Virginia Supreme Court in 1993. On February 25, 1994, Harvey filed action in federal district court
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...

 against the Governor of Virginia
Governor of Virginia
The governor of Virginia serves as the chief executive of the Commonwealth of Virginia for a four-year term. The position is currently held by Republican Bob McDonnell, who was inaugurated on January 16, 2010, as the 71st governor of Virginia....

 under 42 U.S.C. § 1983, a post-Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...

 civil rights
Civil rights
Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...

 statute that allows citizens to sue state and local officials in federal courts for constitutional
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

 violations. He claimed that the state's failure to re-test biological evidence from the case was a violation of his rights under the due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...

 clause. On July 25, 1995, the district court dismissed Harvey's petition, finding that he had not exhausted state remedies and would have to refile his claim for DNA testing as a petition for a writ of habeas corpus under .

In 1996, the New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...

-based Innocence Project
Innocence Project
An Innocence Project is one of a number of non-profit legal organizations in the United States, Canada, the United Kingdom, Australia and New Zealand dedicated to proving the innocence of wrongly convicted people through the use of DNA testing, and to reforming the criminal justice systems to...

 contacted the Virginia Division of Forensic Science on Harvey's behalf, requesting the biological evidence form the case. The Innocence Project wanted to re-test the evidence using short tandem repeat
Short tandem repeat
A short tandem repeat in DNA occurs when a pattern of two or more nucleotides are repeated and the repeated sequences are directly adjacent to each other. The pattern can range in length from 2 to 5 base pairs and is typically in the non-coding intron region...

 ("STR") DNA testing, which was unavailable at the time of Harvey's trial. The Division of Forensic Science recommended that the Innocence Project bring its request to the Fairfax County Commonwealth's Attorney's office. The Innocence Project made this request in February 1998 and July 1999. In October 1999, Commonwealth attorney Robert F. Horan Jr. denied the request for access to the evidence, asserting that even if Harvey were excluded as a contributor of genetic material, it would not prove his innocence due to the testimony indicating that he had not left any biological evidence behind.

Harvey then filed action in district court under 42 U.S.C. § 1983. Harvey's attorneys cited this statute, which is most often used in cases of police brutality, because Harvey's previous lawyers had missed a filing deadline in the more common criminal appeals process. They argued that Harvey's right to due process was infringed because he was denied access to potentially exculpatory evidence. They said that the test could be decisive if it yielded certain result — for example, if the laboratory identified DNA from two men and neither of them was Harvey. They also noted that although the prosecutor claimed that his office would allow DNA testing in appropriate cases, Fairfax had never found an appropriate case.

On April 16, 2001 in Alexandria
Alexandria, Virginia
Alexandria is an independent city in the Commonwealth of Virginia. As of 2009, the city had a total population of 139,966. Located along the Western bank of the Potomac River, Alexandria is approximately six miles south of downtown Washington, D.C.Like the rest of northern Virginia, as well as...

, Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...

, U.S. District Judge Albert V. Bryan Jr.
Albert V. Bryan Jr.
Albert Vickers Bryan Jr. is a United States federal judge.Born in Alexandria, Virginia, Bryan's father Albert Vickers Bryan, was also a federal judge. Bryan served in the United States Marine Corps reserve from 1944 to 1946, and then received an LL.B. from University of Virginia School of Law in...

 ruled that Horan had violated Harvey's right to due process under the 14th
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...

 and 5th Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...

 by refusing the test. In a 13-page opinion, Bryan stated, "due process is not a technical conception with a fixed concept unrelated to time, place and circumstances. It is flexible and calls for such procedural protections as the particular situation demands." He found that Harvey had a due process right of access to the DNA evidence under Brady v. Maryland
Brady v. Maryland
Brady v. Maryland, 373 U.S. 83 , was a United States Supreme Court case in which the prosecution had withheld from the criminal defendant certain evidence. The defendant challenged his conviction, arguing it had been contrary to the Due Process Clause of the Fourteenth Amendment to the United...

(1963) because the material could prove to be exculpatory evidence, asserting that "denying the plaintiff access to potentially powerful exculpatory evidence would result in . . . a miscarriage of justice." Significantly, Bryan also concluded that Harvey’s claim was not in effect a petition for a writ of habeas corpus because Harvey was not seeking immediate release from prison or challenging his conviction. The judge ordered Horan to send all the evidence to the Virginia State Laboratory for testing. Although Bryant's decision was not binding in other courts, it was significant because Bryant was the first judge to issue such an order.

The appeal

On September 26, 2001, Horan's lawyer, Jack L. Gould, appealed the decision to the United States Court of Appeals for the Fourth Circuit
United States Court of Appeals for the Fourth Circuit
The United States Court of Appeals for the Fourth Circuit is a federal court located in Richmond, Virginia, with appellate jurisdiction over the district courts in the following districts:*District of Maryland*Eastern District of North Carolina...

. He contended that § 1983 was not an appropriate vehicle for Harvey’s action. He stated that the procedural flaws in the claim required that it be dismissed because it was really a successive petition for a writ of habeas corpus and an attempt to get around strict rules and deadlines.

On January 23, 2002, the court concluded that Harvey's rights had not been violated and that the lower court had erred in its decision. Fourth Circuit Chief Judge
Chief judge
Chief Judge is a title that can refer to the highest-ranking judge of a court that has more than one judge. The meaning and usage of the term vary from one court system to another...

 J. Harvie Wilkinson III wrote the opinion, in which Judge Niemeyer joined. Judge King wrote a concurring opinion.

The majority opinion stated that the claim was, in effective, a petition for a writ of habeas corpus brought without leave of court. According to a previous case, Heck v. Humphrey (1994), a convicted criminal defendant cannot bring a § 1983 action that would "necessarily imply the invalidity of his conviction or sentence" unless the defendant can prove that his "conviction or sentence has already been invalidated." In this decision, the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 found that civil
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...

A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...

 actions are "not appropriate vehicles for challenging the validity of outstanding criminal judgments." As such, the majority opinion in the appeal overturned the lower court's ruling because it found that Harvey had substantively failed to make a claim under § 1983. Judge Wilkinson wrote that Harvey had attempted to circumvent habeas corpus requirements, which required exhaustion of remedies at the state level before moving to the federal level. By bringing his claim directly to federal court under § 1983, Harvey had violated procedure:

While we agree with Harvey that the question of guilt or innocence lies at the heart of the criminal justice system, we also believe that the proper process for raising violations of constitutional rights in criminal proceedings cannot be abandoned. Because the substance of a claim cannot be severed from the proper manner of presenting it, we find Harvey’s § 1983 action to be deficient.

The opinion went on to state that Harvey's action under § 1983 "sought to invalidate a final state conviction whose lawfulness has in no way been impugned". Harvey claimed that he was challenging neither the fact nor the duration of his confinement, pointing out that he merely seeks evidence which could also prove his guilt. The court found this argument to be an evasion, saying, "He is trying to use a § 1983 action as a discovery device to overturn his state conviction". The majority opinion asserted that the finality of convictions could not be challenged by advances in technology:

The possibility of post-conviction developments, whether in law or science, is simply too great to justify judicially sanctioned constitutional attacks upon final criminal judgments. …Establishing a constitutional due process right under § 1983 to retest evidence with each forward step in forensic science would leave perfectly valid judgments in a perpetually unsettled state.

According to the majority opinion, the only purpose of Harvey's claim was to challenge his conviction based on evidence that was available to him at the time of his trial. As such, the court concluded that Harvey's rights had not been violated by Horan. The court also stated that Harvey could only make his claim in habeas corpus, but that even if he had the court would be forced to dismiss it, for he had already filed such a petition in federal court.

Circuit Judge King concurred in part and in judgment with the majority decision. While he agreed that the lower court's decision was incorrect, he also contended that Harvey's claim could properly be brought under § 1983. The judge stated that the act of providing Harvey access to evidence did not alone necessarily imply the invalidity of Harvey's conviction. King agrees with Harvey's attorney, Peter J. Neufeld, that the evidence could indeed inculpate Harvey and thus that § 1983 was a proper vehicle for bringing the action. However, King determined that since the material had been available to him at trial and since he had not been denied access to the legal system or evidence known to be exculpatory, Harvey did not have a legal claim to discover evidence under Brady v. Maryland. He stated that Harvey's claim was invalid not because he violated procedure, but because he could not prove that a state actor deprived him of a federally protected right.


After the January 2002 decision was handed down, Harvey applied to Virginia's Fairfax Circuit Court for DNA testing based on a 2001 law allowing felons increased access to potentially exculpatory biological evidence that had not previously been subjected to the current DNA testing method. On March 1, 2002, the court ordered the Division of Forensic Science to conduct the testing. On May 15, 2002, after the testing was completed, the division filed a certificate of analysis stating that Harvey could not be eliminated as a possible contributor to the sperm fractions found on the victim. On September 24, 2002, Harvey filed a petition for a writ of habeas corpus in the Virginia Supreme Court, challenging the validity of the certificate of analysis and related test results. The court dismissed the petition on June 10, 2004, saying that it did not have jurisdiction to consider it.

Back in March 2002, the federal appeal had come before the full Fourth Circuit as an en banc
En banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...

 reconsideration (as opposed to the original three-judge panel). By this time, the issue was moot
In American law, a matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law...

, but two judges, J. Michael Luttig
J. Michael Luttig
J. Michael Luttig is an American lawyer and a former federal appellate court judge.-Education and early work:Born in Tyler, Texas, Luttig graduated from Washington and Lee University in 1976. He then attended the University of Virginia School of Law, where he received his Juris Doctor degree in...

 and Wilkinson, wrote anyway. Luttig wrote that the "right of access to evidence for tests which ... could prove beyond any doubt that the individual in fact did not commit the crime, is constitutionally required ... as a matter of basic fairness." Luttig also concluded that there is "a limited, constitutional, post-conviction right of access to previously produced forensic evidence for the purpose of [DNA] testing." Wilkinson responded by expressing hope that inmates like Harvey would have access to DNA testing but that it was a matter for the legislature to decide. Significantly, his majority opinion in the original appeal stated, "our decision reflects the core democratic ideal that if this entitlement is to be conferred, it should be accomplished by legislative action rather than by a federal court as a matter of constitutional right."

Wilkinson's hopes were manifested with the passage of the bipartisan Innocence Protection Act
Innocence Protection Act
The Innocence Protection Act is the first federal death penalty reform to be enacted. The Act seeks to ensure the fair administration of the death penalty and minimize the risk of executing innocent people. The Innocence Protection Act of 2001, introduced in the Senate as S. 486 and the House of...

 in 2004. On February 10, 2000, Senator Patrick Leahy
Patrick Leahy
Patrick Joseph Leahy is the senior United States Senator from Vermont and member of the Democratic Party. He is the first and only elected Democratic United States Senator in Vermont's history. He is the chairman of the Senate Judiciary Committee. Leahy is the second most senior U.S. Senator,...

 (D-VT) introduced the act after devoting nearly a year to evaluating flaws in the administration of the death penalty nationwide. A few months later, the bill is introduced in the House by Bill Delahunt
Bill Delahunt
William D. Delahunt is a former U.S. Representative for , serving from 1997 to 2011. He is a member of the Democratic Party. Delahunt did not seek re-election in 2010, and left Congress in January 2011. He was replaced by Norfolk County District Attorney Bill Keating...

 (D-MA) and Ray LaHood
Ray LaHood
Raymond H. "Ray" LaHood is a Republican politician from Illinois who is currently the United States Secretary of Transportation, having served since 2009. Previously, he represented the Illinois's 18th congressional district in the U.S. House of Representatives for seven terms .-Early life and...

 (R-IL). Innocence Project co-founders Neufeld and Barry C. Scheck testified several times over the next few years as witnesses before hearings of committee on the Act. Both mentioned the Harvey v. Horan case in their testimony, saying that it was significant for being the first federal court decision in the country to recognize a constitutional right of access to post-conviction DNA testing. The Innocence Protection Act eventually passed in the House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...

 by an overwhelming majority (393-14) on November 5, 2003. On October 9, 2004, the legislation, which was sponsored by Senator Patrick Leahy
Patrick Leahy
Patrick Joseph Leahy is the senior United States Senator from Vermont and member of the Democratic Party. He is the first and only elected Democratic United States Senator in Vermont's history. He is the chairman of the Senate Judiciary Committee. Leahy is the second most senior U.S. Senator,...

, passed unanimously in the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...

 after narrowly moving through the Senate Judiciary Committee.

In 2009, the United States Supreme Court addressed the issue of a due process right to DNA testing in District Attorney's Office v. Osborne. The court decided that prisoners did not have a right to the testing. The decision only affects those few states that do not have laws similar to the federal Innocence Protection Act that explicitly give prisoners a right to DNA evidence.http://www.nytimes.com/2009/06/19/us/19scotus.html?_r=1&hp


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