285 F.3d 298 (4th Cir. 2002), 01-6703, Harvey v. Horan

Docket Nº:01-6703
Citation:285 F.3d 298
Party Name:JAMES HARVEY, Plaintiff-Appellee, v. ROBERT F. HORAN, JR., Commonwealth's Attorney, County of Fairfax, Defendant-Appellant. JENNIFER THOMPSON; KAREN R. POMER; JERI ELSTER, Amici Curiae.
Case Date:March 28, 2002
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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285 F.3d 298 (4th Cir. 2002)

JAMES HARVEY, Plaintiff-Appellee,


ROBERT F. HORAN, JR., Commonwealth's Attorney, County of Fairfax, Defendant-Appellant.


No. 01-6703

United States Court of Appeals, Fourth Circuit

March 28, 2002

Corrected April 18, 2002


Appellee filed a petition for rehearing and rehearing en banc.

Judge King voted to grant panel rehearing. Chief Judge Wilkinson and Judge Niemeyer voted to deny.

No member of the Court requested a poll on the petition for rehearing en banc.

Chief Judge Wilkinson filed an opinion concurring in the denial of rehearing and rehearing en banc. Judge Luttig filed an opinion respecting the denial of rehearing en banc.

The Court denied the petition for rehearing and rehearing en banc. Entered at the direction of Chief Judge Wilkinson for the Court.

WILKINSON, Chief Judge, concurring in the denial of rehearing and rehearing en banc:

There is no doubt that Harvey should receive the biological evidence in this case for DNA testing using technology that was unavailable at the time his Virginia conviction became final. In fact, the panel opinion suggested that the state courts could order DNA testing. See Harvey v. Horan, 278 F.3d 370, 380 (4th Cir. 2002) (stating that "state courts are free in ways that we are not to set the ground rules by which further collateral attacks on state convictions such as Harvey's may be entertained"). And that is precisely what the state courts have now done. The question before us is thus not whether Harvey should or will receive the DNA evidence. He should and he will. Rather, the issue is whether a S 1983 action brought in federal court in the first instance is the appropriate vehicle for him to access that evidence.

I nonetheless confess myself puzzled over the discussion herein. The issues have been extensively addressed in the earlier majority and concurring opinions. No member of the court requested a poll on the suggestion for rehearing en banc, and my brother agrees "that a denial of rehearing en banc is now the proper disposition of this particular case." Post at 44. However, inasmuch as my colleague has undertaken an extended discussion of his own, I tender this brief response.

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The threshold question posed by Harvey's S 1983 action relates to the nature of the constitutional right he asserts. There are two possibilities here, one procedural and the other substantive. The procedural right is the right to press and proclaim one's innocence in a federal forum in the first instance when seeking access to DNA testing, even where the judgment to be challenged is a state conviction.

The American criminal justice system rightly sets the ascertainment of truth and the protection of innocence as its highest goals. The average school child is aware (or so we hope) that the accused is clothed with a presumption of innocence and that the prosecutor must prove beyond a reasonable doubt that a crime was committed. Moreover, the concern with innocence does not end at trial. Elaborate postconviction procedures are rightly in place to ensure not only that a trial was fair, but also that no individual has been wrongly convicted.

Our system however does not allow any person to press a claim of innocence at any time, at any place, and in any manner. The assertion of innocence, just as the assertion of any right, is intertwined with orderly process. It matters, for example, that a Virginia prisoner has sought here to bypass Virginia's system of criminal justice altogether, and proceed directly into federal court under S 1983. Such disregard of process is an anomaly in an area where criminal defendants, above all, rely on proper process to protect their rights. What Alexander Bickel termed "the morality of process" in the political system has application to criminal justice as well. Alexander M. Bickel, The Morality of Consent 123 (1975). Shorn of process, neither the innocent nor the public upon whom offenders prey will have any assurance of justice.

The panel opinion identifies the multiple procedural problems Harvey's S 1983 claim faces. See Harvey, 278 F.3d at 374-80. Yet the separate opinion would throw each and every one of these considerations to the winds. As Harvey's case shows, state courts, if given a chance, can rise to their responsibilities. Yet my good colleague would not only deny them that chance, but do so in unprecedented fashion, encouraging state prisoners to press their claims initially in federal court while disregarding all state court procedures and all state legislative avenues of redress.

This is not to say that the federal courts are uncharitable with respect to claims of innocence. For example, Rule 33 of the Federal Rules of Criminal Procedure authorizes motions for a new trial on the basis of newly discovered evidence. And the seminal case of Jackson v. Virginia, 443 U.S. 307 (1979), allows a state prisoner to press a claim of innocence in federal court on the ground that "the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt." 443 U.S. at 321. See also Herrera v. Collins, 506 U.S. 390, 404 (1993) (stating that "`actual innocence' is not itself a constitutional claim," but that it can serve as a "gateway" through which a habeas petitioner can "have his otherwise barred constitutional claim considered on the merits").

It is important however that claims of innocence should be entertained, where possible, in the first instance by the court, or at least by the court system, that initially heard the case. Such a rule, ostensibly directed to considerations of venue or comity, actually serves a larger purpose. It Page 300

recognizes in the underlying conviction not a conclusion of infallibility, but a presumption of legitimacy. That presumption would be lost if the court rendering the conviction could simply be disregarded and bypassed at will, which is what Harvey sought to do in fashioning his claim of innocence as a S 1983 suit. By design, judgments of conviction in criminal cases are not casually reached. The efforts of jurors, judges, witnesses, prosecutors, and defense attorneys represent a considerable and conscientious effort at achieving justice -an effort which would be lost if the court or system rendering the judgment were entitled to no respect or even so much as acknowledgment thereafter.


In addition to the procedural difficulties Harvey's claim presents, this case poses the intractable problem of identifying the precise nature and scope of the substantive due process right that a federal court would have to bestow on Harvey in order for his S 1983 claim to proceed. Both the panel majority opinion and the concurrence recognized this. Harvey, 278 F.3d at 375-77, 380, 387-88 & n.7. Indeed, the separate opinion acknowledges as well just how "formidable" the task of identifying the precise parameters of such a right would be. Post at 36. It accordingly declines to specify even the rough contours of the constitutional right of post-conviction access to DNA evidence that it divines. Post at 36. The separate opinion merely states, without explanation, that such a right would be "narrowly confine[d]" and governed by "strict and limiting" standards. Id. In the end, we are left to guess whether even Harvey himself would qualify for additional DNA testing under the separate opinion's newly minted constitutional right of access to evidence. Post at 43.

We are kept in the dark about what such a right would actually look like not just because defining the scope of the right would be "imprudent." Post at 36. It is no more imprudent to define a right one has declared to exist than it is to assert its existence to begin with. It is not imprudence that accounts for this silence, but rather the humbling reality that it may well be impossible for a judge-qua-judge to accomplish this feat. That is why this task is one appropriately left to legislatures.

A myriad of questions would have to be answered in order to define the parameters of a constitutional right to post-conviction access to DNA evidence. For instance, we would have to decide who could claim a right to DNA testing -in particular, whether such a right would apply to all prisoners or only those who committed certain crimes or who were serving some minimum prison term. Further, we would have to determine what threshold showing was required in order for a prisoner to receive post-conviction DNA testing. For example, does identity have to have been an issue at trial? What if the prisoner has pleaded guilty? In addition, we would have to decide to whom a request for post-conviction testing would be made and on the standard that the decision-maker would use in determining whether testing was appropriate. For example, must a prisoner show only that the untested evidence might possibly assist his claim of innocence, or that a reasonable probability exists that the outcome of his trial would have been different if the test results had been available? Or does some stricter standard apply? Moreover, we would have to determine whether there was a statute of limitations for bringing the request in the first place.

Next, we would have to work out details of the testing system itself. First, we would have to identify who would bear the Page 301

costs of the DNA testing. Would it be the state or federal government, the prisoner, or only prisoners who can afford the testing? Would we wait to determine if DNA testing had proved wholly or arguably successful for the requesting prisoner before determining who bears the cost? And we would...

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