Harvey V. Horan - Fallout

Fallout

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 reconsideration (as opposed to the original three-judge panel). By this time, the issue was moot, but two judges, J. Michael Luttig 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 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 in 2004. On February 10, 2000, Senator Patrick Leahy (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 (D-MA) and Ray LaHood (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 by an overwhelming majority (393-14) on November 5, 2003. On October 9, 2004, the legislation, which was sponsored by Senator Patrick Leahy, passed unanimously in the United States Senate 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.