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In an unusually hesitant ruling, a panel of the 11th U.S. Circuit Court of Appeals has revived a death row inmate’s efforts to obtain evidence that could exonerate him through DNA testing. The decision saved from dismissal a civil rights suit brought by Danny Joe Bradley, who since 1983 has been awaiting execution in Alabama for the rape and murder of his 12-year-old stepdaughter. Bradley asked a federal court last year to order the state to produce his stepdaughter’s clothes, bed sheets and the rape kit used to examine her so that he could have them tested for DNA, arguing that the results could establish his innocence. Because Bradley had already exhausted his appeals and habeas corpus challenges, a U.S. district judge dismissed the suit. The judge concluded Bradley’s case was the “functional equivalent” of a second or successive habeas corpus challenge, which a 1996 law prohibits except under extraordinary circumstances. The 11th Circuit panel of Chief Judge J.L. Edmondson and Judges Rosemary Barkett and Stanley F. Birch Jr. reversed. They declared that since Bradley’s suit could not on its own overturn his conviction or sentence, it did not amount to a second or successive habeas corpus suit. In the controlling decision, Barkett wrote that “if Bradley is successful in his lawsuit, his conviction and sentence will not be called into question, since the only thing he will have secured is access to evidence.” Bradley v. Pryor, No. 01-16442 (11th Cir. Sept. 23, 2002). The other two judges concurred but expressed reservations. Edmondson wrote separately “to stress that Bradley has at no time in this federal case asked a federal court to enjoin Alabama from executing him or even to stay his execution until his section 1983 case is decided. The lack of a request for a federal court to stop or postpone the State execution is important to my decision. “I hint at no view about whether Bradley’s lawsuit actually states a claim upon which relief can be granted,” Edmondson added. Birch wrote that he concurred “dubitante” — with doubt. “I am inclined to affirm the judgment based upon my conclusion, tentative though it be, that under the circumstances presented here the petitioner does not enjoy a substantive or procedural due process right to the relief he seeks,” wrote Birch. But before a court decides that issue, Birch added, more thought should go into this question: “[J]ust what rights, if any, does a convicted petitioner, who has exhausted his direct appeals and post-conviction avenues of relief, enjoy relative to discovery and testing of DNA evidence?” AT ODDS WITH 4TH CIRCUIT The 11th Circuit’s decision muddies the waters nationwide because it conflicts with a ruling in a similar case by the 4th Circuit, which covers Maryland, North Carolina, South Carolina, Virginia and West Virginia. Such a split among circuits can prompt review by the U.S. Supreme Court. “The Supreme Court has tried again and again over the past 30 years to draw a clear line distinguishing prisoner habeas corpus actions from prisoner civil rights suits, but the circuit split that the 11th Circuit just created shows that the line remains very unclear,” said Howard J. Bashman, who chairs the appellate group at Philadelphia’s Buchanan Ingersoll and hosts “How Appealing,” a Web log devoted to appellate litigation. Kent Scheidegger of the California-based Criminal Justice Legal Foundation said the Supreme Court might take up the issue, but state laws giving prisoners better access to DNA evidence might end the problem. “If the high court thinks the legislative branch is going to deal with it, then they probably will not take the issue,” said Scheidegger. Before any Supreme Court justices get involved, however, the state of Alabama will seek review from the full 11th Circuit, according to a spokeswoman for state Attorney General Bill Pryor. She added an execution date has not been set for Bradley. Pryor had no further comment on the decision. Bradley’s lawyer, insurance litigator Theodore A. Howard of Washington, D.C.’s Wiley Rein & Fielding, could not be reached to discuss the case. The 11th Circuit’s decision is a notable exception to its frequent rejection of civil rights suits brought by condemned prisoners, according to capital punishment expert Stephen B. Bright of the Southern Center for Human Rights. Bright, who is not involved in the case, pointed out that the 11th Circuit refused to hear civil rights suits brought by prisoners challenging the due process fairness of parole boards or claiming Florida’s electric chair violated guarantees against cruel and unusual punishment. Bright added that this case illustrates “the tremendous power of DNA” evidence. Indeed, the Innocence Project, a New York-based nonprofit legal clinic, claims 110 prisoners have been exonerated by post-conviction DNA testing. Bradley presumably wants DNA testing to show that semen with his blood type that was found on his stepdaughter’s clothes and sheets from her bedroom was not his. But the 11th Circuit’s review of Bradley’s case in 2000 revealed a significant amount of other evidence against Bradley. The court cited, among other things: testimony of a police officer who saw Bradley near where the body later was discovered; fibers in the trunk of Bradley’s car that matched the girl’s clothing; and fibers of her clothing that were found under his fingernails. Bradley v. Nagle, 212 F.3d 559 (11th Cir. 2000). Edmondson, Birch and Barkett comprised the 2000 panel and the current panel. They span the court’s ideological spectrum, with Edmondson considered one of the court’s staunchest conservatives, Birch more moderate, and Barkett liberal. The issue also seemed to intrigue the 4th Circuit, which is considered even more conservative than the 11th. Judges there split 2-1 in a ruling that contradicts Bradley. The full 4th Circuit then refused to hear the case because a new Virginia state law allowed the inmate to get the evidence being sought. But one of the 4th Circuit’s most conservative members — Judge J. Michael Luttig, a former clerk to Supreme Court Justice Antonin Scalia — authored an extensive explanation as to why he would have wanted to hear the case, because he thought the panel opinion was wrong. “The results of any DNA tests that are eventually performed may be inconclusive, they may be insufficiently exculpatory, or they may even be inculpatory,” Luttig wrote. “That these scientific possibilities exist, in and of itself, suffices to establish that the asserted right of mere access is not a direct, or for that matter even an indirect, attack on one’s conviction or sentence.” Harvey v. Horan, 285 F.3d 307 (4th Cir. 2002).

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