A lab worker handles DNA evidence from criminal investigations
Monday, a federal judge decided that Harvey — and other convicted felons — have a constitutional right to DNA testing. In a fiery 13-page ruling, District Judge Albert Bryan wrote that Fairfax County prosecutor Robert Horan violated Harvey's civil rights when he refused to allow testing on DNA evidence collected for Harvey's trial. "Denying the plaintiff access to potentially exculpatory evidence would result in... a miscarriage of justice," Bryan wrote. If it stands, Bryan's ruling could have staggering repercussions on national criminal law; defense attorneys have long argued that defendants be entitled to post-trial DNA testing, particularly in death penalty cases, but many prosecutors have been wary of opening what many consider a Pandora's box of evidence. Allowing post-conviction DNA tests could, prosecutors worry, flood the courts with baseless appeals.
Judge Bryan was not impressed by those concerns; he ordered all DNA evidence sent away to a state laboratory for testing, where Harvey's lawyers hope scientists will find the genetic samples taken at the crime scene do not match their client's.
Vanessa Potkin is a staff attorney for the Innocence Project, a New York–based legal clinic that advocates for access to post-conviction DNA testing. Potkin was among the lawyers representing Harvey in this case. She spoke with TIME.com Tuesday.
TIME.com: When did this case begin?
Vanessa Potkin: When someone contacts us, we look at whether there is some biological evidence that could prove either innocence or guilt. In Harvey's case, we filed the complaint in July of 2000, but Harvey first contacted us in 1993. We started making efforts to locate Harvey's DNA evidence as early as 1996, beginning with approaching the prosecutors and the state forensic labs.
Why didn't Harvey's lawyers introduce this DNA evidence during the 1990 trial?
They did attempt DNA tests on some of the biological evidence from the rape kit, but because of the limited technology available at the time, they weren't able to obtain a genetic profile. And that's what we hope to correct now.
Is that the case with many of your clients — advanced DNA techonology just wasn't available at the time of their trial?
In most of these cases, conventional serology (or bloodwork) has been performed. And in some later cases, there's been very basic DNA testing. But as more advanced testing systems became widely available in late 1990s, questions about previous testing techniques started to emerge. If those earlier tests couldn't give us the whole truth, but newer tests can come a lot closer, why not use the newer technology?
Back to James Harvey: Does the debate surrounding his case hinge on the issue of due process?
Yes. And what's unique about this case is that it's the first time a federal court has recognized a person's right in a post-conviction situation to access evidence that could prove exculpatory.
We brought Harvey's case under a 1983 federal civil rights statute that offers a remedy to citizens whose constitutional rights are violated. The law gives a client the right to sue for injunctive relief — and in this case, the relief in question was access to DNA testing.
Where does the case go from here?
It looks like we're headed for the Fourth District court, which is just a step below the Supreme Court.
Harvey won his motion for summary judgment. And normally that would be the end of it. But in this case, the defendant [prosecutor Horan] has appealed. Which I find absolutely astounding — after all, what's the worst that could happen in this case as far as a prosecutor is concerned? If the evidence comes back showing Harvey to be guilty, you know the system works. If it comes back proving he's innocent, you've corrected an egregious wrong.
Prosecutors who are opposed to DNA testing argue for finality or to let a victim get closure on a case, but if they'd just allow the testing to take place, and stop fighting this, the victims would never have to know about it.
Will you all be down there if the case continues?
Yes. You know, we just got the decision yesterday, and Horan has 30 days to decide whether he'll file for an appeal. The next issue, though, will be whether the judge is asked to issue a stay — that would keep the DNA evidence hidden away.
Is this case, or one like it, destined to appear on a not-too-distant docket of the U.S. Supreme Court?
This is something that could go as far as the Supreme Court. But my sense is that it's a pretty commonsensical issue at the end of the day. If this were a pre-conviction trial, it would be obvious to everyone that the defendant has right to his own DNA testing and materials. So shouldn't it be common sense that we should extend that right to a post-conviction scenario? How can it not be helpful to correct the mistake of imprisoning an innocent person?