Brady Behind Bars: The Prosecutors Disclosure Obligations Regarding DNA In The Post-Conviction Arena

• Author: Brian T. Kohn
• Pages: 35-60

Brian T. Kohn= J.D. Candidate, Benjamin N. Cardozo School of Law (June 2003). The author, a former intern at the Innocence Project, is to join the firm of Boies Schiller & Flexner as an associate in September 2003. He wishes to thank Aliza Kaplan, deputy director of the Innocence Project, and Professor Ellen Yaroshefsky for their insightful comments.

Page 35

I Introduction

In 1990, a jury convicted James Harvey and another man of beating and raping a young woman in a wooded area near a busy highway.¹ Six years later, Harvey-by this point languishing in a Virginia jail²- contacted the Innocence Project in an attempt to prove his innocence.³ Lawyers at the Innocence Project took on Harvey's case and immediately began attempting to locate the biological evidence,⁴ making several requests to the case's prosecutor, the Fairfax County Commonwealth's Attorney.⁵

More than eighteen months after receiving the first request for access to the evidence, an assistant Commonwealth's Attorney deniedPage 36Harvey's request.⁶ In response to this denial, the Innocence Project, on Harvey's behalf, commenced an action, pursuant to 42 U.S.C. 1983⁷ arguing primarily that Fairfax County Commonwealth's Attorney Robert F. Horan Jr., among others, deprived him of his constitutionally protected right to due process under the Fourteenth and Fifth Amendments.⁸ Analyzing Harvey's claims through the lens of Brady v. Maryland⁹ the District Court for the Eastern District of Virginia ordered the Commonwealth's Attorney to turn over the biological evidence at issue.¹⁰ The court found that "denying [Harvey] access to potentially Page 37 powerful exculpatory evidence would result in ... a miscarriage of justice" in contravention of Brady¹¹ The district court's decision marked the first time a federal court applied Brady in the post-conviction setting to find that a prosecutor's refusal to allow DNA testing violated the convicted felon's constitutional rights.¹² Harvey's victory was shortlived, however, as a panel of the Fourth Circuit quickly reversed the district court's decision, finding that Harvey had not stated "a valid Brady claim because he [was] not challenging a prosecutor's failure to turn over material exculpatory evidence that, if suppressed, would deprive the defendant of a fair trial."¹³ Thus, just eight months after the first district court to consider the issue held that Brady obligations persist beyond a defendant's conviction, the first Court of Appeals to hear the issue on appeal found otherwise.

To date, no other circuit court has considered this issue. However, after the district court's decision in Harvey I, but prior to the Fourth Circuit's reversal, the District Court for the Eastern District of Pennsylvania applied Brady to conclude that a convicted rapist had "a due process right of access to the genetic material for the limited purpose of DNA testing."¹⁴ These recent decisions highlight a critical question that remains unanswered: Are prosecutors required, under Brady or by the ethical obligations bestowed upon them, to turn over potentially exculpatory evidence during post-conviction proceedings?

Significantly adding to this question's import is the rapidly increasing number of exonerations based on DNA tests of biological evidence preserved from rape victims and crime scenes.¹⁵ Fortunately, thirty statePage 38legislatures have enacted laws that provide...