good morning your honor may it please the court my name is jack suga counsel for the appellant mr derrick lamar the case before you today is about a man who over the last twenty years has maintained that he is innocent of the crime for which he was convicted to demonstrate his innocence mr lamar's tried to rely on two components of virginia's post conviction d n a testing statute first section three twenty seven point one a which authorizes virginia trial courts to order scientific because your honor we're not challenging that the district court or i'm sorry the state court opinions were incorrect we're assuming for the purposes for purposes of this lawsuit that they were correct what we're challenging is that the requirements applied by the state of all of the requirements are unconstitutional as applied what he's alleging is that in particular the ban on retesting of biological evidence violates the due process clause retesting violates retesting biological evidence essentially prove three elements in the first is that he has a could not a civil liberty interest and in this case it's not disputed that mr lamar has satisfied that first element the interveners have acknowledged in their briefing on page seventeen eighteen that mr lamar does have a liberty interest in attempting to demonstrate his innocence through the pursuit of a writ of actual innocence and indeed that is precisely the type of liberty interest considered and lamar so the only real element in dispute in this case is mr the third element of mr lamar's procedural due process claim which is whether the state the procedures in virginia are constitutionally inadequate to ring to kate that substantive right provided by the commonwealth if any challenge that under the medina test which asks whether an operation any any procedure in virginia transgresses fundamental fairness what he's asserting is that the interpretation of a complete ban on retesting of evidence violates fundamental fairness in operation most notably because it cuts against the core objective of our criminal justice system and indeed the purpose of the d n a testing statute which is to ensure the accuracy of our convictions and this case that objective is especially important because it is now possible to determine whether biological tissue matches with certainty the suspect or in this case the convicted person and judge  a testing which is one of the tasks that mr lamar's saw in his petitions represents an exponential increase in the reliability of forensic identifications over earlier techniques and indeed current generation s t r systems have matching probabilities on the order of one in one quadrillion that's a one followed by fifteen zero s and i think that level of accuracy matters in this case because well they said the first one was when two million or so that's correct the this court wanted to rule in favor of mr lamar it would not have to say that any time technological advancements in testing procedures occur that all biological evidence in every case needs to be retested using the modern more accurate method there is a limiting principle at play here and that is what at some point in time the technology advances to the point where the d n a the modern d n a test can identify the source of the biological material through a statistical certainty and with respect to the s t r test that point in time is now so in this case we're comparing two tests where the test conducted in one thousand nine hundred eighty eight due to technological shortcomings is not capable of essentially ruling honor you want to review it now i think the best remedy in this case would be yes that this court on the record and what the president cited in our brief could rule on the procedural due process issue and it in fact issue or remain  at all it didn't really address it at all that's correct and which is striking in that the four circuits prior opinion in this case actually listed the allegations that of them are as alleging including that he was alleging that his procedural right process was violated because of this blanket prohibition on retesting the district court really didn't evaluate that claim and instead misconstrued it as a substantive claim if i could for a moment return to the issue retesting the subject of this lawsuit is challenging the constitutional and the requirements used to justify the denial of the retesting evidence which was the sanitary napkin we are not challenging at the concert the requirements a constitutional basis that were used as a justification to deny his petitions for testing of the hair which was never tested in this case so this this appeal is about read the retested evidence the sanitary napkin and the reason your honor is that we know that a blanket ban on retesting evidence is unconstitutional at least in part is because the madonna court made clear that week that it is appropriate to consider whether the challenge procedure is consistent with contemporary practice and when we look at contemporary practice in this case we find that virtually virgin is virtually unique in prohibiting retesting in fact forty seven states that have these post conviction d n a testing statutes  explosively or implicitly permit retesting of evidence pursuant to nearly available technologies including every state in this circuit so for example just to provide an example north carolina permits retesting when it would quote provide results that are significantly more accurate and how do you prove that they're testing that is reported in the out of the established that well i think your honor that goes back to the point i tried to make earlier which was that when you were comparing two tests in the previous test leaves open pinions acknowledged that the s t r method is so highly discriminating and and accurate that i don't think it would really be an issue of debate that the s t r method would somehow not have the level of accuracy sufficient to warrant technologically impossible at trial that's the circumstance of this case that the s t r method was technologically impossible at trial and two when was it developed i believe it became available in virginia in two thousand and one which is the same e state court denied those petitions at least in part on the basis of that the evidence was already tested and so this is the first time that mr lamar his challenge the constitutional adequa that interpretation of virginia law but your honors i would like to say something about the second reason that this statute is unconstitutional and that's because it unfairly requires clear and convincing evidence to prove the core requirements does not permit a discovery mechanism for a petitioner to obtain the facts necessary and in and therefore certain requirement under this the statute well what would you like in this case because what you ask in whose possession this audience has been specifically whether it was transferred whether it has been altered or tampered with in some way under the under the terms meaning but the meaning of those terms in the statute and so this is important here because in two thousand and one mr lamar's very first petition was the night and part just on those grounds that he failed to assert the facts of fishing to establish elements in subsection a of the statute which includes a chain of custody requiring and so chain of custody is and he has no method to determine the answers to that question because he doesn't have possession and he said that burden ought to be on the they think of i think that the burden is formally on the petitioner but he just simply a mechanism to gather the facts sufficient to meet that you know about to accept the burden if he gets discovery that's right that's correct and so in this case because mr lamar has no method to assert the facts his right to pursue a writ of actual innocence is essentially loser here because he has no method to meet that requirement under the statute and i see that i'm almost out of time here on how to answer any questions otherwise i can take my seat fair appeal now the evidence supporting mr lamar's conviction included the victim herself identifying mr lamar as her assailant assailant another witness a security guard also identifying mr lamar position in this case supporting the purpose so because there is no substantive due process right to retesting the supreme court or close that in oz born and mr lamar does not make that here the question is whether lamar has a procedural due process right and where is the addressed in the district court opinion that all the procedural due process so i would direct the court's attention to a one forty nine through one fifty and that's where the district court specifically said that it found no precedent to suggest that procedural due process requires an inmate be provided to access with s t r testing so so the district court did addressed procedural due process in its opinion of one in two point one billion which means the likelihood that the assailant was somebody other than mr lamar is one in two point one billion at best for mr lamar and to put that into context there are only three hundred million people in the still guilty well the harm at issue here it's important to recognize that it doesn't just apply to mr lamar there's currently a backlog so there's the issue of finality of conviction broad right to retesting when there's been a highly accurate testing previously that would further expand that backlog such that individuals victims and defendants who have not been convicted of any crimes will have to wait longer for the testing results in their cases so the harm extends further than just mr lamar but there's also the interest that that this the supreme court recognized in osborne and complicated is retested for testing the table and more in the back there well the interests of the lot of time and expense we which for the in defending the constitutionality of virginia statutes it is warranted your honor and  decided so because there's no substantive due process right virginia and also wanted to make sure that justice is of course your honor and it was done with a fair trial and a fair conviction that mr lamar did receive well he says let's assume we could a once there's been a conviction already the standard is not the same as the liberty interest is not the same as somebody who has not yet been subject to a fair trial and mr lamar was subject to a fair trial and subject to d n a evidence that was highly accurate so what we're talking about here is is the question of retesting is the marginal difference between the d q alpha testing that had a level of accuracy of one in two point one billion meaning the likelihood that the assailant was someone other than mr lamar is that fast for mr lamar one in two point one billion and the s t r testing which is accurate to a level of one in four hundred billion now if if do if the process mr lamar received all process he was due to the accurate two hundred times more accurate but we're talking about margin of difference the question is whether somebody who's already been convicted subject to a fair trial and a fair appeal whether the process he's entitled to is that marginal deference and the process he's entitled to is just is minimal it's process fundamentally he can state a due process claim if the process that exists is fundamentally inadequate to vindicate the substantive right received a very accurate test both at the time and today so if mr lamar is entitled to retesting anybody who received a d q alpha testing is going to come out of the woodworks and  retesting and so because there's already an existing backlog of testing of rape kits the new the influx of additional testing is then going to compete with the the with  record but it goes to the question of the harm that the commonwealth would experience it's not just an issue of whether or not mr lamar should or should we should spend the resources to to give him the task there's a broader harm that would exist and i would also you know would like to highlight the the interest in finality of criminal convictions the question mr lamar was subject to a fair trial he was subject to a to a fair appeal so to the extent we say that there is an interest in retesting ohio what was previously highly at retesting of evidence that was previously subject to highly accurate testing would open the door to much greater to much greater harm now regarding the liberty address that you think we ought to house to show that the procedure that he received is so inadequate that it's fundamental it's fundamentally inadequate to vindicate substantive rights he has his liberty interest after being convicted of a fair trial is is small and there's only a minimal process that needs to be met in order to vindicate that right mr lamar four times went to circuit to the circuit courts in virginia and they dismissed his motion not just for the reason  second one he was represented by counsel and that two was was was dismissed for reasons beyond just the retesting it was dismissed because it was he failed to show undue delay it was  dismissed because mr lamar failed to show that the evidence he sought was not cumulative the third tast that he the third motion that he brought was dismissed because it was duplicative of a prior motion mr lamar does not contest the disagree with mr lamar's representation of virginia statute as setting forth this this blanket bar on retesting and i'll direct the court's attention to the two thousand and eleven decision administration of that test to the d n a evidence in his case have there been petitioners that have been able to get their d n a retested under this statute yes your honor so i would direct the court to a successful writ of innocence  so i think it's important to recognize that the question at issue here is not just mr lamar and retesting for him but the broader the broader interest in recasting any time there's any sort of evolution of technology and i would emphasize that this court and that the availability of technologies not available at trial cannot mean that every conviction or every criminal conviction involving biological evidence is suddenly cast into doubt mr lamar was convicted how accurate that task in fact was and all we're talking about here from a procedural due process perspective is that marginal difference between an accuracy rate of one in two point one billion when there are only seven billion people in the world and an accuracy rate of one in four hundred million which is two hundred times better it's two hundred times better but it's marginal well because the question is whether what level of procedure up that's correct your honor it's accurate to a sufficient high level to be a fair trial for somebody who was who was free right before right and had the matthews entitlement to procedural due process so it surely meets the procedural due process set forth and i was born once someone was subject to a fair trial and a fair peal so must the panel has any additional i will yield my time thank you your honor i wanted to address directly one point made by the intervene here and that is this is actually something that the district court said in its opinion and that is this case might be different if the previous test was discredited courts seem to apply that in order that this case might be different if the prior testing was somehow scientifically discredited such that it's no longer considered scientifically reliable but i don't think that quite solves the due process problem in this case either honor for example under the virginia statute the use of any prior testing precludes the retesting about evidence and i don't think there's any basis on the record before you that to conclude that in some instances the virginia state courts have allowed retesting certainly not as it as it's applied to mr lamar and in fact if you look back at the two thousand and eleven petition that denied the order denying his petition it states quite clearly that as a basis for not not testing of the sanitary napkin is because it was retested and so one can imagine a situation where the fire test had a matching product probability in the order of you know one in a billion or a one in a million or one in  hundred and so long as that test does what it purported to do it's hasn't been scientifically discredited and i don't think any fair reading of the due process clause would allow this court to conclude that bat banning retesting in those circumstances would would not give rise to a constitutional violation additionally one point that the interveners have made is that they have an interest in sort of  protecting state resources and ministry of cost and in fact justice thomas makes this point as well in the his concurring osborne opinion and in that opinion justice thomas highlights how north carolina also had a similar  backlog but i think it's important to remember that even with that backlog north carolina and i'll use that as an example because justice thomas did when he made that similar point north carolina's d n a testing statute exp allows for the retesting of evidence because as i said it recognizes that there's a fundamental fairness here involved when there's an accurate test that can allege to read guys call the new record i believe i'm not certain that this is in the record but my understanding is it cost somewhere around four hundred dollars that's my understanding of the met that i'm speculating to some sense but to put a finer point on this your honor like north carolina virginia has on its own accord recognized the value of d n a evidence and its potential to exonerate those wrongly convicted just by virtue of passing the post conviction d n a statute so while virginia or so so while states like virginia do have an interest in creating rules that regulate testing those rules need to pass constitutional muster and in this case the ban on retesting does not do so and i would like to conclude on one final point that the interviewers made which was that mr lamar's various petitions were denied for a variety of reasons but i think the question that is before this court in fact needs to be before this court is whether mr lamar suffered a procedural due process violation the question isn't really even though we see may have suffered a violation was there some other justification that that supported the state courts the nile and even if there was some other justification those justifications aren't you know harmless and in any way in this case the supreme court has held that meaningful access to justice has been a consistent theme of due process jurisprudence and this case mr lamar's petitions were dead on arrival because he was requesting the retesting about it he was never afforded meaningful access notwithstanding the other requirements and under the statute and i would also note that in this court's prior opinion in this case the in the factual record the court had access to all of the viable procedural due process claim and so too should this court conclude that because mr lamar's petitions had no likelihood of success a constitutional violation occurred and that violation is not somehow swept under the rug due to other state court rationales unless there are further questions i respectfully at ask that this court reverse the order of the district court and every man the case thank you very much for that will come down and we counsel and then call the next