Opinion
No. 00-1123-A
April 16, 2001
Memorandum Opinion
Background
The plaintiff, James Harvey, was convicted of rape and forcible sodomy on April 30, 1990 after a second jury trial in the Fairfax County Circuit Court. Mr. Harvey's first trial concluded with a hung jury. Conventional serology testing on the items recovered from the rape kit revealed the presence of spermatozoa on the victim's mouth smear, vaginal smear, thigh smear and in the extracts of the vaginal and vulvar swab samples. Spermatozoa was also detected on the victim's pantyhose. Neither plaintiff nor his co-defendant, who was also convicted, could be excluded as a result of the serology testing. The victim was never able to identify the plaintiff as one of her attackers. The first assailant raped and orally sodomized her. The victim was not sure, when testifying at trial, if the first assailant ejaculated. The second assailant raped the victim and the victim testified that the second assailant, identified as the co-defendant, Steve Lawrence, did not ejaculate. The victim also testified that one perpetrator called the other perpetrator "Harv". Prosecution witness Curtis Ivy told the police, shortly before his [Ivy's] preliminary hearing on a cocaine charge, that the plaintiff had confessed to Ivy both the plaintiff's and Lawrence's involvement in the attack. Ivy testified at trial that the maroon shirt identified by the victim as belonging to one of her assailants belonged to Harvey and that he was wearing the shirt on the date of the rape and sodomy.
The plaintiff was sentenced to twenty-five years for the rape and fifteen years for forcible sodomy. Although the court granted the plaintiff an extension of time until January 24, 1991 to file a petition for appeal, he did not do so.
Alleging that a failure to order DNA testing on the biological evidence constituted a deprivation of due process, the plaintiff filed a 42 U.S.C. § 1983 action against the Governor of Virginia in this court on February 25, 1994. Upon the court's ruling that the plaintiff should refile his § 1983 claims as a petition for a writ of habeas corpus, plaintiff did so, alleging that the Governor had refused to order the DNA test which could prove plaintiff's innocence. The court dismissed plaintiff's petition on July 25, 1995, pursuant to Va. Code § 8.01-654(B)(2), finding that plaintiff had failed to fully exhaust state remedies, as required by the Virginia code.
Starting in 1996, in an effort to locate the biological evidence, the Innocence Project, on plaintiff's behalf, contacted the Virginia Division of Forensic Science. In response to the request, director Dr. Paul Ferrara recommended that the evidence be requested from the Fairfax County Commonwealth's Attorney's office. In February 1998, the Innocence Project contacted Ray Morrogh, a Commonwealth's Attorney for Fairfax County, with a request for assistance in locating the biological evidence. The Innocence Project alleges that Mr. Morrogh never responded to the request for assistance. In July 1999, the Innocence Project made another request to Todd Sanders, Assistant Commonwealth's Attorney for Fairfax County. Mr. Sanders stated in an October 1999 letter that in his opinion, that if one of the perpetrators of the rape did not ejaculate, as plaintiff contends happened, and plaintiff was excluded as the contributor of the genetic material, this in itself would not prove the plaintiff's innocence and, therefore, his case did not warrant post-conviction DNA testing. However, plaintiff insists that the victim identified him at trial as the first assailant. He contends that the victim testified that she was not sure whether the first assailant did ejaculate and that the second assailant did not ejaculate.
The plaintiff asserts that he is a perfect candidate for post-conviction DNA testing, contending that the results could provide exculpatory results, which could be a basis for proving innocence. The plaintiff concedes that the results could also be inconclusive or could demonstrate his guilt. The plaintiff argues that the remedy he seeks, performing the DNA tests, does not require his release nor does it invalidate his outstanding criminal judgment.
Plaintiff alleges in his first amended complaint, brought pursuant to 42 U.S.C. § 1983, that the defendant, Commonwealth's Attorney Horan, acting under color of state law, has deprived him of his constitutional rights. Plaintiff's claims for relief are: (1) That the defendant has deprived plaintiff of due process under the Fourteenth Amendment by refusing to search for and provide the evidence for DNA testing; (2) that by refusing to provide the evidence for DNA testing, defendant has deprived plaintiff the opportunity to show he is innocent, in violation of the Fourteenth and Fifth Amendments; (3) that by refusing to search for and provide the evidence for DNA testing plaintiff cannot make a truly persuasive showing of innocence, in violation of the Cruel and Unusual Punishment Clause of the Eighth Amendment; (4) that by refusing to search for and provide the evidence for DNA testing, the plaintiff is deprived of his right to present evidence of innocence before a court or pardon board in violation of the Confrontation and Compulsory Process Clauses of the Sixth Amendment; (5) that by refusing to search for and provide the evidence for DNA testing, defendant has deprived plaintiff of the opportunity to litigate his claim that he is innocent, effectively denying him access to the courts in violation of the Fourteenth and First Amendments; and (6) that defendant has deprived plaintiff of availing himself of the opportunity to seek clemency, which violates the constitutional rights articulated in Herrera v. Collins, 508 U.S. 390 (1993).
The plaintiff is seeking equitable relief including a search for and release of the biological evidence including the rape kit, reference samples of the co-defendant, as well as the panty hose and maroon shirt found at the rape scene, and that this evidence be transferred to Dr. Paul Ferrara for DNA testing.
Discussion
Summary judgment is appropriate where there is no genuine issue as to any material fact. See Fed.R.Civ.P. 56(c). Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). A material fact in dispute appears when its existence or non-existence could lead a jury to different outcomes. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue exists when there is sufficient evidence on which a reasonable jury could return a verdict in favor of the non-moving party. See id. Mere speculation by the non-moving party "cannot create a genuine issue of material fact." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985); See also Ash v. United Parcel Serv., Inc., 800 F.2d 409, 411-12 (4th Cir. 1986). Summary judgment is appropriate when, after discovery, a party has failed to make a "showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When a motion for summary judgment is made, the evidence presented must always be taken in the light most favorable to the non-moving party. See Smith v. Virginia Commonwealth Univ., 84 F.3d 672, 675 (4th Cir. 1996) (en banc).
The court found when the court denied the defendant's motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), that the refusal by the Commonwealth's Attorney to turn over the evidence for DNA testing constitutes a denial of due process under the Fourteenth Amendment to the United States Constitution. See Harvey v. Horan, 119 F. Supp.2d 581, 584 (E.D. Va. 2000). Because of the procedural posture of a Rule 12(b)(6) motion, i.e., a Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint and should be granted only if it appears beyond doubt that a plaintiff can prove no set of facts in support of its claim which would entitle it to relief, See De Sole v. United States, 947 F.2d 1169, 1177 (4th Cir. 1991); Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir. 1989), the court did not elaborate on its findings. The court is not persuaded by the defendant's argument in support of his motion for summary judgment any more than it was on defendant's 12(b)(6) motion, in which the court found that the plaintiff had stated a cause of action for denial of due process. At this time, the court finds it appropriate to elaborate on its findings.
Defendant's Motion for Summary Judgment
The defendant, in his motion for summary judgment, disputes that the plaintiff is the perfect candidate for post-conviction DNA testing, arguing instead, that allowing such testing would make a "mockery" of the system. Def. Memo. at 2. The defendant bases this argument on deposition testimony from the co-defendant, Steve Lawrence, and Curtis Ivy. In his deposition, Mr. Lawrence testified that Harvey instigated the attack and that the plaintiff admitted he was unable to ejaculate while raping the victim, which is why he proceeded to sodomize her. Lawrence claims that the plaintiff did not appear to ejaculate even then. Curtis Ivy's deposition testimony is that the plaintiff threatened Ivy shortly before the criminal trial. The defendant argues this is further evidence of the plaintiff's guilt. United States v. Van Metre, 150 F.3d 339, 352 (4th Cir. 1998), United States v. Hayden, 85 F.3d 153, 158-159 (4th Cir. 1996). The defendant also notes that the only reason the victim was unable to identify the plaintiff as one of her assailants is because the plaintiff beat and choked her. Next, the defendant argues that the gravamen of this case is whether DNA testing of biological evidence is more likely than not to produce evidence that if it had been considered by a reasonable juror would have resulted in the plaintiff's acquittal. O'Dell v. Netherland, 95 F.3d 1214, 1249 (4th Cir. 1996) (en banc), affirmed, 521 U.S. 151. The defendant argues that the answer is no. However, O'Dell is a habeas corpus case and, therefore, distinguishable. It is also a premature argument. Assuming arguendo that O'Dell applies, the victim identified the plaintiff as the first assailant. The first perpetrator was the one who orally sodomized the victim. Spermatozoa was recovered from the victim's mouth. The court concludes that if this is what occurred, and if the mouth sample's DNA does not match the plaintiff's DNA, this would constitute powerful exculpatory evidence. Thus, plaintiff probably satisfies O'Dell were it to apply.
The defendant also looks to Mebane v. State, 902 P.2d 494 (Kan.App. 1995) (affirming the denial of post-conviction DNA testing because, inter alia, more that one perpetrator was involved) and People v. Gholston, 697 N.E.2d 375 (Ill.App. 1 Dist. 1998) (holding that the strength of the evidence connecting the defendant to the crime is a factor to be considered) for support of his position. The defendant also argues that it is plaintiff's burden to prove that the alleged unapprehended rapist for whom he claims he has been mistaken did, in fact, ejaculate. People v. Savoy, 722 N.E.2d 220, 224-226) (Ill.App. 3 Dist. 1999). However, the cases cited by the defendant involve numerous perpetrators, not merely two, one of whom allegedly did not ejaculate.
In Jenner v. Dooley, 590 N.W.2d 463 (S.D. 1999) the South Dakota Supreme Court stated that "only in extraordinary circumstances should a court allow post-conviction testing." Id. at 472. However, the court finds the analysis in Matter of Dabbs v. Vergari, 570 N.Y.S.2d 765 (1990) applicable. The court stated that, "[b]y a parity of reasoning, where evidence has been preserved which has high exculpatory potential, that evidence should be discoverable after conviction. Due process is not a technical conception with a fixed content unrelated to time, place and circumstances ( Cafeteria Workers v. McElroy, 367 U.S. 886). It is flexible and calls for such procedural protections as the particular situation demands. ( Morrissey v. Brewer, 408 U.S. 471, 481)."
The defendant also cites Spencer v. Murray, 5 F.3d 758, 766 (4th Cir. 1993), cert. denied, 510 U.S. 1171 (quoting Herrera v. Collins, 508 U.S. 390 (1993)), arguing that the plaintiff has not met the extraordinarily high standard of proof required to establish that denial of post-conviction DNA testing in this case is a constitutional violation. However, Spencer is readily distinguishable, as it was a capital habeas case, whereas the instant case is brought pursuant to 42 U.S.C. § 1983. The defendant also argues that this is not a Brady case, see infra, but, rather a United States v. Custis, 988 F.2d 1355 (4th Cir. 1993) case. However, it is also premature to consider the Custis criteria. See id. at 1359. The defendant also dismisses plaintiff's argument based on the report entitled POSTCONVICTION DNA TESTING: RECOMMENDATIONS FOR HANDLING REQUESTS, at 4-5 (NIJ 1999) ["1999 REPORT"] available at http://www.ncjrs.org/pdffiles1/nij/177626.pdf as non-admissible hearsay. The 1999 REPORT categorizes requests for post-conviction DNA testing into five categories and provides a sound framework for analysis of requests. Id. According to the Report, the plaintiff's case falls into Category 2. In Category 2 a number of factors are to be considered. Plaintiff also suggests that Harvey could fall into Category 1, if, for example, the DNA testing confirmed DNA from two perpetrators, neither of which match the plaintiff's DNA. Therefore, the court rejects the defendant's arguments.
"These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, exclusionary results would support the petitioner's claim of innocence, but reasonable persons might disagree as to whether the results rule out the possibility of guilt or raise a reasonable doubt about guilt. This category also includes cases in which, for policy and/or economic reasons, there may be disagreement as to whether DNA testing should be permitted at all or, for indigent inmates, at State expense. As the recommendations below indicate, the decision on whether this is a case for testing may have to be made by a judicial officer, who may also wish to ensure the defense counsel is available. These cases may raise difficult policy issues about how far post-conviction relief should reach. Bearing on the decision to test will be factors such as:
• The other evidence in the case.
• Whether the conviction was based on a guilty plea, a no contest plea, or a trial.
• The availability of DNA testing at the time of trial.
• The type of DNA technology available at the time of trial.
• The petitioner's current status." Id. at 5.
Interestingly, the defendant asserts that his policy is to authorize post-conviction DNA testing where there is a reasonable likelihood that it will establish the innocence of the convicted person. Horan aff. ¶ 3. However, the defendant has not noted even one actual case where he implemented this policy.
Plaintiff's Motion for Summary Judgment
A constitutional basis for access to biological evidence was recently noted by Judge Berrigan in the Eastern District of Louisiana. "The court previously held that the plaintiff's request for the rape kit was not subject to dismissal for frivolousness." Charles v. Greenberg, 2000 WL 1838713, *3 (E.D. La. 2000) (The evidence was eventually turned over voluntarily, not pursuant to a court order and ultimately exonerated the plaintiff). The District Judge also noted that the plaintiff ". . . is riding the crest of a new body of law using the latest science to free innocent men and women." Id. Likewise, the plaintiff is also riding the crest of this new body of law.
The court finds that, pursuant to Brady v. Maryland, 373 U.S. 83 (1963), the plaintiff has a due process right of access to the DNA evidence and to conduct DNA testing upon the biological evidence, as such evidence could constitute material exculpatory evidence. "Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682 (1985). Under Brady, a defendant must prove three elements to establish a due process violation. These are: (1) the prosecution withheld or suppressed evidence; (2) the evidence is favorable; and (3) the evidence is material to the defense. Moore v. Illinois, 408 U.S. 786, 794-95 (1972). Brady applies to evidence discovered post-conviction. Royal v. Taylor, 188 F.3d 239, 245-46 (4th Cir. 1999). One purpose of Brady is to ensure that a miscarriage of justice does not occur. United States v. Bagley, 473 U.S. at 675.
Here, denying the plaintiff access to potentially powerful exculpatory evidence would result in such a miscarriage of justice. What is at issue at this juncture, is not, as the Commonwealth's Attorney suggests, the plaintiff's actual guilt or innocence. What is at issue is whether the plaintiff has made a sufficient showing that access to the new evidence is necessary for the plaintiff to ultimately raise an argument pursuant to, inter alia, O'Dell or Custis. Whether or not the evidence will ultimately be more likely than not to produce an acquittal, neither the plaintiff nor anyone else knows at this time. Whether the DNA evidence is sufficiently persuasive to warrant an acquittal is for the state trial court to decide ultimately. At that time, the standard articulated in Custis would most likely apply, but that is not for this court to decide.
The proffers by Commonwealth's Attorney Horan of the additional evidence of the plaintiff's guilt misses the point, and may well, should there be a retrial, produce another conviction. In this case, with the lack of a positive identification of the plaintiff as one of the perpetrators, and after examining the victim's trial testimony and considering the credibility of the state's witnesses the court concludes that these factors all point to conducting an examination of the additional, potentially exculpatory evidence through STR DNA testing.
The court also finds that it need not decide defendant's motion to quash the testimony of Dr. Ferrara, on the basis that it is moot.
Conclusion
For the foregoing reasons, the plaintiff's motion for summary judgment is granted and the defendant's motion for summary judgment is denied.
ORDER
This matter is before the court on the defendant's motion for summary judgment and the plaintiff's motion for summary judgment, pursuant to Fed.R.Civ.P. 56. Upon consideration of the parties' submissions and for the reasons states in the memorandum opinion filed today, it is hereby
ORDERED that:
1. Defendant's motion for summary judgment is DENIED;
2. Plaintiff's motion for summary judgment is GRANTED; therefore the defendant shall release the biological evidence including the rape kit, reference samples of the co-defendant, as well as the panty hose and maroon shirt found at the rape scene, and transfer this evidence to Dr. Paul Ferrara for STR DNA testing.
3. Defendant's motion to quash, or, in the alternative, in limine is DISMISSED as moot.