There's an editorial in today's Post about making DNA evidence available to prisoners.
Listening to Judges on DNA
Wednesday, April 10, 2002; Page A22
A REMARKABLE decision handed down recently by the Richmond-based U.S. Court of Appeals for the 4th Circuit constitutes a breakthrough in the debate over how available DNA testing should be to felons who claim they were wrongly convicted. The decision is notable not for what the court did -- which was predictable -- but for opinions issued by two of the famously conservative court's famously conservative judges: Chief Judge J. Harvie Wilkinson III and Judge J. Michael Luttig. In different ways, both judges issued pleas for easier access to testing -- pleas that ought to be heeded.
The debate over DNA testing has tended to break down along liberal-conservative lines. There is no good reason for this. Making sure that guilty people -- and not innocent ones -- are punished is the universally acknowledged goal of the criminal justice system. And providing some retroactive check, to the extent that science now permits it, ought to be an easy call, irrespective of one's politics. The interests of all sides -- convicts, prosecutors and the judicial system generally -- would be served by relatively routine DNA testing in situations where old, previously untested evidence could shed light on the accuracy of a conviction. Unfortunately, however, many conservatives have reflexively opposed reform efforts or have sought to make testing available only in the narrowest of circumstances. Some prosecutors, meanwhile, have fiercely resisted convicts' requests to test material.
One such prosecutor is Fairfax County's Robert Horan Jr., who has gone to the wall to prevent a convict named James Harvey from testing material Mr. Harvey believes could prove his innocence of a rape. Mr. Harvey sued. But after he initially won at the district court level, a panel of the 4th Circuit held that he had no constitutional right to test the material. Since then, a state court has ordered the testing under a state law. So when the full court was asked to review the earlier panel ruling, the case was essentially moot. Predictably enough, the court declined to reconsider.
All the judges agreed that this was the proper course. But Judge Luttig wrote separately to insist that the prior opinion had gotten the matter wrong: There is, in fact, "a limited, constitutional post-conviction right of access to previously-produced forensic evidence for the purpose of [DNA] testing," he wrote. This claim prompted Judge Wilkinson to respond. He said that he hoped "that inmates such as Harvey will receive DNA testing" but that the path to that goal must be legislative, not judicial. He then went on to note with implied approval a pending bill by Sen. Patrick Leahy (D-Vt.) that would make testing easier.
What is revealing is that the debate between these two conservative judges is not over whether testing should be a right in certain circumstances, but only over whether that right should be read into existing law or passed legislatively. We suspect that Judge Wilkinson is correct and that the solution here is legislative. But legislators -- including those in Congress -- need to listen to Judge Luttig's message.
© 2002 The Washington Post Company |
