The DNA of an argument: a case study in legal logos.

• Author: Starger, Colin

1. INTRODUCTION **

   Law inevitably pits arguments against one another. Some win, some lose. In a dispute where on-the-books law or on-the-ground facts clearly favor one side over another, argument rarely determines the outcome. But in closer cases, what accounts for the relative success of embattled legal arguments? Does an argument's logic explain its persuasive power? In this Article, I construct an answer to these questions by developing a rhetorical framework that distinguishes categories of argument logic. I maintain that legal arguments persuade differently depending on how their premises, inferences, and conclusions are logically constituted. I introduce this rhetorical framework through an in-depth case study of the federal court debate over postconviction access to DNA evidence. The Supreme Court is now set to rule on the Osborne case emerging from this debate, (1) and I use my framework to justify a partial prediction of what argument logic will prevail in the Court. (2)

   Understanding the multi-faceted DNA access debate presented by Osborne initially requires a sifting through layers of argument. At its highest level of abstraction, the current postconviction DNA access debate concerns how proof intersects with legal process. DNA's extraordinary forensic power to determine guilt or innocence has challenged traditional notions of finality for criminal convictions where proof was adduced "beyond a reasonable doubt." Postconviction DNA exonerations have shown that, however reasonable at the time, mistaken trial judgments of guilt can result in wrongful convictions. (3) While DNA testing gained acceptance in the 1990s as a means of accurately identifying suspects with scientific certainty, providing postconviction access to this uniquely probative form of proof quickly became a major issue in criminal justice discourse. (4) State legislatures began to enact postconviction DNA testing statutes and prisoners began litigating access claims under these statutes in an attempt to prove their innocence. (5)

   Out of this general conversation about postconviction DNA access, a specific federal court discourse emerged. As the millennium turned, federal courts began to entertain a new type of DNA access action filed under 42 U.S.C. [section] 1983 (2006). Section 1983 provides a remedy for individuals whose constitutional and federal civil rights have been violated by persons acting "under color of' state law. (6) Section 1983 DNA access suits are brought by convicted criminals against civil plaintiffs to gain access to biological evidence held by the state. The biological evidence sought relates to the crime for which the plaintiff was convicted. The plaintiff asserts that a forensic DNA test of this evidence would yield results proving the plaintiff's innocence. The basic argument asserts that the defendants violated the plaintiff's constitutional rights by refusing, under color of law, to allow access to potentially exculpatory DNA evidence.

   This federal court discourse, in turn, implicates numerous doctrinal disputes over the propriety of [section] 1983 DNA access actions. Various strands of debate have percolated through the federal courts as prisoners with unique factual circumstances advanced alternate justifications for finding a substantive right and faced a myriad of procedural defenses. In Osborne, the Supreme Court is weighing in on two of these issues: (1) whether a postconviction DNA access claim is cognizable under the procedural vehicle of [section] 1983; and (2) whether a substantive constitutional right exists to access DNA evidence after conviction. (7)

   In this Article, I extricate the logic of the competing arguments on the first question presented in Osborne and carefully analyze their relative persuasive power. In broad strokes, this specific procedural debate concerns whether prisoners are barred from bringing DNA access actions under [section] 1983 because of a line of Supreme Court cases that starts with Preiser v. Rodriguez (8) and most prominently includes Heck v. Humphrey. (9) Taken together, cases in the Preiser-Heck family police a boundary between [section] 1983 and the federal habeas corpus statute--the traditional avenue available for prisoners seeking postconviction relief in federal courts. (10) Depending on how the logic of the Preiser-Heck cases is understood, [section] 1983 DNA access actions may or may not "necessarily imply" the invalidity of the prisoner's criminal conviction and fall on the wrong side of this boundary. (11)

   None of the existing scholarship on postconviction DNA testing employs a rhetorical approach to expose the underlying logic of competing doctrinal arguments. Some scholars have advanced doctrinal arguments in favor of finding a substantive constitutional right to postconviction DNA access. (12) Others have confronted the specific Preiser-Heck question that is my core concern and concluded that no procedural bar should apply to [section] 1983 DNA access actions. (13) While this work elucidates the doctrinal landscape of the DNA argument, my contribution is a new meta-analysis of how persuasion functions within this landscape.

   In order to analyze the persuasive power of competing arguments in the Preiser-Heck debate, I undertake a rhetorical case study analyzing which arguments have persuaded federal judges who have participated in [section] 1983 DNA access discourse. The first federal [section] 1983 DNA access decision was published on September 29, 2000 and involved an individual named James Harvey. (14) The Supreme Court accepted review in William Osborne's case on November 3, 2008. (15) During the intervening eight years, federal courts issued approximately three dozen decisions in [section] 1983 DNA access actions that were published in Federal Reporters or made available on Westlaw. (16) These decisions record rulings from various stages of [section] 1983 actions brought by twenty-one different individuals. (17) The opinions from these twenty-one separate controversies define the specific textual boundaries of this rhetorical case study. (18)

   While the closed universe of twenty-one controversies provides the original data for this case study, the conceptual framework I use to analyze this data is rhetorical. In developing the framework, I consciously follow a tradition that begins with Aristotle (19) and continues with neo-Aristotelian argument scholars like Stephen Toulmin (20) and Chaim Perelman. (21) Like these thinkers, I reject any pejorative understandings of rhetoric as mere flattery or devious sophistry. (22) In my view, rhetoric is properly regarded as a hard-nosed affair where the practical art of persuasion collides with the abstract theory of how argument moves discourse.

   In the following Parts of this Article, I elaborate my rhetorical framework and apply it to analyze the persuasive dynamics of competing Preiser-Heck arguments in [section] 1983 postconviction DNA access discourse. Although I focus on the procedural question raised by [section] 1983 and Preiser-Heck, I also unpack the rhetorical connection between procedure and substance in the debate over whether there exists a constitutional right of access to postconviction DNA evidence.

   In Part II, I introduce the critical concept that anchors my rhetorical framework--logos (plural logoi). Logos is a rhetorical term of art that Aristotle famously employed to describe argument based on reason. (23) In that Part, I explore the relationship between logic and logos and offer my own understanding of logos as the reasoned progression from premises to a conclusion supported by inference. Here, I also develop an original taxonomy that distinguishes between formal, empirical, narrative, and categorical types of logos. I briefly explain how formal, empirical, narrative, and categorical logoi operate as entirely different modes of proof in argument.

   In Part III, I advance my first major claim about the federal postconviction DNA access debate. I maintain that one particular opinion emerging from this discourse has influenced federal judges confronting [section] 1983 DNA access questions more than any other--the concurrence of Judge Michael Luttig in a decision known as Harvey II. (24) To contextualize this claim, I first tell the litigation story of James Harvey, which gave rise to the Harvey H decision, and contrast it with the parallel tale of Harvey's [section] 1983 contemporary, Bruce Godschalk. I then argue that empirical review of citation patterns of the nineteen post-Harvey II controversies in the case study provide prima facie evidence that Judge Luttig's Harvey H opinion has exerted profound sway over the postconviction DNA access debate.

   In Part IV, I begin the argument that the remarkable persuasive impact of Judge Luttig's Harvey H opinion derives from the particular logos of his Preiser-Heck argument. Part IV explains this claim in two basic steps. First, I describe how Harvey II effectively pitted Judge Luttig against his ostensibly concurring colleague Chief Judge Harvie Wilkinson III. (25) I closely parse both Luttig's and Wilkinson's opinions to isolate their operative premises and inferences and suggest that their arguments perfectly capture the competing logoi of the doctrinal conflict over Preiser-Heck. Second, I apply the categories that I developed in Part II and classify the formal logos of Luttig's argument as compared to the narrative logos of Wilkinson's argument. Luttig agues that the formal letter of the so-called "Heck rule" should render DNA access actions cognizable under [section] 1983, whereas Wilkinson argues that the narrative spirit of Preiser-Heck should lead to the opposite conclusion.

   In Part V, I describe how federal courts analyzed the Preiser-Heck question after Harvey II and how this conversation was impacted by the Supreme Court decision in Wilkinson v. Dotson. (26) I argue that Dotson effectively vindicated Luttig's formal logos and...