Fourth Circuit Court of Appeals Judge Michael Luttig...

Fourth Circuit Court of Appeals Judge Michael Luttig recently stated in an opinion that post-conviction DNA testing for inmates is a constitutional right. Chief Judge Harvie Wilkinson III also wrote that inmates should be allowed access to such testing, perhaps through legislation. Wilkinson and Luttig are among the nation's most conservative judges and have both been mentioned as possible choices as Bush appointees to the U.S. Supreme Court, should a vacancy in the Court arise. The opinions were written in the case of James Harvey, a man serving a 40-year prison term for a sexual assault for which he maintains his innocence. A federal panel rejected his request for DNA testing, and the full court was reconsidering the request. Although the court did not grant a rehearing, both Luttig and Wilkinson wrote opinions stating that Harvey should be given access to DNA testing. "Our system of justice . . . is capable of producing erroneous determinations of both guilt and innocence," Luttig wrote. "A 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, I believe, as a matter of basic fairness."