Harvey V. Horan - The Case

The Case

On April 30, 1990, James Harvey was convicted of rape and forcible sodomy by a jury in Fairfax County Circuit Court. He was sentenced to 25 years in prison. One piece of evidence used to convict Harvey was restriction fragment length polymorphism ("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. 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 during the attack.

Harvey did not appeal his conviction but did file a state petition for a writ of habeas corpus. His petition was rejected by the Virginia Supreme Court in 1993. On February 25, 1994, Harvey filed action in federal district court against the Governor of Virginia under 42 U.S.C. § 1983, a post-Civil War civil rights statute that allows citizens to sue state and local officials in federal courts for constitutional 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 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 28 U.S.C. § 2254.

In 1996, the New York-based Innocence Project 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 ("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, Virginia, U.S. District Judge Albert V. Bryan Jr. ruled that Horan had violated Harvey's right to due process under the 14th and 5th Amendment 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 (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.