[Senate Hearing 106-1061] [From the U.S. Government Publishing Office] S. Hrg. 106-1061 POST-CONVICTION DNA TESTING: WHEN IS JUSTICE SERVED? ======================================================================= HEARING before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED SIXTH CONGRESS SECOND SESSION __________ JUNE 13, 2000 __________ Serial No. J-106-88 __________ Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 74-753 WASHINGTON : 2001 ____________________________________________________________________________ For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone (202) 512-1800 Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001 COMMITTEE ON THE JUDICIARY ORRIN G. HATCH, Utah, Chairman STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware JON KYL, Arizona HERBERT KOHL, Wisconsin MIKE DeWINE, Ohio DIANNE FEINSTEIN, California JOHN ASHCROFT, Missouri RUSSELL D. FEINGOLD, Wisconsin SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York BOB SMITH, New Hampshire Manus Cooney, Chief Counsel and Staff Director Bruce A. Cohen, Minority Chief Counsel C O N T E N T S ---------- STATEMENTS OF COMMITTEE MEMBERS Page Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of Delaware....................................................... 68 DeWine, Hon. Mike, a U.S. Senator from the State of Ohio, prepared statement............................................. 11 Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin...................................................... 85 Feinstein, Hon. Dianne, a U.S. Senator from the State of California..................................................... 80 Hatch, Hon. Orrin, a U.S. Senator from the State of Utah......... 1 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 4 Schumer, Hon. Charles E., a U.S. Senator from the State of New York........................................................... 91 Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 95 Thurmond, Hon. Strom, a U.S. Senator from the State of South Carolina, prepared statement................................... 57 WITNESSES Baird, Hon. Charles F., Former Judge, Texas Court of Criminal Appeals, and Co-Chair, National Committee to Prevent Wrongful Executions, Austin, TX......................................... 49 Edmondson, Hon. W.A. Drew, Attorney General, State of Oklahoma, Oklahoma City, OK.............................................. 17 Camps, Enid, Deputy Attorney General, State of California, on behalf of Attorney General Bill Lockyear, Sacramento, CA....... 41 Clarke, George, Deputy District Attorney, San Diego County, CA, and Member National Commission of the Future of DNA Evidence, San Diego, CA.................................................. 105 Fritz, Dennis, Kansas City, MO................................... 115 Levin, Hon. Carl, a U.S. Senator from the State of Michigan, prepared statement............................................. 14 Marquis, Joshua, K., District Attorney, Clatsop County, OR, and Member, Board of Directors, National District Attorneys Association, Astoria, OR....................................... 51 Scheck, Barry C., Professor of Law, and Co-Director, Innocence Project, Benjamin N. Cardozo School of Law, and Member, National Commission on the Future of DNA Evidence, New York, NY 100 Smith, Hon. Gordon H., a U.S. Senator from the State of Oregon... 12 Spitzer, Hon. Eliot, Attorney General, State of New York, New York, NY....................................................... 36 Stevenson, Bryan A., Director, Equal Justice Initiative of Alabama, and Assistant Professor, New York University School of Law, Montgomery, AL............................................ 108 Wooley, James, Baker and Hostler, and Member, National Commission on the Future of DNA Evidence, Washington, DC.................. 117 APPENDIX Questions and Answers Responses of Joshua K. Marquis to Questions from Senator Leahy... 143 Responses of Joshua K. Marquis to Questions from Senator Feinstein...................................................... 145 Responses of Dennis Fritz to Questions from Senate Committee on the Judiciary.................................................. 146 Marquis, Joshua, Clatsop County, District Attorney's Office: letter to Senator Leahy...................................... 143 letter to Senator Feinstein.................................. 145 Additional Submissions for the Record A Broken System: Error Rates in Capital Cases, 1973-1995......... 195 Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial......... 147 Excerpt from Habeas Corpus Reform Act of 1993.................... 69 Fein, Bruce, Former Associate Deputy Attorney General, letter and attachment..................................................... 7 Johnson, Calvin, letter.......................................... 132 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, memorandum..................................................... 137 Postconviction DNA Testing: Recommendations for Handling Requests 165 Sessions, William S., Attorneys & Counselors at Law, San Antonio, TX, letter..................................................... 219 Yackle, Larry W., Professor of Law, Boston University, Boston, MA, letter..................................................... 213 POST-CONVICTION DNA TESTING: WHEN IS JUSTICE SERVED? ---------- TUESDAY, JUNE 13, 2000 U.S. Senate, Committee on the Judiciary, Washington, DC. The committee met, pursuant to notice, at 10:04 a.m., in room SD-226, Dirksen Senate Office Building, Hon. Orrin G. Hatch (chairman of the committee) presiding. Also present: Senators Thurmond, Grassley, Sessions, Leahy, Biden, Feinstein, Feingold, and Schumer. OPENING STATEMENT OF HON. ORRIN HATCH, A U.S. SENATOR FROM THE STATE OF UTAH The Chairman. Let's begin. This is a very important hearing. I want to welcome you all to the Senate Judiciary Committee's hearing on the important issue of post-conviction DNA testing, entitled ``Post-Conviction DNA Testing: When Is Justice Served?'' No one here today will quarrel with the assertion that post-conviction DNA testing should be made available when it serves the ends of justice. Reaching agreement on a practical definition for justice, however, is a difficult and different matter. After all, justice does mean different things to different people. For the survivors of brutal crimes, justice may mean the carrying out of a court-imposed sentence without prolonged appeals. For others, especially those who are morally and vehemently opposed to capital punishment, justice may mean the indefinite delay of constitutionally-imposed death sentences. As Members of Congress, we do not have the luxury of choosing one side or the other. As the elected representatives of the people and as guardians of the Constitution, we have an obligation to balance the adequacy of procedural protections afforded to defendants against the need for integrity and finality of decisions in State and Federal courts. It is my hope that in holding this hearing, we can take a first step toward reaching consensus on how best to strike this balance in the area of post-conviction DNA testing, and in doing so serving, of course, the cause of justice. Speaking of doing what is just, it is only right that at the outset of this hearing I thank Senator Leahy for his interest and leadership in this important topic. Those who know Senator Leahy as I do appreciate his knowledge of the law, his passion for the Constitution, and his willingness to take principled positions. He was among the first Members of Congress to become involved in this issue, and he came to me several weeks ago and urged this committee to undertake an examination of this issue. His bill, the Innocence Protection Act, has appropriately sparked a discussion over several important issues associated with capital punishment, and I think we should all be thankful for his initiative and his leadership. In the last decade, DNA testing has evolved as the most reliable forensic technique for identifying criminals when biological evidence is recovered. While DNA testing is standard in pre-trial investigations today, the issue of post-conviction DNA testing has emerged in recent years as the technology for testing has improved. In the last month, two prominent Governors, George W. Bush of Texas and James Gilmore of Virginia, ordered DNA testing for defendants on death row. The Governor of Illinois put a moratorium on death sentences being carried out. I might say while the exact number is subject to dispute, post-conviction DNA testing has exonerated prisoners who were convicted of crimes committed before DNA technology existed. In some of these cases, the post-conviction DNA testing that exonerated a wrongfully convicted person provided evidence that led to the apprehension of the actual criminal. Advanced DNA testing improves the just and fair implementation of the death penalty. While reasonable people can differ about capital punishment, it is indisputable that advanced DNA testing lends support and credibility to the accuracy and integrity of capital verdicts. In short, we are in a better position than ever before to ensure that only the guilty are executed. All Americans, supporters and opponents of the death penalty alike, should recognize that DNA testing provides a powerful safeguard in capital cases. We should be thankful for this amazing technological development. I believe that post-conviction DNA testing should be allowed in any case in which the testing has the potential to exonerate the defendant of the crime. To ensure that post- conviction DNA testing is available in appropriate cases, I, along with 13 other Senators, plan to introduce the Criminal Justice Integrity and Law Enforcement Assistance Act. This legislation will authorize post-conviction testing in Federal cases and encourage the States through a new DNA grant program to authorize post-conviction testing in State cases. In addition this legislation will provide needed resources to help States analyze DNA evidence from crime scenes and convicted offenders, and conduct post-conviction testing. The legal problem of post-conviction testing is fairly straightforward. Under current Federal and State law, it is difficult to obtain post-conviction DNA testing, and new trials based on the results of such testing, because of time limits on introducing newly discovered evidence. These time limits are based on the fact that evidence becomes less reliable due to the passage of time. I believe that time limits on introducing newly discovered evidence should not bar post-conviction DNA testing in appropriate cases because DNA testing can produce accurate results on biological evidence that is more than a decade old. Under my legislation, these time limits will not prevent post- conviction DNA testing, and motions for a new trial based on such testing, in cases where testing has the potential to prove innocence. Furthermore, once post-conviction DNA testing is performed, the results of such testing should be considered as newly discovered evidence under established precedents and procedures. If post-conviction testing produces exculpatory evidence, the defendant should be allowed to move for a new trial, notwithstanding the time limits on such motions applicable to other forms of newly discovered evidence. Courts should weigh a motion for a new trial based on post-conviction DNA testing results under the established precedents for motions for a new trial based on newly discovered evidence. In short, there is no need to create an additional legal procedure to consider this evidence, provided the time limits are waived in this narrow context. In the last 30 years, America's criminal justice system has experienced the crippling impact of seemingly endlesshabeas corpus appeals and frivolous prison litigation. In recent years, Congress passed and President Clinton signed into law legislation to reform habeas corpus and prison litigation procedures. I am proud to have authored these landmark statutes. America is safer and our criminal justice system is stronger because of these reforms. I am convinced that a properly drafted post-conviction testing statute will provide testing in appropriate cases and will not undermine these recent reforms. But for some critics of our criminal justice system, post- conviction DNA testing and the resulting exoneration of some wrongfully convicted persons serves as a spyhole through which one can observe a quote, ``system of law that has become far too complacent about its fairness and accuracy.'' We must remain vigilant in our efforts to ensure integrity and fairness at all levels of the system. Yet, for some, DNA testing serves as the foot in the door through which more aggressive, and I believe unwarranted reforms can follow, including a moratorium on the death penalty, an effective repeal of the habeas death row appeals reform of 1996, onerous Federal regulations for counsel in State capital cases, and more. Opponents of the death penalty believe the death penalty is on the defensive. They are promoting the tired arguments of the past and outdated and recycled studies in a coordinated effort to put capital punishment on trial. As Newsweek's Jonathan Alter recently opined in what the editors of the magazine called a Special Report, ``* * * assembly-line executions are making even supporters of the death penalty increasingly uneasy.'' Well, assembly-line executions? That is pretty much trumpery as far as I am concerned. According to the Death Penalty Information Center, there are more than 3,670 convicted killers on death row in America. Since enactment of the 1996 habeas death penalty appeals reform, 315 convicted murderers have been executed. Less than 10 percent of the people on death row have had their sentences carried out. There will likely be fewer executions this year than last year. Indeed, there were fewer executions in 1998 than there were in 1997. In the meantime, no one can point to a modern case where an innocent person has been executed. Now, I support capital punishment, but I believe it should be used only when, there is conclusive proof of guilt; the crime itself is so heinous or depraved that it warrants the ultimate sanction; and, there is no credible and appreciable evidence of discrimination. It is important to remember that 99.9 percent of capital cases are State crimes, not Federal crimes. In our Federal Republic, the issue of the death penalty in State cases is properly considered and determined by State governments. No prosecutor, attorney general, or governor wants to be responsible for the execution or imprisonment of an innocent person. We will hear testimony today about the steps our States are taking to address this issue, and as we hear the testimony, let's not forget the past. For decades, convicted prisoners, with the help of some of today's witnesses, abused the habeas corpus system in order to delay the imposition of just punishment. In my home State of Utah, for example, convicted murderer William Andrews delayed the imposition of a constitutionally imposed death sentence for more than 18 years. His guilt was never in question; he was not an innocent person seeking freedom from an unjust punishment. Rather, he committed a particularly heinous crime, a series of murders, and simply wanted to frustrate the demands of justice. What were the goals of Andrews' lawyers? I submit that his lawyers, and many lawyers who have represented death row inmates, saw their mission as making death penalty litigation so costly and protracted a prospect for the States that it would be effectively abolished. These ardent opponents of the death penalty, whose principled views and legal skills I respect, used capital resource centers and our Federal courts to effectively suspend the imposition of constitutionally and factually sound State death sentences. I am loathe to once again federally empower this type of activity. Manufactured delays breed contempt for the law and have a profound effect on the victims of violent crime. For the families of murder victims, each delay exacerbates the pain of losing their loved one. They are reminded that their son, daughter, spouse, or parent will never come home again. No birthdays, no holidays to celebrate, only the dreaded anniversary of a murder. So as we debate the future of capital punishment, we should also remember the past. I respect the views of the witnesses that we have today and look forward to hearing their testimony. So I will turn to the statement for the minority by Senator Leahy. STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Senator Leahy. Thank you, Mr. Chairman. This hearing today I hope is going to be the first of a series of hearings that might help focus the Congress' attention on steps we can take to help solve the national crisis in the administration of capital punishment. The hearing is really a first step, but an important first step, not just for capital cases but for public confidence in the fairness and integrity of our criminal justice system as a whole. In a democracy, if you do not have confidence in the integrity of a criminal justice system, it cannot operate. As the Columbia University study published this week showed, State and Federal judges have found over the past 25 years that about two-thirds of death penalty trials nationwide have been rendered unreliable by serious constitutional errors, and about 5 percent of the cases in which defendants were originally sentenced to death have ended in verdicts of not guilty on re-trial. Now, I say that if we had a hospital where two-thirds of the surgeries were botched, that hospital wouldn't stay open very long. That is basically what has happened in this part of our criminal justice system, and that is what worries a lot of people because it attacks the very credibility of our criminal justice system. The system that the study reveals is one that routinely makes grave errors and then hopes haphazardly and belatedly to correct them years later by a mixture of State court review or Federal court review and a large dose of luck. As prosecutors, defense lawyers, a judge, and a victim of the system will testify today, we have cast-iron scientific proof that a significant number of people sentenced to death in America in the late 20th century had been absolutely, undeniably innocent. A system that works in one case out of three is simply not good enough. And while we do not know whether it hashappened yet, a system that sentences a significant number of entirely innocent people to death is bound to execute one of them sooner or later. Certainly, many have wrongfully suffered, and many continue to endure years and decades in prison for crimes they did not commit. Now, the American people know this. They understand the power of modern science in the form of DNA evidence to help prosecutors and innocent defendants alike to establish the truth about guilt and innocence and to save innocent lives. In a recent poll, more than 90 percent of Americans agreed with leaders like President Clinton, Governor Ryan of Illinois, Governor Glendening of Maryland, and Governor Bush of Texas, and with conservative columnist George Will, with former Reagan administration Department of Justice official Bruce Fein, and with the American Association of Public Health Physicians. They agree that DNA testing should be available to defendants and inmates in all cases in which it has the potential to establish guilt or innocence. The American people also know that while Illinois and New York have made DNA testing available in appropriate cases, most of the States that have the death penalty have not met that standard. DNA testing has opened a window to give us a disturbing view of the defects of the capital punishment system nationwide. Just as fingerprints, when available, were a major part of evidence in the 20th century, in the 21st century DNA is the fingerprint. If it is available, then it should be available in the same way in the last century we made fingerprints available. Mounting evidence suggests that the cases in which DNA evidence has proved death row inmates innocent are just the tip of an iceberg of constitutional violations and wrongful convictions in death penalty cases--the tip of the iceberg, but DNA is a good starting point. For more than a year, I have been working on these issues with prosecutors and judges and defense counsel, with both supporters and opponents of the death penalty, and with Democrats and Republicans. At the beginning of the year, I spoke to the Senate about the breakdown in administration of capital punishment across the country and I suggested some solutions. I noted then that for every seven people executed, one death row inmate has been shown sometime after conviction to be innocent of a crime. Since then, many more fundamental problems have come to light. I want to emphasize that DNA is not the magic answer by itself. This is not simply a case of whether DNA should be available. There is a lot more to it than that--more court- appointed defense lawyers who slept through trials in which their clients have been convicted and sentenced to death. In fact, 43 of the last 131 executions in Texas, according to an investigation by the Chicago Tribune, had lawyers who were disbarred, suspended, or otherwise being disciplined for ethical violations. These are the people who have been appointed to represent people on trial for their lives. We have cases in which prosecutors have called for the death penalty based on the race of the victim, and cases in which potentially dispositive evidence has been destroyed or withheld from death row inmates for years. And the irony is, as every prosecutor knows, if you handle the case so poorly to begin with and it is sent up and then remanded for a new trial 5 or 6 years later, it is almost impossible to try the case again in the same way. How much better--and as a former prosecutor I know this--how much better it is to do it right the first time. We have heard from the National Committee to Prevent Wrongful Executions, a blue ribbon panel comprised of supporters of the death penalty as well as opponents, Democrats and Republicans, including six former State and Federal judges, a former U.S. attorney, two former State attorneys general, and a former Director of the FBI. That diverse group of experts has expressed itself to be, ``united in its profound concern that in recent years, and around the country, procedural safeguards and other assurances of fundamental fairness in the administration of capital punishment have been significantly diminished.'' For months, I have worked with Senators on both sides of the aisle and experts from all parts of the capital punishment system to bring about some basic, common-sense reform. The two most basic provisions of our bill would encourage governments to at least make DNA testing available in the kind of case in which it can determine guilt or innocence, and at least to provide basic minimum standards for defense counsel so that capital trials have a chance of showing innocence if it is there by means of an adversarial testing of evidence. That should be the hallmark of the criminal justice system in any event. Our bill will not free the system of all human error. Nothing can do that, but it will do much to eliminate errors caused by the willful blindness of the truth that our capital punishment system has exhibited all too often. That is the least we should demand of a justice system that puts people's lives at stake. If it puts people's lives at stake, we should seek as close to zero tolerance for mistakes as possible. I am greatly encouraged that Senators Gordon Smith and Susan Collins and Russ Feingold and Jim Jeffords and others here in the Senate, and Representatives Ray LaHood and William Delahunt and 45 other members of both parties in the House have joined me in sponsoring the Innocent Protection Act of 2000. Last year, I began urging Chairman Hatch to join us in examining these critical issues. I regret that he has thus far chosen not to join in our bipartisan bill, but I am grateful that he has agreed to hold this first hearing. I am hopeful that we can work together, as we have on other issues, to get common-sense legislation enacted. So let me just respond briefly to a couple of things he said. I agree with Chairman Hatch that reforms need to be carefully measured. As I have argued on many occasions in the Senate, federalism is an important value in the criminal justice system. As a former prosecutor and as a former vice president of the National District Attorneys Association, I am always eager to consult with prosecutors at the State and local level to let the States develop their own solutions to problems, and to help provide the assistance and resources and training needed to make improvements. That is why we crafted the DNA provisions of the Innocence Protection Act with great care and with very close attention to the experiences of Illinois and New York, the two States that have led the way in DNA testing. That is why both the DNA and competent counsel provisions of the Innocence Protection Act work by encouraging States to meet minimum standards, and by giving latitude to improve on those standards, not by imposing inflexible Federalmandates. On the other hand, I am also concerned to ensure that we enact reforms that are real and effective. We don't impose technical and legalistic barriers to DNA. Our bill does not require defendants to prove their innocence before they can obtain the access to DNA evidence that might prove their innocence. Our bill goes beyond DNA evidence to address the more fundamental issue of ensuring that defendants have minimally competent counsel at trial. I have been greatly heartened by the response of experts on federalism and criminal justice across the political spectrum. If I might read just partly from a letter from Bruce Fein, who is a leading constitutional expert, a former Deputy Attorney General in the Reagan administration--he has been quoted often by Chairman Hatch and others on this panel, and so while I will submit his whole letter for the record, here is what he says. ``In my view, the proposed legislation,'' referring to ours, ``raises no serious constitutional problems, respects our traditions of federalism in the field of criminal justice, and represents a measured and fact-bound response to the documented truth-finding deficiencies in death penalty and sister prosecutions, especially where DNA evidence might be conclusive on the question of innocence.'' I appreciate Mr. Fein's excellent letter. [The letter referred to follows:] McClean, VA, June 12, 2000. Hon. Patrick Leahy, U.S. Senate, Washington, DC. Dear Mr. Senator: In response to certain detractors of the proposed Innocence Protection Act of 2000 (S. 2690), I am submitting the following observations to assist the Congress and the public in appraising the wisdom and constitutionality of the bill. In my view, the proposed legislation raises no serious constitutional problems, respects our traditions of federalism in the field of criminal justice, and represents a measured and fact-bound response to the documented truth-finding deficiencies in death penalty and sister prosecutions, especially where DNA evidence might be conclusive on the question of innocence. Too often forgotten in our uniquely admired system of justice is the understanding that in criminal prosecutions the government's duty is not necessarily to win convictions but to see that justice is done. That is the unmistakable teaching of the United States Supreme Court in Berger v. United States (1935). Moreover, our criminal justice system is informed by the venerated theory that it is better that some of the guilty go free than that an innocent be wrongly convicted. That precept, for example, explains why proof of guilt beyond a reasonable doubt is required, not simply by a preponderance or clear and convincing evidence. Justice John Harlan sermonized in In re Winship (1970): ``I view the requirement of proof beyond a reasonable doubt in a criminal case bottomed on a fundamental value determination in our society that it is far worse to convict an innocent man than to let a guilty man go free.'' Of course, some tiny risk of convicting an innocent person is inherent in any system of criminal justice because re-creating past events and motivations inescapably falls short of mathematical certitudes. But taking reasonable measures to shrink that inherent risk, as does S. 2690, not only celebrates our cherished respect for individual liberty but also the overarching government interest in seeing that justice is done, which is not synonymous with winning cases. Federalism is also a cornerstone of criminal justice. Most crimes are state or local, as are most law enforcement resources. Generally speaking, a respect for state autonomy and self-government counsel strongly against congressional forays that would disturb state law enforcement schemes and practices. But that time-honored principle is not absolute, and should be applied with prudence, without which wit is ridiculous, knowledge useless, and genius contemptible, to paraphrase philosopher Sam Johnson. Generations of Jim Crow in the South required federal criminal civil rights statutes to defend our black citizens from the predations of the KKK, the White Citizens Council, and their non-member soulmates. More recently, Congress has encroached on customary state prerogatives either directly or through the spending power because disgruntled with lenient sentencing, repeat offenders, laxness in protecting access to abortion clinics, the reliability of DNA testing protocols, or otherwise. Moreover, the entire scheme of federal habeas corpus law is built on the premise that states may run afoul of the Constitution or federal statutes in the administration of criminal justice, and that a second layer of federal protection for the convicted state criminal is thus justified. That premise is buttressed by yesterday's Columbia University death penalty study showing a 21% reversal rate in habeas corpus capital cases concerning either the verdict or sentence. In sum, federalism bespeaks a persuasive but not insurmountable presumption against congressional intrusion on state criminal justice; intervention is justified when the congressional objective is both factually credible and reasonably furthers a strong and legitimate constitutional mandate, such as diminishing the probability of convicting the innocent. Section 103 of S. 2690 would condition federal DNA grants on a certification that a recipient state has taken reasonable steps to both preserve biological material relevant to a criminal case and to enable inmates to obtain non-cumulative DNA testing that might cast reasonable doubt on their guilt. These twin federal grant conditions seem thoroughly warranted and constitutional. As in the federal unemployment compensation law and the opt-in scheme of the 1996 Anti-Terrorism and Effective Death Penalty Act, no state is coerced but only encouraged. Further, the bill finds that DNA testing has repeatedly exonerated the innocent, a virtual constitutional imperative under the United States SupremeCourt ruling in Herrera v. Collins, and an urgent government objective in the administration of criminal justice generally. Section 103 is thus reasonably related to forestalling and curing violations of the due process clause of the Fourteenth Amendment, and thus easily passes constitutional muster as grant-in-aid provisions. Separate from the constitutional question is the prudential issue of whether the administrative vexations in implementing the DNA testing conditions are not worth the candle of exonerating an occasional innocent inmate. To answer ``yes'' seems against the spirit of liberty that infuses criminal justice; it is also undercut by the practice in both New York and Illinois to offer post-conviction DNA testing opportunities, which have yielded 7 and 14 exonerations, respectively. The government burden imposed by section 103, however, smack more of the featherweight than the heavyweight. No gathering of new DNA evidence is required; no perpetual preservation of stale evidence for the likes of archeologists is mandated; and, no new testing is stipulated if the results are unlikely to yield noncumulative exculpatory evidence. Section 104 is a direct federal post-conviction DNA testing opportunity mandate to states bottomed on the power of Congress under section 5 of the Fourteenth Amendment to remedy or to forestall constitutional violations, which include punishing the innocent. That danger has been amply demonstrated in the absence of DNA post- conviction testing opportunities. As the bill finds: ``In the past decade, there have been more than 65 post-conviction exonerations in the United States and Canada based upon DNA testing. At least 8 individuals sentenced to death have been exonerated through post- conviction DNA testing, some of whom came within days of being executed.'' Section 104 is undisturbing to legitimate federalism concerns. At present, States resort to DNA testing to solve long unsolved crimes to convict the guilty, an impeccable objective. But States are equally enjoined under the Constitution and a cherished principle of criminal justice to exonerate the innocent. Section 104 would advance, not subvert, that state criminal justice goal. States have no greater interest in incarcerating the innocent than in stooping to racial discrimination in jury selection or prosecutorial discretion. Section 201 addresses the worrisome documented deficiencies in defense counsel in capital cases, including non-cerebral slumber, through a federal grant-in-aid incentive. It would condition certain federal law enforcement funds on the adoption by recipient States of a system of defense counsel selection for the indigent in death penalty prosecutions that the Administrative Office of U.S. courts certifies as insuring effective legal representation. That condition seems irreproachable. As the United States Supreme Court lectured in Powell v. Alabama (1932), talented defense counsel is necessary not only for fair play during trials, but to prevent conviction of the innocent, an objective exceptionally compelling in capital cases where punishment is beyond belated rectification. What is done cannot be undone, to borrow from Macbeth. Section 201 should not be burdensome to participating States because capital prosecutions constitute but a tiny fraction of all criminal prosecutions. The number of reasonably gifted defense counsel required should thus be correspondingly untroublesome. The required defense counsel standard is not Clarence Darrow, but the far more numerous uncoronated lawyers. Finally, section 201 bolsters federalism interests by slashing the probability of executing an individual who is later and conclusively proven innocent. Such a travesty in any single State would invariably arouse invincible political sentiments against capital punishment in all States, thus ending a constitutionally legitimate sentencing option. I support the death penalty in exceptionally egregious cases, and am convinced that as a political reality section 201 works to safeguard that sentencing prerogative. Section 202 is complementary. It would encourage States to upgrade death penalty counsel for indigents (and thus the reliability of capital verdicts) by strengthening federal court habeas corpus constitutional scrutiny of death sentence verdicts in the absence of a system of selecting defense attorneys certified as adequate by the Administrative Office of U.S. Courts. Since executing the innocent is a Fourteenth Amendment violation, and the Sixth Amendment requires provision of competent counsel, section 202 is reasonably related to avoiding chilling constitutional injustices; that high goal overwhelms its trivial intrusion on federalism where federal habeas corpus already exposes States to second-guessing by federal courts to insure constitutional rights are scrupulously honored. Section 401 wins a federalism blue ribbon. It would instruct the Attorney General of the United States to decline seeking the death penalty for federal crimes that are carbon copies of state prohibitions where the state prohibits capital punishment and has accepted jurisdiction to prosecute the case under state law. In such cases, the federal interest in persisting in a death sentence over the objection of state sentiments seems anemic andunpersuasive, subject to the ``one- size-fits-all'' reproach. Section 403 would establish another federal grant-in-aid condition that should command the applause of all who believe in more rather than less truthful information in sentencing proceedings. It would encourage States in capital cases to inform sentencing juries of all legally permitted options, including parole eligibility rules and terms, if death is not selected. It seems difficult to concoct any credible reason for a State to oppose fully informed sentencing juries in capital cases, except to tip the scales of justice in favor of execution, which would not be constitutional if practiced overtly under Witherspoon v. Illinois (1968). Only last week, the Virginia Supreme Court held that judges must inform sentencing juries that the state has abolished parole, extending to all criminal defendants a right previously confined to those facing potential execution. Federalism is not intended as a shield for illegitimate sentencing procedures that favor the merciless over the merciful. Section 405 deserves at least a federalism honorable mention. It would reduce cluttering state supreme courts with unwanted discretionary criminal appeals of identified claims by preventing their waiver in federal habeas corpus proceedings if that state desire is honored. What is the valid congressional interest in forcing state inmates to raise discretionary claims in state supreme courts that the latter expressly discourage? Doesn't that turn federalism on its head? Sincerely, Bruce Fein, Former Associate Deputy Attorney General, 1981-1982. Biographical Sketch of Bruce Fein Education: Swarthmore College, University of California, Harvard Law School. Graduated with Honors. Journalism: Weekly columnist for The Washington Times. Guest columnist for USA Today. International Affairs: Adjunct Scholar with the Assembly of Turkish American Associations. Law: Solo Practitioner specializing in international and constitutional law. Government Experience: Associate Deputy Attorney General, General Counsel to the Federal Communications Commission, Counsel to the Congressional Iran-contra committee. Think Tank Associations: Visiting Scholar with the Heritage Foundations, Adjunct Scholar with the American Enterprise Institute. Congressional Experience: Testified as an expert witness before congressional committees on more than 50 occasions. Additional Expertise and Qualifications: Impeachment. At the Department of Justice under Attorneys General Elliot Richardson and William Saxbe, meticulously examined and advised on presidential impeachment issues raised by President Nixon's complicity in the Watergate scandal and Vice President Agnew's complicity in bribery. Testified before a congressional commission exploring problems with impeaching federal judges. Published scores of newspaper columns and held two nationally televised press conferences addressing Monicagate and potential indictment or impeachment of President Clinton. Constitutional law. Featured on the cover of the American Bar Association Journal for article expounding on the proper role of the United States Supreme Court in constitutional interpretation. Authored a monograph on the Federalist Papers and importance in contemporary constitutional thinking. Testified on scores of occasions before the House and Senate Judiciary Committees on pending resolutions and bills that raise constitutional issues, including constitutional amendments. Testified before the SenateJudiciary Committee in support of the Supreme Court nominations of Chief Justice William Rehnquist and Associate Justice Antonin Scalia. Private legal practice pivots on constitutional law. Supervised constitutional litigation at the Department of Justice and claims of executive privilege. Criminal Law. Supervised the Criminal Division's litigation at the Department of Justice and use of the Foreign Intelligence Surveillance Act and the Classified Information Procedures Act. Civil Rights Law. Supervised civil rights affirmative action litigation and legislation at the Department of Justice, especially the issues of racial and gender preferences and workplace liability. Similar issues were handled regarding race and gender preferences as General Counsel of the Federal Communications Commission. International Law. Have advised numerous foreign countries in the drafting of constitutions. Prepared commentaries on the proposed international criminal court and the teachings of the Nuremberg and Tokyo war crimes tribunal. Testified before the Senate Foreign Relations Committee on various treaty issues, including the constitutionality of the World Trade Organization Act and the Helms- Burton law. Appointment of Federal Judges. Was a central figure in the appointment of federal judges at the Department of Justice, including the nomination of Supreme Court Justices. Authored a Harvard Law Review article on the proper role of the Senate in the confirmation process. Coordinating Congressional Investigations with Parallel Grand Jury Inquiries. At the Justice Department during the Watergate investigation and as Research Director of the congressional Iran-contra joint congressional committee during the Iran-contra investigation, aided the coordination of the parallel criminal and legislative proceedings to avoid conflicts or interference in achieving the competing objectives to the two branches. Media prominence. According to National Law Journal, he is one of the six most quoted attorneys in the mass media. He has more than 500 television and radio appearances to his credit. Senator Leahy. I look forward to working with everybody else here, but I also want to thank you again, Mr. Chairman, for proceeding with the hearing. I want to thank Senator Smith, who is here, and Congressman LaHood and Congressman Delahunt. I commend Senator Feingold for his leadership on these issues, and Senators Kohl, Feinstein, and Schumer, and you, Mr. Chairman, for your interest. I have other matters I would put in the record, including a portion of Professor Liebman's report, portions of two reports by the National Institute of Justice relating to post- conviction DNA testing, a letter to me from Professor Larry Yackle, of the Boston University Law School, and a letter that you and I have received from former FBI Director William Sessions. [The information referred to is located in the appendix.] Senator Leahy. I would ask that we might keep the record open for statements from others for maybe a few days, if we might, Mr. Chairman. The Chairman. Without objection, we will do that. Senator Leahy. And, last, I would just leave everybody with this thought. Don't think that DNA is going to be the magic bullet because there are a lot of cases that every prosecutor and every defense attorney--and I see a lot of heads shaking yes; they know what I am going to say. A lot of prosecutors and a lot of defense attorneys in this room know that there are a lot of cases where there is no DNA evidence, just like there are a lot of cases where there is no fingerprint evidence or there is no blood sample. There are none of the things that you might see in a television show. But we should at least guarantee that if it is available, it is available to both sides and, secondly, that there be competent counsel on both sides. When we hear some of these horror stories, we should ask ourselves would any one of us, if we were charged with a serious traffic case, to say nothing about something where we might get the death penalty--but even with a serious traffic case, would we accept as lawyers some of the incompetent lawyers that have defended people who have ended up on death row. Thank you, Mr. Chairman. The Chairman. Thank you, Senator. At this point, I would like to enter into the record a prepared statement of Senator DeWine. [The prepared statement of Senator DeWine follows:] Prepared Statement of Hon. Mike DeWine, A U.S. Senator From the State of Ohio Mr. Chairman, thank you very much for holding this important hearing on post-conviction DNA. Existing anti-crime technology can allow us to solve many violent crimes that occur in our communities, as well as clear those who have been wrongfully accused of a crime. I have been a long-time advocate for use of the Combined DNA Indexing System (CODIS), a national DNA database, to profile convicted offender DNA. In fact, during consideration of the Anti-Terrorism Act of 1996, I proposed a provision under which federally convicted offenders' DNA would be included in CODIS. Unfortunately, the Department of Justice never implemented this law, though currently all 50 states collect DNA from convicted offenders. Also, in 1998, I sponsored the Crime Identification Technology Act, which was enacted into law. This Act authorizes $250 million for crime identification technology, and sets aside at least 20 percent to improve state and local crime laboratories which perform DNA testing. In FY00, $35 million was appropriated for assistance to state and local DNA laboratories under this Act to begin addressing the serious backlog of state cases awaiting DNA analysis, as well as convicted offender DNA testing. This Congress, I introduced the ``Violent Offender DNA Identification Act of 1999,'' with my colleague Senator Herb Kohl. One of the purposes of that legislation is to expressly require the collection of DNA samples from federally convicted felons and military personnel convicted of similar offenses. Collection of convicted offender DNA is crucial to solving many of the crimes occurring in our communities. This bill also would provide about $30 million, over four years, to help state and local crime laboratories address their convicted offender backlogs. I believe any effort to encourage post-conviction testing will be successful only if we are able to substantially eliminate the DNA analysis backlog in our state and local laboratories. The FBI estimates that there are about 450,000 convicted offender samples in state and local laboratories awaiting analysis. Increasing demand for DNA analysis in active cases, and limited resources, are reducing the ability of state and local crime laboratories to analyze their convicted offender backlogs. I look forward to hearing the testimony of our distinguished panels. In particular, I appreciate the attendance of James Wooley, who is a former Assistant United States attorney in Cleveland, and now a partner in the law firm of Baker & Hostetler. Thank you, Mr. Chairman. The Chairman. We will start with Senator Smith as our first witness and then we will go through the rest of the panel. Senator Smith. STATEMENT OF HON. GORDON H. SMITH, A U.S. SENATOR FROM THE STATE OF OREGON Senator Smith. Good morning, Mr. Chairman. I thank you and this committee for holding this hearing on the important issue of DNA testing in our criminal justice system. I am sure you have all noticed the many and prominent news stories about this issue and the attention it has received in recent days from presidential candidates. Clearly, post- conviction DNA testing is an idea whose time has come. Last week, Senator Leahy and I introduced a bill that would do a number of things to improve our criminal justice system. The Leahy-Smith bill would allow prisoners in this country to have access to post-conviction DNA testing so innocent lives are not spent behind bars or waiting for execution. The bill would require competent counsel at every stage of a capital case, eliminating the possibility that defendants on trial for their lives would be represented by counsel that is unqualified, underpaid, and overworked. Furthermore, to avert a double wrong, the Leahy-Smith bill would provide fair compensation for people who have been wrongfully convicted. I understand, Mr. Chairman, that you will introduce a bill in the next few weeks that would also allow for post-conviction DNA testing in certain circumstances. As I understand the title of your bill, the Criminal Justice Integrity and Law Enforcement Act, your bill, sir, would also provide funds for States to reduce the backlog of DNA tests and develop and maintain a record of DNA of convicted offenders. Obviously, Senator Leahy, Senator Hatch and myself, among others, share a common motive of making a good system better. We should also share a common goal, producing the best legislation for our country. Both of these bills propose using modern genetic technology to improve our criminal justice system to protect the truly innocent. Senator Hatch's legislation goes beyond the Leahy-Smith bill to address the important issue of the current backlog of unanalyzed DNA samples. However, Leahy-Smith goes further than the Hatch bill to address other rare but real issues faced by the wrongfully accused; competent counsel and fair compensation for unjust incarceration. Today, you will hear from several prosecutors, including one from my own State of Oregon, Josh Marquis who is the Oregon State Director of the National District Attorneys Association and the Vice President of the Oregon District Attorneys Association. I welcome their participation and their unique perspective in this discussion. Some express concern that the Leahy-Smith legislation would impose burdensome obligations upon the States. They believe that the States should be counted upon to continue setting responsible standards for the definition of crime, punishment, and procedures to be followed in their courts. In the overwhelming majority of cases, the States do things very, very well. Oregon, for instance, spends more on defense attorneys than it does on prosecution. Officers of America's courts and law enforcement work extremely hard to ensure that true perpetrators of heinous crimes are caught and convicted. However, there have been instances where defendants have been represented by incompetent counsel. There are also a number of prisoners on death row who have never had access to DNA testing during trial simply because it did not exist at that time. My view, Mr. Chairman, is this: if you support the death penalty, you should also support every measure to make sure that the guilty and not the innocent are executed. It is that simple. When life is at stake, no step should be considered too protracted or too onerous. Setting Federal standards on access to post-conviction DNA and competent counsel are very reasonable steps to make sure that our system of criminal justice operates fairly, regardless of where you live in the 50 States. If we are to have a system that is just, transparent and defensible, we must make absolutely certain that every person who is behind bars deserves to be there. One of the best ways to do this is to make sure that the fingerprint of the 21st century is unmistakably stamped on our judicial system. We must have confidence in the integrity of justice, that it will both protect the innocent and punish the guilty. For these reasons, I urge members of the Senate Judiciary Committee, both Republican and Democrat, to work with us to produce the best possible legislation that will provide true protections to the innocent. I thank you, Mr. Chairman and members of the committee. The Chairman. Thank you, Senator Smith. We know that you have a busy day ahead of you and so we won't require you to stay. Senator Smith. Thank you, sir. The Chairman. But we appreciate your testimony and take due notice of it. Senator Leahy. Mr. Chairman, I also want to thank Senator Smith. The Leahy-Smith-LaHood-Delahunt legislation is good bipartisan legislation. I appreciate that. I would also ask consent that a statement by Senator Levin of Michigan, be entered in the record. The Chairman. Without objection, we will put it in the record. Senator Leahy. Thank you. [The prepared statement of Senator Levin follows:] Prepared Statement of Hon. Carl Levin, a U.S. Senator From the State of Michigan A Michigan murder case clearly demonstrates the need for a law, such as proposed by Senator Leahy, myself and others, which would prevent the destruction by the government of DNA evidence crucial to establishing innocence or guilt. The bill, the Innocence Protection Act, would require the government to preserve ``biological material secured in connection with a criminal case'' as long as a person is in prison in connection with that case, except that the government may destroy such material after it gives notice to the person and a court doesn't intervene to prohibit the destruction. Why should such a requirement even be necessary? A nearly 20 year old Michigan case provides a compelling answer. A young woman, Patricia Rosansky, disappeared in February 1983 in Battle Creek (Calhoun County) Michigan. Her body was found in April 1983 and an autopsy disclosed she had been brutally raped and murdered. A number of human hairs were found in her hand and semen was found nearby. Thomas David Cress was arrested about a year later and was convicted of her murder, following an almost month-long jury trial. An expert testified that Cress's hair was not similar to the hair found in Ms. Rosansky's hand. DNA tests were not available at the time of the trial to test either the hair or the semen against the defendant's hair and semen. Defendand Cress denied committing the crime and there were no eye witnesses. Cress provided alibi evidence. A number of witnesses testified (the ``testifying witnesses'') that Cress told them he had committed the crime. As stated by the Trial Court, ``There was absolutely no physical evidence linking the Defendant, Mr. Cress, to this crime. The only evidence connecting him to the crime was the testimony of several witnesses . . . all of whom testified that Mr. Cress had admitted to each of them his involvement in Ms. Rosansky's murder.'' The Jury convicted Mr. Cress and his conviction was affirmed in 1988. Four years later, in January 1992, Battle Creek police detective Dennis Mullen, a homicide detective with almost three decades' experience, who had been investigating the August 1982 murder in Battle Creek of Maggie Hume, interviewed a man named Michael Ronning in an Arkansas prison where Ronning was serving time for murder. Ronning would later confess to Detective Mullen that he killed Maggie Hume and had also killed Ms. Rosansky and a woman named Carrie Evans, all in the same Battle Creek area, in late 1982 and 1983. There was no acquaintanceship or connection of any kind between Ronning and Cress. When Detective Mullen returned from his interview in Arkansas with Ronning in January 1992, he was convinced that Ronning was the murderer of Patricia Rosansky because of his confession, because of his knowledge of facts of the scene at the crime that hadn't been made public, because of the pattern of the three rape-murders and because he lived near the three victims he confessed to have raped and murdered. Detective Mullen informed Calhoun County Prosecutor Jon Sahli promptly, both in writing and in person, that he had a confession in the Rosansky murder and that Thomas Cress was innocent of her murder. On repeated occasions during January-April of 1992, Detective Mullen, his Commander and his Police Chief all pressed Prosecutor Sahli to act on the information they had provided. Instead of calling on an expert to compare the hair samples in Ms. Rosansky's hand to Michael Ronning's hair, the prosecutor destroyed the evidence. Instead of using DNA tests, now available, to test those hair samples and the semen found near the body to the hair and semen of the man confessing to the murder (Mr. Ronning) and the man proclaiming his innocence (Mr. Cress), the prosecutor burned the evidence. On May 14, 1992, without any notice to the Detective or his Commander or the Police Chief, all of whom had repeatedly urged him to act on Ronning's confession and who had been repeatedly assured by him that the matter was being investigated, Prosecutor Sahli signed the authorization to destroy the hairs and the semen on the following ground: ``Closed no appeal.'' There is much in this case that is important that I won't comment on because it is not directly relevant to my point: we need a law such as proposed by Senator Leahy, myself and others, to prevent the destruction of DNA material relating to the trial of a person in prison, without first notifying that person and giving him a chance to seek a protective court order. For instance, among other things, this case involves the recantation of testimony, claims that testimony of the testifying witnesses had been prompted by reward money, a videotape of Michael Ronning's confession to the Rosansky murder, testimony of other witnesses challenging the credibility of that confession, an order for a new trial by the Trial Court, a change of mind and reversal of that order for a new trial by the same Trial Court, a refusal of the Trial Court to consider, for the purpose of the new trial motion, certain polygraph exams passed by Mr. Cress denying the murder and passed by Mr. Ronning admitting to the murder of Ms. Rosansky, and much else. The Trial Court ruled that the destruction of the physical evidence (the hair and the semen) by the prosecutor was irrelevant despite the police officers' repeated assertions to the prosecutor of Mr. Cress's innocence and Mr. Ronning's guilt. It would not be appropriate for me to comment here on whether the prosecutor's actions violated Mr. Cress's constitutional rights--that is an issue currently being litigated. Nor would it be appropriate for me to state an opinion on the guilt or innocence of Mr. Cress or Mr. Ronning. But in arguing for why we need a bill such as that introduced by Senator Leahy, myself and others, it strikes me as most appropriate to say that it seems to me that it is an egregious violation of fundamental fairness for a prosecutor, when told by experienced detectives that a man is in prison who they believe is innocent of a crime another man has confessed to, to destroy physical evidence instead of preserving it or DNA testing it. It strikes me as an egregious violation of fundamental fairness for a prosecutor, when told by experienced detectives that a man is in prison who they believe is innocent of a crime another man has confessed to, and that justice requires a new trial at which physical evidence under the prosecutor's control would be highly relevant, to willfully and purposefully burn that evidence. Prosecutor Sahli, by the way, kept the fact that he authorized the destruction of that evidence a secret from the Battle Creek Police Department for four years. The common sense requirement in the Leahy et al Bill is based on elemental fairness. It shouldn't be needed. But it is, and hopefully this Committee will promptly report a bill containing such a common sense protection of elemental fairness to the full Senate for our consideration. The Chairman. Thank you, Senator Smith. Senator Thurmond. Thank you, Senator, for your statement. Senator Smith. Thank you, Senator Thurmond. [The prepared statement of Senator Smith follows:] Prepared Statement of Hon. Gordon H. Smith, a U.S. Senator From the State of Oregon Good morning. I would like to thank Chairman Hatch and the Judiciary Committee for holding this hearing on the important issue of DNA testing in our criminal justice system. I'm sure you have all noticed the many and prominent news stories about this issue and the attention to it in recent days by presidential candidates. Clearly, post-conviction DNA testing is an idea whose time has come. Last week, Senator Leahy and I introduced a bill that would do a number of things to improve our criminal justice system. The Leahy- Smith bill would allow prisoners in this country to have access to post-conviction DNA testing so innocent lives are not spent behind bars or waiting for execution. The bill would require competent legal counsel at every stage of a capital case, eliminating the possibility that defendants on trial for their lives would be represented by counsel that was unqualified, underpaid, and overworked. Furthermore, to avert a double wrong, Leahy-Smith would also provide fair compensation for people who have been wrongfully convicted. Today, Senator Hatch is introducing a bill that would allow for post-conviction DNA testing in certain circumstances, the Criminal Justice Integrity and Law Enforcement Assistance Act. His, too, would also provide funds for the states to reduce the backlog of DNA tests, and develop and maintain a record of DNA of convicted offenders. Obviously, Senators Leahy, Hatch, and I, among others, share a common motive: making a good system better. We should also share a common goal: producing the best legislation for the country. Both of these bills propose using modern genetic technology to improve our criminal justice system to protect the truly innocent. Senator Hatch's legislation goes beyond Leahy-Smith to address the important issue of the current backlog of unanalyzed DNA samples; however, Leahy-Smith goes further than the Hatch bill to address other rare but real issues faced by the wrongfully accused: competent counsel and fair compensation for unjust incarceration. Today, you will hear from a several prosecutors, including Joshua Marquis from my home state who is the Oregon State Director of the National District Attorney's Association, and the Vice-President of the Oregon District Attorney's Association. I welcome their participation and their unique perspective in this discussion. Some express concern that the Leahy-Smith legislation would impose burdensome obligations on the states. They believe that states should be counted upon to continue setting responsible standards for the definition of crime, punishment, and procedures to be followed in their courts. In the overwhelming majority of cases, the states do these things very, very well. Oregon, for instance, spends more on defense attorneys than it does on prosecution. Officers of America's courts and law enforcement work extremely hard to ensure that the true perpetrators of heinous crimes are caught and convicted. However, there have been instances where defendants have been represented by incompetent counsel. There are also a number of prisoners on death row who never had access to DNA testing during trial simply because it did not exist at that time. My view is this: if you support the death penalty, you should also support every measure to make sure that the guilty and not the innocent are executed. It's that simple. When life is at stake, no step should be considered too protracted or too onerous. Setting federal standards on access to post-conviction DNA and competent counsel are very reasonable steps to make sure that our system of criminal justice operates fairly regardless of where you live. If we are to have a system that is just, transparent, and defensible, we must make absolutely certain that every person who is behind bars deserves to be there. One of the best ways to do this is to make sure that the fingerprint of the 21st century is unmistakably stamped on our judicial system. We must have confidence in the integrity of justice, that it will both protect the innocent and punish the guilty. For these reasons, I urge members of the Senate Judiciary Committee, both Republican and Democrat, to work with us to produce the best possible legislation that will provide true protections to the innocent. The Chairman. Let me introduce the first panel of witnesses. First, we will have the Hon. Drew Edmondson, the attorney general of Oklahoma. He has served as attorney general of Oklahoma since 1994. We have been with you before and we appreciate you coming and making yourself available. Our next witness is the Hon. Eliot Spitzer. I am pronouncing that right, aren't I? Mr. Spitzer. You are indeed. The Chairman. OK; that is the way I have always pronounced it. I just wanted to make sure. Eliot is the attorney general of New York. He has served as a former prosecutor and is now New York State's chief law enforcement officer. We are very grateful that you are here today. We are pleased to welcome Enid Camps, the deputy attorney general of California, who is the legal adviser of the California Department of Justice DNA laboratory. So we are honored to have you here as well. The Hon. Charles F. Baird is joining us as a former judge on the Texas Court of Criminal Appeals, and he is currently serving as Co-Chair of the Constitution Project's National Committee to Prevent Wrongful Executions. We are delighted to have you as well, and honored. Finally, we welcome Josh Marquis. Am I pronouncing your name right, Marquis? Mr. Marquis. Yes, sir. The Chairman. The district attorney of Clatsop County, OR, and member of the National District Attorneys Association, from Astoria, OR. Good morning to each of you and welcome to the hearing on post-conviction DNA testing. We are just delighted to have all of you here, as well as the second panel which we will introduce after you. General Edmondson. PANEL CONSISTING OF HON. W.A. DREW EDMONDSON, ATTORNEY GENERAL, STATE OF OKLAHOMA, OKLAHOMA CITY, OK; HON. ELIOT SPITZER, ATTORNEY GENERAL, STATE OF NEW YORK, NEW YORK, NY; ENID CAMPS, DEPUTY ATTORNEY GENERAL, STATE OF CALIFORNIA, SACRAMENTO, CA; HON. CHARLES F. BAIRD, FORMER JUDGE, TEXAS COURT OF CRIMINAL APPEALS, AND CO-CHAIR, NATIONAL COMMITTEE TO PREVENT WRONGFUL EXECUTIONS, AUSTIN, TX; AND JOSHUA K. MARQUIS, DISTRICT ATTORNEY, CLATSOP COUNTY, OR, AND MEMBER, BOARD OF DIRECTORS, NATIONAL DISTRICT ATTORNEYS ASSOCIATION, ASTORIA, OR STATEMENT OF HON. W.A. DREW EDMONDSON Mr. Edmondson. Thank you, Mr. Chairman, members of the committee. I appreciate the opportunity you have given me to present testimony here today. As Oklahoma's attorney general and a former prosecutor, I had the honor of working with Chairman Hatch and with other members of this committee on the habeas corpus reforms included in the 1996 Antiterrorism and Effective Death Penalty Act. Some of you may recall victims and family members of victims of the Murrah Building bombing who came to Washington wearing buttons with the number 17 on them and the international ``no'' symbol, signifying the 17 years of appeals for Roger Dale Stafford, a notorious Oklahoma murderer, and their hope that the process would not be that lengthy for whoever might be convicted of the act which so devastated Oklahoma City on April 19, 1995. You responded to their pleas in 1996, but now I fear, only 4 years later, you are considering legislation which might well erase those gains and throw additional, unnecessary road blocks into our judicial process. Since the death penalty was reenacted in 1976, Oklahoma has executed 27 convicted murderers, 24 since I took office in 1995. DNA testing was not an issue in any of those cases, either because there were no samples from the perpetrator left at the scene of the crime for testing or because guilt was admitted and testing unnecessary, or identity of the perpetrator was not at issue, or DNA testing was never requested. There is nothing magic about DNA. DNA identifies only its donor, not the perpetrator of the crime. DNA does not tell us when it arrived at the scene of the crime. DNA does not tell us how it arrived at the scene of the crime. DNA does not tell us who else might have been present when the crime was committed. Robert Frost said that before he would build a wall, he would ask what it is he is walling in or walling out. Before we mandate a DNA test in an individual case or by legislation, we should ask ourselves what exactly do we hopeto prove or disprove. The essential question should be, if this test turns out exactly the way the applicant turns out, will it show the applicant to be innocent? In the best of cases, DNA can provide compelling evidence. In most cases, however, including most murder cases, DNA testing is inapplicable because there are no samples connected to the suspect for testing, or irrelevant because the identity of the suspect is not an issue. What Congress may do, if it does not proceed with caution, is establish an ineffective death penalty act that awards new avenues of appeal for convicted murderers, years of additional anguish for the families of their victims, and an attack on State sovereignty that is breathtaking in its scope. Under S. 2073, the State of Oklahoma, even if it opts out of the Federal grant programs, can still be forced to adopt new hearing procedures, new avenues of appeal, new standards for representation and compensation, new jury instructions in capital cases, new requirements for preservation of evidence, and new methods for convicted murderers to sue State officials, including judges. Oklahoma enacted a DNA testing bill in this past session of the legislature. It was signed into law by Governor Keating on June 1. It gives our indigent defense system sole discretion to determine which cases to authorize for testing and priority to cases presenting the opportunity for conclusive or near conclusive proof that a person is factually innocent by reason of scientific evidence. Oklahoma recently saw a case delayed over DNA evidence. With the execution date approaching, defense attorneys alleged in pleadings that the test results would produce substantial evidence of innocence. After being denied access to the evidence by both State and Federal courts, the tenth circuit issued a stay without affording the State an opportunity to respond and the case is now on hold. The defendant in that case admitted to his participation in the kidnaping, beating, burning, and murder of an 84-year-old woman. His confession was corroborated by witness testimony, the fact that after the killing he went to a strip joint smelling of gasoline and gave a stripper the woman's wedding ring, and the statement he gave another witness that he set the woman on fire and, ``watched her jump like a june bug on a hot sidewalk.'' This scenario of justice delayed could be repeated over and over again with the mandates and lax standards of S. 2073. If the Federal Government moves in the direction to affect forensic testing in State courts, I would urge the committee to adopt the approach being suggested by Chairman Hatch. Establish policy to encourage the States to proceed in that direction. Rather than authorizing tests whenever the results might be relevant to a theory of innocence, require a prima facie showing that identity was an issue at the original trial and that the DNA test, if the results were favorable, would establish innocence sufficiently that a reasonable jury would not convict. Rather than threatening loss of funds that are providing vital law enforcement needs and victims services, establish a new funding source to assist States in implementing these new initiatives. No attorney general I know, not a single prosecutor I have ever known, and certainly no judge or jury, wants to be responsible for the incarceration, much less the execution, of an innocent person. However, I urge the committee not to succumb to the mantra and drum beat of DNA by passing legislation that tramples State sovereignty, shatters the promise of the Effective Death Penalty Act, erases the progress we have made on behalf of victims, adds little to the rights of the truly innocent, but adds years of appeals of the very guilty. Thank you very much. The Chairman. Thank you, General. We appreciate it. [The prepared statement and attachments of Mr. Edmondson follow:] Prepared Statement of W.A. Drew Edmondson Thank you Mr. Chairman, Members of the Committee. I appreciate the opportunity you have given me to present testimony today on the very important issue of DNA testing. By way of brief background, I was elected Attorney General of Oklahoma in 1994 and was re-elected in 1998. Prior to this office, I served as an elected District Attorney for ten years and was in the private practice of law for two periods, during which I had an active criminal defense caseload which included homicide cases. I was serving in the Oklahoma Legislature in 1976 when our death penalty statute was re-enacted and voted for its passage. I also had the honor of working with Senator Hatch and others on the habeas corpus reforms included in the 1996 Anti-Terrorism and Effective Death Penalty Act. Some of you may recall the victims and family members of victims of the Murrah Building bombing who came to Washington wearing buttons with the number 17 and the international ``no'' symbol on them, signifying the 17 years of appeals for Roger Dale Stafford, a notorious Oklahoma murderer, and their hope that the process would not be that lengthy for whoever might be convicted of the act which so devastated Oklahoma City on April 19, 1995. You responded to their pleas in 1996, but now, I fear, only four years later, you are considering legislation which might well erase those gains and throw additional, unnecessary roadblocks into our judicial process. Since the death penalty was re-enacted in 1976 Oklahoma has executed 27 convicted murderers, with all but three taking place during my five and one-half years as Attorney General. I have attached a very brief description of each of those cases to my written testimony to note the fact that DNA testing was not an issue in any of those cases, either because there were no samples from the perpetrator left at the scene of the crime for testing or because guilt was admitted and testing unnecessary or identity of the perpetrator was not at issue. There is nothing magic about DNA. The Innocence Protection Act of 2000 calls DNA., ``. . . the most reliable forensic technique for identifying criminals when biological material is left at a crime scene.'' That is accurate but misleading at the same time. 1. DNA identifies the donor, not necessarily the perpetrator. 2. DNA does not tell us when it arrived at the scene of the crime, only that it is there. 3. DNA does not tell us how it arrived at the scene of the crime. 4. DNA does not tell us who else might have been present when the DNA arrived at the scene or when the crime was committed. Robert Frost said that before he would build a wall he would ask himself what it is he is wanting to wall in or to wall out. Before we mandate a DNA test in an individual case or by legislation we should ask ourselves what, exactly, do we hope to prove or disprove. The essential question should be: If this test turns out exactly the way the applicant hopes it turns out will it show the applicant is innocent? Contrary to the expression of fact in the Innocence Protection Act, that DNA ``. . . . can, in some cases, conclusively establish the guilt or innocence of a criminal defendant,'' the truth is that in the best of cases a DNA test can only provide compelling evidence of either guilt or innocence. In most cases, including most murder cases, DNA testing is inapplicable because there are no samples connected to the suspect for testing or irrelevant because the identity of the perpetrator is not at issue. What Congress may do, in responding to a ``hot button'' problem which may not exist by passing a law that may not be needed, is establish an ``Ineffective Death Penalty Act'' that awards new avenues of appeal for convicted murders, years of additional anguish for the families of their victims, and an attack on state sovereignty that is breathtaking in its scope. Under S2073, the State of Oklahoma, even if it opts out of federal grant programs, can still be forced to adopt new hearing procedures, new avenues of appeal, new standards for representation and compensation, new jury instructions in capital cases, new requirements for preservation of evidence and new methods for convicted murderers to sue state officials including judges. Oklahoma enacted a DNA testing bill in this past session of the Legislature. It was signed into law by Governor Keating on June 1. While it gives our indigent defense system sole discretion to determine which cases to authorize for testing, the Act requires priority be given to cases presenting the ``opportunity for conclusive or near conclusive proof that the person is factually innocent by reason of scientific evidence.'' The Act applies to both capital and noncapital cases and is attached to this testimony. Prior to enactment of the testing bill, the Attorney General's office established a procedure for DNA review of all death penalty cases nearing the end of their appeals to determine whether there remained an issue of actual innocence which could be resolved by forensic testing. If such a case presented itself, the testing would be accomplished by agreement prior to an execution date being requested. No such case has arisen. Oklahoma, along with other states, is awaiting the product of the National Commission on the Future of DNA Evidence, which we anticipate will be a model law styled the Uniform Statute for obtaining Postconviction DNA Testing. While we have not yet seen that statute. I joined with 29 other state Attorney Generals to urge this committee and the Congress to be cautious about enacting new and onerous provisions in this area, at least until the model statute has been presented and reviewed. I have appended that letter to my testimony. Last Sunday's Tulsa World had a review of the book Actual Innocence which included a lengthy reference to the Oklahoma case of Ronald Keith Williamson, declared by the authors to have been proven innocent beyond a doubt after having been within days of being executed. It is a fact that Williamson was released on the strength of DNA testing, which showed that samples taken from the victim belonged to a third individual and not to Williamson or his co-defendant Dennis Fritz, who was also released from a life sentence. It is not true that Williamson was within days of being executed and it is arguable whether he is innocent. Oklahoma requested an execution date for Williamson in August 1994 because his most recent appeal had been denied and his next appeal had not been filed. An execution date of September 27, 1994 was set with all parties understanding that it would be stayed when the defense filed its petition for writ of habeas corpus, the next step in the process. The habeas petition was filed on September 22, 1994 and we filed a response agreeing to a stay of execution, which was granted September 23, 1994. The threat of his execution on September 27 was so remote as to be nonexistent. Williamson was not convicted ``on the strength of a jailhouse snitch'' as reported. Among the direct and circumstantial evidence of his guilt was a statement he gave to the Oklahoma State Bureau of Investigation describing a ``dream'' in which he had committed the murder. Williamson said, ``I was on her, had a cord around her neck, stabbed her frequently, pulled the rope tight around her neck.'' He paused and then stated that he was worried about what this would do to his family. When asked if Fritz was there, Williamson said, ``yes.'' When asked if he went there with the intention of killing her, Williamson said ``probably.'' In response to the question of why he killed her, Williamson said, ``she made me mad.'' The Pontotoc County prosecutor had a tough decision to make on a re-prosecution of Williamson and Fritz and concluded that conviction was highly unlikely in the wake of the DNA evidence, even though the note left at the scene said ``Don't look fore us or ealse,'' indicating multiple perpetrators. Scheck, Neufeld and Dwyer can claim Williamson as poster material for Actual Innocence, but I would look further before creating federal legislation based upon his case. Oklahoma also saw the case of Loyd Winford Lafevers delayed over DNA evidence. With the execution date approaching, defense attorneys alleged in pleadings that test results could produce substantial evidence of innocence. After being denied access to the evidence by both state and federal courts, the 10th Circuit issued a stay, without affording the state an opportunity to respond, and the case is now on hold at least until July and probably longer. Lafevers and co-defendant Cannon burglarized, beat, kidnaped and ultimately doused with gasoline and set on fire, an 84 year old woman in Oklahoma City. They were tried together, convicted and sentenced to death. The appeals court reversed and ordered they be tried separately, which was done in 1993. Separately they were convicted and sentenced to death. Each co-defendant confessed to participant. Two pair of pants were seized from Cannon's residence and were tested. They both had blood type A on them, which was the blood type for both Cannon and the victim. In argument, the state submitted that one pair of pants could belong to Lafevers and the blood could be the victim's from the beating. Lafevers denied ownership of either pair of pants, saying he washed his pants at his mother's house. Having exhausted all state and federal appeals, to file a successive one in either courthouse would require a showing of (1) new evidence of (2) actual innocence. This evidence is neither. It is not new because the defense could have run DNA tests for the retrial in 1993 and chose not to. It is not evidence of actual innocence because regardless whose blood is on those pants the evidence would not negate or even minimize the guilt of Lafevers. The tests determined the blood to be Cannon's. The defense is now testing, over the state's objection, hairs from the victim's clothing at the scene of the immolation. Again, not new and no potential for exoneration of Lafevers, and the victim's family is suffering through more delays and wondering what has happened to our criminal justice system. Fafevers not only admitted to his participation in the murder of this 84 year old woman, his confession was corroborated by witness testimony, the fact that after the killing he went to a strip joint smelling of gasoline and gave a stripper the victim's wedding ring, and a statement he gave another witness that he set the woman on fire and ``watched her jump like a junebug on a hot sidewalk.'' This scenario of justice delayed would be repeated over and over again with the mandates and lax standards of S2073. We are told there are people on death row or serving lengthy terms of imprisonment who are actually innocent and could be proven so by DNA testing. The executive director of our indigent defense system cited statistics from the Innocence Project that they had heard from 70 to 100 Oklahoma inmates so situated. I asked for names and offered to review files and, if merited, to pay for testing out of the budget of the Attorney General's Office. I have attacked exhibits verifying that offer. Four months later those prisoners continue to languish and I have yet to be provided with a single name of a single prisoner who is arguably innocent and could be freed with a DNA test in Oklahoma. If the federal government moves in a direction to affect forensic testing in state courts, I would urge the committee to adopt the approach being suggested by Senator Hatch. Establish policies that encourage the states to proceed in this direction. Rather than authorizing tests whenever the results might be ``relevant'' to a theory of innocence, require a prima facie showing that identity was an issue at the original trial and that the DNA test, if the results were favorable, would establish innocence sufficiently that a reasonable jury would not convict. Rather than threatening loss of funds that are providing vital law enforcement needs and victim services, establish a new funding source to assist states in implementing these new initiatives. No Attorney General I know, not a single prosecutor I have ever known, and certainly no judge or jury, wants to be responsible for the incarceration, much less the execution, of an innocent person. If the legislature of Oklahoma can pass, and a conservative governor with a law enforcement background can sign, a state law facilitating forensic testing to aid the appeals of incarcerated individuals, then any state can. I urge the committee not to succumb to the mantra and drumbeat of DNA by passing legislation that tramples state sovereignty, shatters the promise of the Effective Death Penalty Act, erases the progress we have made in behalf of victims, adds little to the rights of the truly innocent but adds years to the appeals of the very guilty. Thank you. EXECUTIONS IN OKLAHOMA SINCE RE-ENACTMENT OF THE DEATH PENALTY IN 1976 ------------------------------------------------------------------------ Date of Inmate execution Facts pertinent to DNA ------------------------------------------------------------------------ Charles Troy Coleman............. 09/10/90 Shotgun slaying of elderly couple; only samples were of victims Robyn Leroy Parks................ 03/10/92 Shot gas station attendant; only samples were of victim; defendant confessed Olan Randle Robison.............. 03/13/92 Three victims shot to death; only samples were from victims Thomas J. Grasso................. 03/20/95 Confessed, waived appeals Roger Dale Stafford.............. 07/01/95 Shot a mother, father and son; only samples were from victims. Also did Sirloin Stockade murders, execution of witnesses to armed robbery Robert A. Brecheen............... 08/11/96 Surviving victim shot defendant; arrested at scene, no identity issue Benjamin Brewer.................. 04/26/96 Confessed; no DNA issues Steven Keith Hatch............... 08/09/96 Shot a mother, father, son and daughter--son and daughter lived and testified; only samples from victims Scott D. Carpenter............... 05/08/97 Pled ``no contest'', waived final appeals; only samples from victim Michael Edward Long.............. 02/20/98 Stabbed and shot 23 year old mother and five year old son--caught in backyard with knife in possession; waived final appeals Stephen Edward Wood.............. 08/05/98 While serving two consecutive life without parole sentences for murders, stabbed another inmate; waived final appeals Tuan Nguyen...................... 12/10/98 Killed wife and two cousins aged 6 and 3; only samples from victims John Wayne Duvall................ 12/17/98 Confessed; no DNA issues John W. Castro................... 01/07/99 Murdered two women, confessed; no DNA issues Sean Sellers..................... 02/04/99 Murdered convenience store clerk, then his parents; defense of satan worship; no DNA issues Scotty Lee Moore................. 06/03/99 Murdered former employer, female companion witnessed; no DNA issues Norman Newsted................... 07/08/99 Shot cab driver two times in back of head; only samples from victim Cornel Cooks..................... 12/02/99 Confessed; no DNA issues Bobby Ross....................... 12/09/99 Shot police officer three times in back of head after armed robbery interrupted; only samples from victim Malcolm Rent Johnson............. 01/06/00 Semen, blood and hair at scene consistent with defendant; DNA never requested Gary Alan Walker................. 01/13/00 Serial killer, confessed to three for life sentences, convicted of one for life without parole, convicted of instant case for death; only samples from victim Michael Roberts.................. 02/10/00 Killed 80 year old woman with knife; blood on defendant's tennis shoes; DNA never requested; defendant confessed Kelly Lamont Rogers.............. 03/23/00 Confessed; DNA done and matched Ronald Keith Boyd................ 04/27/00 Shot police officer at convenience store; only samples from victim Charles Adrian Foster............ 05/25/00 Killed elderly grocer with baseball bat and knife, fled scene for weeks; only samples from victim James Robedeaux.................. 06/01/00 Killed and dismembered live-in girlfriend; only samples from victim Robert J. Berget................. 06/08/00 Shot school teacher with shotgun, confessed; no DNA issues ------------------------------------------------------------------------ [GRAPHIC] [TIFF OMITTED] T4753A.001 [GRAPHIC] [TIFF OMITTED] T4753A.002 [GRAPHIC] [TIFF OMITTED] T4753A.003 [GRAPHIC] [TIFF OMITTED] T4753A.004 [GRAPHIC] [TIFF OMITTED] T4753A.005 [GRAPHIC] [TIFF OMITTED] T4753A.006 [GRAPHIC] [TIFF OMITTED] T4753A.007 [GRAPHIC] [TIFF OMITTED] T4753A.008 [GRAPHIC] [TIFF OMITTED] T4753A.009 [GRAPHIC] [TIFF OMITTED] T4753A.010 [GRAPHIC] [TIFF OMITTED] T4753A.011 [GRAPHIC] [TIFF OMITTED] T4753A.012 [GRAPHIC] [TIFF OMITTED] T4753A.013 The Chairman. Mr. Spitzer. STATEMENT OF ELIOT SPITZER Mr. Spitzer. Chairman Hatch, Senator Leahy, other members of the Senate Judiciary Committee, thank you for inviting me here today to address the issue of post-conviction DNA testing and how we should incorporate DNA testing more fully into the American criminal justice system. DNA testing represents an extraordinary enhancement in our ability to solve crimes. With DNA testing, we can determine whether a particular patch of blood, a hair, or a semen sample belongs to a specific individual. This evidence can exonerate individuals or it can inculpate them. An innocent person can be freed, a guilty perpetrator found. This is an extremely powerful tool, once that can bring greater guarantees of fairness to our judicial system. As a result, it is the responsibility of all involved--legislators, prosecutors, defense counsel, judges--to work together to determine the appropriate and just use of this investigative device. We as a society have made a profound commitment to avoid punishing the innocent. This is especially important to those of us who support the death penalty in appropriate circumstances. We have determined that there are instances when the crimes are so egregious that society's ultimate punishment, the death penalty, may be appropriate. But the imposition of this punishment can be justified only if we make full use of all available tools to aid in the determination of guilt or innocence. This commitment must be reflected in the choices we make about post-conviction DNA testing. It is not something to be feared, but rather to be accepted and incorporated into our criminal justice procedures and practices. Some opponents of post-conviction DNA testing have argued that it cannot conclusively prove guilt or innocence in many cases, and therefore we should not burden ourselves with stringent requirements to provide such testing. That position ignores the remarkable power of DNA testing in those cases where identification is at issue. DNA testing can provide evidence which is probative of guilt or innocence in many cases, and therefore can determine that individuals who have been incarcerated for years or even are awaiting the death penalty may be innocent of the crimes for which they have been convicted. Thus, any marginal burdens are far outweighed by the ability to prevent the punishment of the innocent. New York State has been a leader in this area, having passed legislation granting a statutory right to post- conviction DNA testing almost 6 years ago. Our experience demonstrates that post-conviction DNA testing can bolster the integrity of our judicial system without unduly burdening our criminal justice resources. In 1994, the New York Legislature amended New York Criminal Procedure Law Section 440.30 to authorize trial courts to order post-conviction DNA testing in certain circumstances. This statute requires a court to grant a defendant's request for post-conviction forensic DNA testing where a court makes two determinations; first, that the specified evidence containing DNA was secured in connection with the trial resulting in the judgment; second, that if a DNA test had been conducted on such evidence and the results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant. Although New York does not have a complete accounting of every instance in which a defendant has requested DNA testing and the outcome, our preliminary indications demonstrate that a statutory right to post-conviction DNA testing, coupled with an appropriate standard, can produce results both just and practical. In New York, the existence of DNA evidence has led to post-conviction exonerations in at least seven cases. I want to reassure this committee and my State colleagues that the existence of a statutory right to post-conviction DNA testing does not mean that there will be an avalanche of testing at great cost to a State. With an appropriate standard, not all requests will be granted. In New York, for example, a request for DNA testing can only be granted if a court determines that there exists a reasonable probability that had the results presumably favorable to the defendant been admitted at trial, the verdict would have been more favorable to the defendant. For example, in one rape case a court ordered testing where the victim had testified that she had not had sex with anyone but the rapist on the night of the crime. On the other hand, courts have rejected requests for testing where they have determined that there was not a reasonable probability that the verdict would have been more favorable to the defendant even with the results of the DNA test. For example, in 1996 a court rejected a testing request in a rape case where the defendant had conceded at trial that he had sex with the victim, but claimed that it had been consensual. The results of DNA testing would not have altered the verdict in any way. Thus, our experience in New York demonstrates that a statutory right to post-conviction DNA testing can result in innocent individuals being exonerated and released. And our experience in New York demonstrates that a statutory right to post-conviction DNA testing can be workable. Although New York has been a leader in this area and is one of only several States which have created a statutoryright to post-conviction testing, our statute still could be improved. For example, CPL Section 440.30(1-a) applies only to defendants convicted before January 1, 1996. Clearly, this does not make sense. In addition, New York State does not require the reporting of all requests for such testing, and therefore cannot fully evaluate whether we are adequately addressing the concerns of prosecutors, judges, victims, as well as those convicted of crimes. Also, more guidance can be provided on the practical aspects of post-conviction testing, such as the collection, storage and retention of crime scene evidence and related training, as well as the mechanics of the testing. If we study cases in which convictions have been vacated as a result of post-conviction analysis of DNA evidence, we may learn of additional ways to improve policies or practices relating to the operation of the criminal justice system. Notwithstanding that there are areas warranting some improvement, the New York experience demonstrates the wisdom of a statutory right to post-conviction testing. Such testing offers an invaluable tool to protect the integrity and ultimately the public's confidence in our criminal justice system. While I appreciate and respect the federalism concerns raised by my colleagues in State government, DNA testing is simply too important to allow some States to offer no remedy to those incarcerated who may be innocent of the crimes for which they have been convicted. That is why I support a Federal statute which requires States to adopt post-conviction testing procedures. While any such Federal statute should be flexible enough to allow States to craft provisions tailored to their particular criminal and appellate procedures, it nevertheless should require that all State provisions contain some fundamental principles. First, every State should be required to provide for post- conviction DNA testing in all cases in which such evidence would be probative of guilt or innocence. Second, before testing is done, defendants should be required to make a showing similar to New York's that the result of the DNA tests could provide favorable evidence related to the verdict; e.g. that if the results of the tests had been admitted at trial, there exists a reasonable probability that the verdict would have been more favorable to the defendant. Third, States should make such testing available at State expense to indigent defendants. Fourth, States should have reasonable time limits for defendants to request testing. Fifth, States should set forth standards to assure the preservation of potentially testable evidence. Finally, States should make sure that the above rights are made meaningful, which means the availability of counsel either through public defenders, appointed counsel programs, or funding for programs which represent indigent prisoners seeking post-conviction DNA testing. Although ideally every State already would have established a right to post-conviction DNA testing, unfortunately that is not the case. Where, as here, fundamental human rights are at issue, an unjust punishment has been imposed, and sufficient time has passed without comprehensive State action, it is certainly appropriate for the Congress to step in and establish minimum protections that all States must adopt. Our history is replete with instances of such necessary and appropriate Federal action. Congress did so in the 1960's when it passed civil rights laws abolishing discriminatory practices throughout the country, and it should do so again here. I can think of no cause more worthy of your attention and action. Thank you very much. The Chairman. Thank you, General. [The prepared statement of Mr. Spitzer follows:] Prepared Statement of Eliot Spitzer Chairman Hatch and members of the Senate Judiciary Committee, thank you for inviting me here today to address the issue of post-conviction DNA testing and how we should incorporate DNA testing more fully into the American criminal justice system. DNA testing represents an extraordinary enhancement in our ability to solve crimes. With DNA testing, we can determine whether a particular patch of blood, a hair, or a semen sample belongs to a specific individual. The potential significance of using DNA testing in the criminal justice system is enormous and fundamental. This evidence can exonerate individuals or it can inculpate them; an innocent person can be freed; a guilty perpetrator found. This is an extremely powerful took, one that can bring greater guarantees of fairness to our judicial system. As a result, it is the responsibility of all involved--legislators, prosecutors, defense counsel, judges--to work together to determine the appropriate and just use of this investigative device. DNA testing will never replace the fact finding of our juries, the legal determinations of our judges, or the constitutional protections afforded our citizens. Yet, our commitment to the fundamental principles of justice and liberty will be reflected by the decisions we make about how we use this new scientific tool. Like every American, I treasure the constitutional protections that are the underpinnings of our criminal justice system, and that are the envy of the world's citizenry. As a former prosecutor and now New York State's chief law enforcement officer, I have seen first hand the importance of these protections. The fundamental premise of American justice is the presumption of innocence. Our basic legal principles are intended to ensure, to the extent possible, that fact finding is performed fairly, efficiently and justly to exonerate the innocent, punish the guilty, and protect our citizens. Our federal and state constitutions are replete with rights we afford the accused--the right to notice of charges, the right to a speedy and public trial, the right to confront witnesses, the right to counsel, the right against self-incrimination. We as a society have made a profound commitment to avoid punishing the innocent. This is particularly important to those of use who support the death penalty in appropriate circumstances. We have determined that there are instances when the crimes are so egregious that society's ultimate punishment--the death penalty--may be appropriate. But the imposition of this punishment can be justified only if we make full use of all available tools to aid in the determination of guilt or innocence. This commitment must be reflected in the choices we make about post-conviction DNA testing. It is not something to be feared, but rather to be accepted and incorporated into our criminal justice procedures and practices. Some opponents of post-conviction DNA testing have argued that it cannot conclusively prove guilt or innocence in many cases, and therefore we should not burden ourselves with stringent requirements to provide such testing. That position ignores the remarkable power of DNA testing in those cases where identification is at issue--remember that this is the tool whichanswered the centuries-old question whether Thomas Jefferson and Sally Hemings produced offspring together. DNA testing can provide evidence which is probative of guilt or innocence in many cases, and therefore can determine that individuals who have been incarcerated for years--or even are awaiting the death penalty--may be innocent of the crimes for which they were convicted. The United States always has demonstrated its basic commitment to fairness to the accused, and therefore any marginal burdens are far outweighed by the ability to prevent the punishment of the innocent. New York State is a leader in this area, having passed legislation granting a statutory right to post-conviction DNA testing almost six years ago. Our experience demonstrates that post-conviction DNA testing can bolster the integrity of our judicial system without unduly burdening our criminal justice resources. As early as 1988, Governor Mario Cuomo established a Panel on Genetic Fingerprinting to review this new technology. Two years later, the state Division of Criminal Justice Services established the New York State DNA Advisory Committee; and the New York State DNA Scientific Review Board was formed in 1991. In 1994, the New York Court of Appeals, the highest court of our state, held that DNA evidence generally was accepted as reliable by the relevant scientific community and that results of DNA profiling tests could be admitted into evidence at a defendant's trial.\1\ --------------------------------------------------------------------------- \1\ People v. Wesley, 83 NY2d 417 (1994). --------------------------------------------------------------------------- Later that year, the New York Legislature amended New York Criminal Procedure Law Sec. 440.30 to authorize trial courts to order post- convention DNA testing in certain circumstances. This statute requires a court to grant a defendant's request for post-conviction forensic DNA testing where a court makes two determinations:first, that the specified evidence containing DNA was secured in connection with the trial resulting in the judgment; second, that if a DNA test had been conducted on such evidence and the results had been admitted in the trial resulting in the judgment, ``there exists a reasonable probability that the verdict would have been more favorable to the defendant.'' As a preliminary matter, New York's law enforcement community has been quite supportive of the immense value of DNA testing. For example, New York City Police Commissioner Howard Safir has written, with reference to post-conviction DNA testing, that he has ``seen the immense value of DNA evidence as both an inculpatory and exculpatory tool for law enforcement,'' and that the ``existence of a statutory requirement makes a significant difference in the pursuit of justice.'' \2\ --------------------------------------------------------------------------- \2\ Letter from Police Commissioner Howard Safir to Congressman Henry J. Hyde, January 14, 2000. --------------------------------------------------------------------------- Although New York does not have a complete accounting of every instance in which a defendant has requested DNA testing and the outcome, our preliminary indications demonstrate that a statutory right to post-conviction DNA testing, coupled with a appropriate standard, can produced results both just and practical. In New York, the existence of DNA evidence has led to post-conviction exonerations in at least seven cases.\3\ Thus, seven innocent individuals have been released thanks to this science and to our statutory guidelines. --------------------------------------------------------------------------- \3\ Id. --------------------------------------------------------------------------- I want to reassure this Committee and my state colleagues that the existence of a statutory right to post-conviction DNA testing does not mean that there will be an avalanche of testing at great cost to a state. With an appropriate standard, not all requests will be granted. In New York for example, a request for DNA testing can only be granted if a court determines that there exists a reasonable probability that had the results--presumably favorable to defendant--been admitted at trial the verdict would have been more favorable to the defendant. For example, in one rape case, a court ordered testing where the victim had testified that she had not had sex with anyone but the rapist on the night of the crime. Matter of Washpon, 164 Misc.2d 991 (Kings County 1995). On the other hand, courts have rejected requests for testing where they have determined that there was not a reasonable probability that the verdict would have been more favorable to the defendant even with the results of a DNA test. For example, in 1996, a court rejected a testing request in a rape case, where the defendant had conceded at trial that he had sex with the victimbut claimed that it had been consensual. People v. Kellar, 218 A.D.2d 406 (3d Dept 1996).\4\ The results of DNA testing would not have altered the verdict in any way. --------------------------------------------------------------------------- \4\ See also People v. DeOliveira, 223 A.D.2d 766 (3d Dep't 1996) (denial of application for testing in murder case where evidence that victim had sexual intercourse with another man prior to her death would not have proved that defendant was not the murderer); People v. Smith, 245 A.D.2d 79 (1st Dep't 1997) (fact that defendant was not the source of semen recovered from victim's body was consistent with the victim's testimony). --------------------------------------------------------------------------- Thus, our experience in New York demonstrates that a statutory right to post-conviction DNA testing can result in innocent individuals being exonerated and released. And our experience in New York demonstrates that a statutory right to post-conviction DNA testing can be workable. Although New York has been a leader in this area, and is one of only three states which have created a statutory right to post- conviction testing, our statute still could be improved. For example, CPL Sec. 440.30(1-a) applies only to defendants convicted before January 1, 1996. This time limitation appears to represent a legislative judgment that before that date, DNA evidence could not always have been produced by a defendant at trial even with due diligence and thus DNA results presumptively constitute newly discovered evidence. Although this may represent a rational judgment made by the legislature, the result is that for defendants convicted in New York after January 1, 1996, there is no statutory procedure authorizing post-conviction DNA testing. To the extent that those defendants may have had an opportunity to request such testing at trial but chose not to, there may be a lesser need for post-conviction testing. But some defendants may have been denied pretrial testing and should have an opportunity for post-conviction testing if their situation meets the statutory requirements. This problem could be solved either by establishing statutory standards for pretrial testing, or by extending the post-conviction DNA testing procedure set forth in CPL Sec. 440.30(1-a) to all defendants, regardless of when they were convicted. Other steps also can be taken to improve post-conviction DNA testing in New York. We do not require the reporting of all requests for such testing and therefore cannot fully evaluate whether we are adequately addressing the concerns of prosecutors, judges, victims as well as those convicted of crimes. Also, more guidance can be provided on the practical aspects of post-conviction DNA testing such as the collection, storage and retention of crime scene evidence and related training as well as the mechanics of the testing. If we study cases in which convictions have been vacated as a result of post-conviction analysis of DNA evidence, we may learn of additional ways to improve policies or practices relating to the operation of the criminal justice system. New York Governor George Pataki has proposed the creation of a DNA Review Subcommittee to address these issues, and I look forward to working with him in this endeavor. Notwithstanding that there are areas warranting some improvement, the New York experience demonstrates the wisdom of a statutory right to post-conviction DNA testing. Such testing offers an invaluable tool to protect the integrity of--and ultimately the public's confidence in-- our criminal justice system. While I appreciate and respect the federalism concerns raised by my colleagues in state government, DNA testing is too important to allow some states to offer no remedy to those incarcerated who may be innocent of the crimes for which they were convicted. That is why I support a federal statute which requires states to adopt post- conviction DNA testing procedures. While any such federal statute should be flexible enough to allow states to craft provisions tailored to their particular criminal and appellate procedures, it nevertheless should require that all state provisions contain some fundamental principles: first, every state should be required to provide for post-conviction DNA testing in all cases in which such evidence would be probative of guilt or innocence; second, before testing is done, defendants should be required to make a showing--similar to New York's--that the result of the DNA tests could provide favorable evidence related to the verdict, e.g., that if the results of the tests had been admitted at trial, there exists a ``reasonable probability that the verdict would have been more favorable to the defendant''; third, states should make such testing available at state expense to indigent defendants; fourth, states should have reasonable time limits for defendants to request testing; fifth, states should set forth standards to assure the preservation of potentially testable evidence; finally, states should make sure that the above rights are made meaningful, which means the availability of counsel, either through public defenders, appointed counsel programs, or funding for programs which represent indigent prisoners seeking post-conviction DNA testing. All of us know that, right now, there are individuals sitting in prisons throughout thecountry who are innocent of the crimes for which they were convicted. Each such case represents a fundamental failure of our criminal justice system, and as the elected representatives of the people, it is incumbent upon us to make every effort to ensure that these wrongs are corrected. Although ideally every state already would have established a right to post-conviction DNA testing, unfortunately that is not the case. Where, as here, fundamental human rights are at issue, an unjust punishment has been imposed, and sufficient time has passed without comprehensive state action, it is certainly appropriate for the Congress to step in and establish minimum protections that all states must adopt. Our history is replete with instances of such necessary and appropriate federal action. Congress did so in the 1960s when it passed civil rights laws abolishing discriminatory practices throughout the country, and it should do so again here. Our criminal justice system must strive toward ever greater degrees of exactitude. The public's confidence in our judicial system depends upon the fairness of the results it produces, and that fairness depends not just on the due process protections provided to defendants, but also on our willingness to correct any errors that occur despite those protections. Thus, if we fail to utilize the best scientific tools at our disposal--or if we refuse to make those tools available to those who may have been wrongly convicted--then we do a grave disservice to the public. On the other hand, if we choose to expand our use of this new technology, we will boost the public's confidence in our courts and their respect for the law. For these reasons, Congress should pass legislation ensuring that every state permits post-conviction DNA testing in appropriate circumstances. By doing so, Congress will ensure that innocent people will be released from prison. I can think of no cause more worthy of your attention and action. Thank you once again for inviting me to appear here today, and I would be pleased to answer any questions that you have. The Chairman. Ms. Camps, we will turn to you. STATEMENT OF ENID CAMPS Ms. Camps. Thank you. Mr. Chairman, Senator Hatch, Senator Leahy, members of the committee, and a special greeting to Senator Feinstein from our home State, my name is Enid Camps and I am a deputy attorney general for the State of California and an office coordinator on DNA issues. It is my honor to be here today on behalf of Attorney General Bill Lockyear. California law enforcement has long recognized the importance of DNA evidence in solving the most serious sex and violent crimes where the victims are disproportionately women and children. Clearly, post-conviction DNA testing is an important forensic tool as well. Today, attention has focused on the concept of post- conviction DNA testing and the need for it. But as you know, this is only part of the equation. We believe the national dialogue should now move on to include the specifics of cost, of implementation, and a practical assessment of how this can best be accomplished. Fair and reasonable access to post-conviction DNA testing must be established in a manner that does not compromise the integrity of our criminal justice system or undermine it financially. We thank you for the opportunity to further the national discussion on this complex subject. We are vitally interested in the DNA testing bills before you. We have just cause for concern. The impact of any new remedy for inmates falls disproportionately upon our State. We have the largest number of prisoners in the United States, and our State lab resources are overburdened particularly with our DNA backlog of 115,000 samples, second largest in the Nation. Attorney General Lockyear and his staff have reviewed Senator Leahy's bill, and look forward to studying Senator Hatch's bill. We appreciate that both bills seek to enhance the accuracy and confidence in the administration of our laws. This is a very important goal. Our concern about the Leahy bill, however, is because it has no meaningful filter for distinguishing baseless from potentially meritorious claims. It reads more like a discovery statute for a case that has never been to trial. Conspicuously absent is any plain language that DNA evidence would be dispositive of a material question of identity or demonstrate actual innocence. Another problem is a broad provision allowing a trial court to resentence even a guilty defendant in any manner based simply upon favorable results. Defense counsel typically argue that an inconclusive result is significant or favorable to the case. Under the Leahy bill, we see a rush therefore not to prove actual innocence, but to establish the inconclusive result which is arguably enough to open the door to a trial court's discretionary reevaluation of the defendant's entire cause. Other issues raised by the Leahy bill include what is the impact of the defendant's own failure to test the available DNA evidence, split prior to trial, or reveal the results of his own confirmatory testing by various techniques, and should a defendant be permitted to re-test with each different technology even if that test does not have a significantly better power of discrimination. Moreover, I cannot imagine having to explain to the many victims of serial crime in my cases that their assailants will have yet another day in court. In People v. Wallace, the defendant, known as the ``flex- tie'' rapist for the way he bound his victims, was convicted of 48 felony counts for a series of rape and kidnapping crimes committed against 11 victims from July 1988 through April 18, 1989. DNA RFLP testing performed in 1990 linked the defendant to some of these crimes which the appellate court were undeniably perpetrated by the same person. In addition, several victims identified the defendant. He was found in possession of the same brand of flex-ties as recovered from the victims, as well as duct tape and lubricant used in his crimes, and he confessed. With respect to the DNA RFLP evidence, the prosecution expert, a member of both the NRC I and II committees, found a match between the crime scene samples and defendant samples, even though the FBI lab which analyzed the evidence testified to an inconclusive result. The expert explained the FBI has a very broad inconclusive category, and the extra bands on the case autorads were technical artifacts which were extraneous to the genetic typing result. The court of appeals specifically found, even excluding the DNA analysis, the evidence of defendant's guilt was overwhelming. It is possible under the Leahy bill that this defendant could obtain post-conviction testing by new DNA techniques even though the DNA evidence would not undermine confidence in the verdict. In our opinion, that is too low a threshold. We also respectfully find the Leahy cost estimates to be vastly understated. The bill sets forth the cost of testing samples as about $2,000 to $5,000 per case. In reality, the total costs will be much greater. In addition to the cost of testing possibly thousands of samples each year in California, other costs to consider include leasing additional storage space for case evidence, even bulky items such cars, blankets and bath robes, and building freezer space to preserve the evidence. Though it is difficult to make cost projections, we conservatively estimate the price of building and maintaining freezer space to preserve evidence for 100,000 cases would be at least $7.2 million to build new facilities, with yearly energy costs of about $1.2 million to sustain the facilities, plus the cost of leasing the space. In our opinion, the huge resource allocation that Senator Leahy's bill would require at the post-conviction phase is the wrong way to go. A fair and reasonable DNA testing program will permit our emphasis where it should be, getting convictions right in the first place. For this reason, expanding the national databank program and funding to eliminate the DNA databank backlog is critical, and we appreciate the Hatch bill attention to these matters. Further delay in our criminal case work caused by a broad mandate to re-test evidence not only undermines our ability to complete pending case work, but it also imperils the rights of persons wrongly accused of crimes, like Mr. Raul Zamudio, who had his house burned down by community members who thought he was responsible for a series of sexual assaults and murders in their small town and who spent over 75 days in jail until DNA revealed his innocence and identified Mr. Marlow as the perpetrator. Finally, in our opinion, the broad access to post- conviction DNA testing provided in the Leahy bill does not best serve the rights of the wrongfully convicted persons the bill is designed to protect. If the Leahy bill passes,the truly innocent will find their claims further frustrated as they face courts clogged with meritless claims. In our opinion, the best approach would provide fair access to testing for the wrongfully convicted while respecting the finality of convictions and the basic tenets of our criminal justice system. Thank you. The Chairman. Thank you so much. [The prepared statement of Ms. Camps follows:] Prepared Statement of Enid A. Camps Mr. Chairman, Senator Hatch, Ranking Minority Member Leabh, and Members of the Committee, my name is Enid Camps, and I am a Deputy Attorney General for the State of California. It is my honor to be here today on behalf of Bill Lockyer, the Attorney General of our State. I am an office coordinator on DNA issues, and I am the assigned legal advisor to the California Department of Justice DNA Laboratory. I primarily handle DNA cases at the appellate level. My cases have helped define the development of law on DNA admissibility in our State. On behalf of the Attorney General's office I drafted, in conjunction with the State's DOJ DNA Lab, the ``DNA and Forensic Identification Data Base and Data Bank Act of 1998,'' a comprehensive chapter of laws defining and governing the operation of our State's DNA Data Bank program. DNA Data Banks are the most significant crime-fighting tool since fingerprints because they enable us to solve otherwise suspectless crime by comparing the DNA from biological evidence left at crime scenes with blood collected from an enumerated class of convicted felony six and violent offenders. California law enforcement has long-recognized the importance of DNA evidence in solving the most serious sex and violent crimes, where the victims are disproportionately women and children. In 1984, we first began data-banking blood samples from convicted sex offenders. Clearly, post-conviction DNA testing is an important forensic tool, as well. To date, attention has been focused on the concept of post- conviction DNA testing and the need for it. But as you know, this is only part of the equation. We believe the national dialogue now should move on to include the specifics of cost, of implementation, and a practical assessment of how this can best be accomplished. Fair and reasonable access to post-conviction DNA testing must be established in a manner that does not compromise the integrity of the criminal justice system, or undermine it financially. We thank you for the opportunity to further the national discussion on this complex matter. California law enforcement is vitally interested in the post-conviction DNA testing bills now before you. We have just cause for concern. The impact of any new post- conviction remedy (independent of new trial motions and habeas corpus) for inmates falls disproportionately upon our State. There are several reasons for this. First, with an adult inmate population of 164,523, we have the largest number of prisoners in the U.S. (See U.S. DOJ, Bureau of Justice Statistics, April 2000 Bulletin: ``Prison and Jail Inmates at Midyear 1999'' at www.ojp.usdoj.gov/bjs/.) Other than Texas, no state has even half of California's prison totals. Most states have far fewer. (Id.) Clearly, California's potential number of convicted offender DNA testing requests is second to none, when looking at statistics, alone. In addition, our State DNA laboratory already faces a significant, if not staggering workload, in part due to our long-standing collection of convicted offender Data Bank samples, the lack of attendant funding for sample analysis, and our commitment to fully using DNA evidence in criminal cases. California's current backlog for DNA Data Bank samples is about 115,000. The FBI's 1999 annual survey for DNA Data Banks lists only one state with a larger backlog. Our State's DNA Lab also has a current backlog of 150 pending cases, where our criminalists are analyzing evidence submitted by law enforcement agencies from nearly every California county. In addition, the State's backlog of older unsolved and suspectless case evidence is substantial. For example, there are about 18,000 rape kits waiting to be analyzed by DNA techniques and eventually compared with our convicted offender DNA DataBase. Unfortunately, we are understaffed to handle even our presentand forseeable workload. Though we have funding for many additional analysts, we have not yet been able to hire them. State salaries for DNA analysts have not proved competitive enough for us to hire the personnel we need. Accordingly, what may be merely difficult eleswhere impacts us on an entirely different scale in California. The Attorney General of the State of California, Bill Lockyer, and his staff have reviewed Senator Leahy's bill, and look forward to studying Senator Hatch's bill. We appreciate that both bills seek to enhance the accuracy and confidence in the administration of our laws. However, we believe the remedy proposed by the Leahy bill will erect such formidable practical, financial and legal obstacles that it will threaten the entire effort to use DNA effectively for criminal justice. Our difficulty with the Leahy bill is its open-ended mandate to essentially preserve and retest virtually all available case evidence. Rather than relying upon well-developed legal principles for assessing new evidence, the Leahy bill provides no meaningful filter for distinguishing baseless from potentially meritorious claims. Senator Leahy's bill with its low threshold requirement that the DNA testing ``may produce'' relevant evidence reads more like a discovery statute for a case that has never been to trial, than a special post-conviction remedy for a fully litigated criminal cause. (See generally, Fed. R. Evid. 401 [definition of ``relevant evidence'' does not require that it relate to a disputed fact]; see also State of New Jersey v. Halsey (N.J. Super.2000) 748 A.2d 634 [``However, every defendant cannot forever seek to have post-judgment tests conducted in the hopes that something beneficial may result, even assuming that the evidence to be tested remains available.''].) Most conspicuously absent from Senator Leahy's bill is any plain language requiring an evidentiary nexus between actual innocence and the DNA test requested. There is no requirement the DNA evidence would be dispositive of a material question of identity, which in the context of the entire case and facts, would generate a reasonable doubt of guilt or culpability that did not otherwise exist. (Cf. U.S. v. Bagley (1985) 473 U.S. 667, 682; People v. Savory (III.App. 1999) 722 N.E.2d 220 [appeal pending]; see also draft Model Statute of NIJ's National Commission on the Future of DNA Evidence). Without such meaningful parameters, the bill invites large-scale and costly fishing expeditions for evidence that our state criminal justice system cannot, and should not, be forced to assume. Indeed, rather than requiring a trial court to evaluate a request in its developed factual context, the bill rests on the opposite, but erroneous premise that: ``Uniquely, DNA evidence showing innocence, produced decades after a conviction provides a more reliable basis for establishing a correct verdict than any evidence proffered at the original trial.'' (Leahy bill, Finding 4; emphasis added.) Obviously, this ignores the reliability of such evidence as fingerprints, and properly taken confessions. It also ignores case-specific matters such as whether the issue in a rape case is consent rather than identity, and whether there are multiple assailants, which undercuts the materiality of any DNA testing result. (See e.g. People v. Gholston (Ill.App. 1998) 697 N.E.2d 375). A less conspicuous, but equally problematic component of the Leahy bill is a broad provision that allows a trial court to resentence a defendant in any manner it sees fit, based simply upon ``favorable'' results. While this might seem noncontroversial, those of us who have litigated DNA cases at trial or on appeal know, in reality, what can and does happen in these cases. Defense experts often testify that there has been an error in the DNA test result implicating the defendant. Similarly, defense counsel typically argue that an ``inconclusive'' result is significant or ``favorable'' to the case. Under the Leahy bill, we foresee a rush, therefore, not to prove actual innocence, but to establish the ``inconclusive result'' which is arguably enough to open the door to a trial court's discretionary reevaluation of the defendant's entire cause. This will lead to extensive hearings on the meaning of test results, but without regard to the evidentiary impact, if any, of the test results on the case as a whole. In addition, the Leahy bill is ambiguous in several respects. There is certain to be litigation over whether the DNA testing request is based upon a ``new'' technique, or simply an old technique that has been improved in the regular course of scientific development. Defense attorneys routinely claim that changes in protocol, changes in amounts of chemicals added to processes, changes to enzymes, changes to make a procedure more efficient, whether a system adds markers, or tests them in combination or individually, or whether a system utilizes different visualization methodologies all constitute changes in the fundamental technology sufficient to establish it as a new DNA technique. We disagree that basic improvements to existing methodologies constitute new techniques, but this has been a very time consuming, difficult, and sometimesfruitless exercise to prove to judges who often have limited scientific background. Other issues which the Leahy bill raises include: (1) Must the defense prove a sufficient chain of custody before the evidence is tested? (2) What will happen if the evidence to be tested will consume the sample; does law enforcement have to relinquish its right to the evidence? (3) What happens if evidence which should have been preserved, is not properly preserved or handled by the law enforcement? (4) Which lab should test the sample and whether the testing must be observed by both defense and prosecution experts when there is limited sample? (5) What is the impact, if any, of the defendant's own failure to test the available DNA evidence split prior to trial, or reveal the results of his own ``confirmatory'' testing by various techniques? (6) Should a defendant be permitted to retest with each different technology even if that test does not have a significantly better power of discrimination? We also note, because the Leahy bill has no timeliness requirements, and no stated prohibition on multiple DNA testing requests, it would permit a defendant to wait to the eve of execution, and then sequentially apply for DNA post-conviction tests, i.e., first polymarker, then STRs, etc., even though all are available now. Moreover, I cannot imagine having to explain to the many victims of serial crime in my cases that their assailants will have yet another day in court, and that a law passed by our Congress is so open-ended it arguably allows a court the discretion to fashion just about any remedy it sees fit, as long as there may be an ``inconclusive'' DNA result. People v. Barney (1992) 8 Cal.App.4th 798, was a court trial and DNA RFLP case. which involved the 1988 kidnapping, robbery, and attempted rape of a woman by a defendant who had seven prior convictions, many related to sexual assault. The trial court specifically found: ``in the final analysis, the same verdicts would have been reached without any DNA evidence.'' Indeed, the non-DNA evidence against Barney was overwhelming. Among other things, Barney left his wallet containing his California identification and social security cards in the victim's automobile, and the victim gave the police an accurate description of Barney and identified him. Cellmark Diagnostics which analyzed the semen stains on the victim's pantyhose, estimated that the probability of a random match between the samples was one in 7.8 million. On appeal, the Court ruled the DNA RFLP evidence inadmissible, but harmless error. In 1999, the California Supreme Court in People v. Soto (1999) 21 Cal.4th 512 ruled generally accepted and admissible the same product rule calculations used in Barney, but found to be a source of error in that case. In People v. Britton (June 27, 1994) AO58925 [nonpub.opn.], the defendant, known as ``The Creeper'' for his ``trademark'' of wearing socks but no shoes, was charged with 30 felony counts for a series of rape and sodomy offenses involving six victims for crimes committed from December 15, 1990, to April 4, 1991. Though the defendant was convicted of several of the charged offenses where there was DNA RFLP evidence, the jury specifically declined to convict him of the counts against the victim where DNA was essentially the only evidence, despite the random match probability estimate of 1 in 48 million. The Court of Appeal found: ``We must resist respondent's energetic effort to induce us to question the merits of the opinion in Barney [finding DNA RFLP evidence inadmissible]. The DNA evidence is so obviously marginal to the convictions returned in this case that any error in receiving it would clearly be harmless. For us to reach out to decide such a peripheral issue would therefore violate the salutary principles constraining judicial review.'' Though the defendant also maintained that the remaining counts which did not involve DNA evidence, were nonetheless tainted by its ``prejudicial spillover effect,'' the Court of Appeal disagreed, stating it was ``convinced there was no prejudice,'' finding: ``The evidence on the Jessica S. counts shows that appellant was found by the police in the victim's house minutes after the attack; that appellant had his pants down around his thighs, and claimed to have urinated in a bathroom that in fact had no functioning toilet; that appellant claimed he had entered the home to check on another intruder, who was not seen by the victim's mother or the police; and that appellant's car was left some distance from the house with the keys in the ignition, as if to allow a quick getaway.'' In People v. Wallace (1993) 14 Cal.App.4th 651, 661 the defendant, known as the ``flex-tie'' rapist for the way in which he bound his victims, was convicted of 48 felony counts with 76 enhancements for a series of rape and kidnapping crimes committed against 11 victims from July 1988 through April 1989. DNA RFLP testing performed in 1990 lined the defendant to some of these crimes, which the appellate court found were undeniably perpetrated by the same person given their distinctive m.o. In addition, among other evidence, several victims unequivocally identified the defendant; he wasfound in possession of the same brand of flex-ties as recovered from the victims, as well as duct tape and lubricant used in his crimes; and he confessed. With respect to the DNA RFLP evidence, the well-credentialed prosecution expert--a member of both the NRC I and II committees \1\--found a match between the crime scene samples and defendant's sample, even though the FBI lab which analyzed the evidence testified to an ``inconclusive'' result. The prosecution expert explained that the FBI has a very broad ``inconclusive'' category, and the extra bands on the case autorads were ``technical artifacts'' which were ``extraneous to the genetic typing result.'' The prosecution expert then estimated the random probability of match between the defendant's samples and the crime scene samples as 1 in 26 million, but the jury heard only the artificially low figure of 1 in one million Caucasians, because of the expert's ``personal philosophy'' about statistical evidence. The district attorney argued the DNA evidence played only a limited role in the case; and the Court of Appeal specifically found ``[e]ven excluding the DNA analysis,'' the evidence of defendant's guilt was ``overwhelming.'' (Id.) --------------------------------------------------------------------------- \1\ National Research Council, DNA Technology in Forensic Science (1992) (``NRC I Report''); National Research Council, The Evaluation of Forensic DNA Evidence (1966) (``NRC II Report''). --------------------------------------------------------------------------- In People v. Quintanilla (Aug. 11, 1994) AO54959 [nonpub.opn.], the defendant who had a substantial criminal record was convicted of 15 felonies with enhancements in connection with the abduction and sexual assault of the victim. DNA PCR evidence was introduced to support the verdicts. The Court would not reach the merits of the admissibility of DNA PCR evidence because it found ``any error in connection with this evidence was harmless.'' The Court stated: ``The key evidence of guilt, aside from the victims' very positive in-court identifications, was the fingerprint on the car. The odds of that happening at random were at least as remote as any odds that have been claimed for RFLP fingerprinting. With an actual fingerprint no `DNA fingerprint' was needed, much less the more generalized results of DQ-alpha genotyping. As noted in the parties' briefs, since PCR testing `merely narrowed the group from which other suspects might be drawn rather than definitively identif[ied] appellant as [the victim's] assailant,' `the DNA evidence was more important in the investigatory stages of the case than it was at trial.' '' In addition to the fingerprint, the defendant was found in possession of the victim's jewelry. DNA evidence also excluded a different suspect in the case. In each case it is likely under Senator Leahy's bill that the defendant persuasively could argue he can obtain post-conviction testing by ``new'' DNA techniques. Each points out why it is imperative for a trial court decision to rest not merely on the availability of testable evidence, or a new DNA technique, but upon the facts of each case, which can show why further DNA testing would not undermine confidence in the case's outcome. In addition, you should know the laboratories that perform DNA tests in California routinely make DNA evidence available for defense testing. The results of any such DNA testing, however, are not divulged to the prosecution. Oddly, such results do not have to be factored into the calculus of whether the defendant can obtain post-conviction DNA testing. We also respectfully find the Leahy bill cost estimates to be vastly understated. The Leahy bill sets forth that the cost of testing samples is about $2,000-$5,000 per case. In reality, the cost of the bill will be much greater, and essentially compels the creation of a new infrastructure to meet its requirements. In addition to the cost estimate for testing an unknown number of samples, possibly reaching into the thousands each year in California, alone, some additional costs or matters which must be considered including the following: (1) State DNA Lab personnel to provide a first or second opinion in evaluating the quality of evidence and whether evidence has been properly handled. (2) The cost of taking DNA reference samples from the defendant and others associated with the case. (3) State DNA Lab personnel necessary to monitor and/or confirm testing if done by another laboratory, particularly if the testing points to an exclusion of the defendant or is inconclusive due to degradation of sample, etc. (4) The impact on State Lab program as a whole of court orders to produce results within a certain time frame. (5) State personnel time to testify in the many hearings involving post-conviction DNA testing, particularly hearings regarding the meaning of tests result, which also require paying defense attorneys and expert witnesses; DNA defense experts typicallymay be paid from $175 to $250 an hour.\2\ --------------------------------------------------------------------------- \2\ Supreme Court noted that one expert made about $100,000 testifying as a defense expert in 1990-1991, even though he had not received a research grant in about eight years. (See also Fiocoma, D. Unravelling the DNA Controversy: People v. Wesley, A Step in the Right Direction (1995) Journal of Law and Policy, fn. 105 [making similar observations, and noting ``Even other scientists are amazed to discover the amount of money that can be made from testifying for the defense at Frye hearings, despite the fact that it often means altering the truth about DNA reliability.''].) --------------------------------------------------------------------------- (6) Investigator, district attorney and attorney general resource time to litigate cases. (7) Trial and appellate court resources. (8) Leasing additional storage space for case evidence that cannot be destroyed (including bulky items such as cars, blankets, and bathrobes) and building freezer space to preserve evidence. In this regard, we note that the Leahy bill's directive to preserve ``all biological evidence secured in connection with a criminal case'' throughout a person's entire period of incarceration is very broadly stated and may ignore the privacy rights of innocent persons. Victims, family members, witnesses, innocent suspects, and boyfriends may feel quite differently about whether their samples should be stored indefinitely by law enforcement pursuant to the Leahy bill. In addition, though it is difficult to make cost projections, we estimate the price tag of building and maintaining freezer space to ``preserve'' evidence that is presently retained would be substantial. For 100,000 cases we conservatively estimate a cost of $7.2 million to build new facilities, with yearly energy costs of about $1.2 million to sustain the facilities plus th cost of leasing space. In our opinion, the huge resource allocation that the Leahy bill would require at the post-conviction phase is the wrong way to go. A fair and reasonable post-conviction DNA testing program will permit our emphasis where it should be: getting convictions right in the first place by using DNA evidence to properly identify suspects; so innocent suspects are spared searching investigations ... or even convictions, and suspects who are investigated are burdened on a greater factual basis. For this reason, expanding the national Data Bank program, and funding to eliminate the DNA Data Bank backlog is critical and we appreciate the Hatch Bill's attention to these matters. Finally, we emphasize that an elastic standard for post-conviction DNA testing ultimately does not serve the interests of justice for other reasons, as well. Any further delay in our pending criminal casework caused by large- scale, court-ordered post-conviction DNA testing, ultimately could mean the difference between cases that can be prosecuted and ones that cannot--as investigative leads must be pursued, and witnesses located while memories are still fresh. Solving crime, of course, is important not only to law enforcement, but to victims and their families, who need closure for these cases. Likewise, delays in our pending case work and investigations imperil the right of persons wrongly accused of crime, like Mr. Raul Zamudio, who had his house burned down by community members who thought he was responsible for a series of sexual assaults and murders in their small town, and who spent over 75 days in jail until DNA evidence revealed his innocence and identified Gustavo Marlow, Jr., as the perpetrator. (See e.g., People v. Marlow (April 25, 1995) H0110375 [previously published at 34 Cal.App.4th 460].) Similarly, because a substantial increase in workload due to post- conviction DNA testing would impede our ability to solve old cases through Databank matching, it also delays the exoneration of innocent individuals through the data bank procedure. This is because the DNA Data Bank not only helps law enforcement identify and prosecute the persons responsible for otherwise suspectless crimes, it also helps identify wrongly convicted individuals such as Kevin Green, imprisoned nearly 17 years--until the DNA data bank evidence helped expose the truth. (See California A.B. 110 [adding Section 17156 to Rev.& Tax Code, relating to miscarriage of justice, and ``appropriating $620,000 from the General Fund to the Department of Justice for payment to Kevin Lee Green'' related to his unlawful incarceration for crimes committed by Gerald Parker].) Moreover, it is our opinion the broad access to post-conviction DNA testing provided for in the Leahy bill does not best serve the rights of the wrongly convicted persons the bill ostensibly is designed to protect. If the Leahy bill passes, the truly innocent will find their claims further frustrated and delayed as they face courts clogged with meritless claims. Curiously, the Leahy bill states ``the number of cases in which post-conviction DNA testing is appropriate is relatively small and will decrease as pretrial testing becomes more common and accessible.'' (See Leahy bill, Finding 11.) If this is the case why isn't the bill reasonably tailored to permit testing only in those small number of cases where identity is at issue, and actual innocence can be ascertained by specific DNA tests. Why not put reasonable parameters on access to post-conviction DNA testing, so it is both effective and affordable. In our opinion, the best approach would provide fair access to testing for the wrongly convicted, while respecting the finality of convictions, and the basic tenets of our criminal justice system. Thank you. The Chairman. Judge Baird, we will turn to you. STATEMENT OF CHARLES F. BAIRD Mr. Baird. Good morning, Chairman Hatch and Senator Leahy and members of the committee. My name is Charlie Baird. I presently serve as co-chair of the National Committee to Prevent Wrongful Executions. Because the committee has not yet crafted its recommendations, I speak not for the committee as a whole, but as a member of the committee and as one who has years of direct experience with the Texas criminal justice system. I am a former judge on the Texas Court of Criminal Appeals, the highest criminal court in Texas. I served on that court for 8 years. In that time, I participated in more than 400 capital punishment appeals, and I reviewed numerous writs of habeas corpus from capital defendants and literally thousands of petitions and writs from non-capital cases. In that judicial capacity, I authored many opinions which affirmed the conviction and sentence of death. I voted for many more opinions which did the same thing, and many of those defendants have, in fact, been executed. Prior to my service on the court, I practiced law in Houston, Texas. In total, I have more than 20 years of direct experience of working in the Texas criminal justice system. The criminal justice system can be improved markedly with the passage of the Leahy-Smith-Collins bill. Please permit me to tell you why I feel confident in making that statement. First, the legislation makes DNA testing available in cases where it is not presently available. This is very important because DNA can often determine the ultimate question in any criminal trial, the guilt or innocence of the accused. In Texas and around the country, several inmates on death row or in prison have been exonerated through the marvel of DNA testing. Those innocent individuals were destined to a life of confinement or to be executed for crimes they did not commit. They now have their freedom. That is the gift of DNA. However, as we know in Texas, oftentimes conclusive DNA testing which exonerates the defendant is not enough. In this instance, I speak of an inmate named Roy Criner. Mr. Criner was charged with the rape and murder of a 16-year-old girl. The State's theory of prosecution was that Mr. Criner was the sole perpetrator of this offense. Crucial to the State's theory of prosecution was evidence that the semen found in the victim was consistent with Mr. Criner's blood type. The jury convicted Mr. Criner and assessed his punishment at 99 years in prison. When Mr. Criner's case came before the Court of Criminal Appeals, I voted to affirm that conviction and sentence. It is important to note that Mr. Criner's trial occurred in 1990, before DNA testing was considered scientifically sound and accepted in most courts. As technology improved and DNA became more accepted, Mr. Criner sought and eventually obtained permission to have the semen genetically tested. Mr. Criner's family paid for that testing. That test exonerated Mr. Criner. When the district attorney reviewed the results, he was skeptical and insisted on his own test. That test was conducted by the Texas Department of Public Safety. That test, the second test, also exonerated Mr. Criner. The trial court then conducted a hearing where both test results were admitted into evidence. Following that hearing, the trial recommended that the Texas Court of Criminal Appeals, my former court, order a new trial for Mr. Criner. However, six members of the Court of Criminal Appeals voted to deny Mr. Criner a new trial. Their reasoning was twisted, contorted and confused. Although I and two other judges dissented, we could not carry the day. So today, as I appear before you, Senators, in Texas we have a man incarcerated for the remainder of his life who has two DNA evidence tests which conclusively establish his innocence. While Mr. Criner has no remedy in Texas, the Leahy-Smith- Collins bill would encourage States to provide a remedy. Moreover, the legislation would provide a Federal remedy for State inmates if their particular States did not offer a remedy. The result is that under the Leahy-Smith-Collins legislation, all inmates who are able to prove their innocence through DNA testing can gain their freedom. Mr. Criner is not the only Texas inmate who has been exonerated. Kevin Byrd was convicted of rape in 1985. He was exonerated in 1997, when DNA evidence conclusively established his innocence. Even though Mr. Byrd spent 12 years in prison, because of DNA testing he is now a free man. A.B. Butler has also gained his freedom through DNA testing. He was convicted of rape in 1983 and served 17 years in prison for a crime he did not commit. While DNA cannot give Mr. Butler back those 17 years, DNA did secure his freedom. The criminal justice system should embrace DNA testing because it has the potential of eliminating human error and conclusively establishing the guilt or innocence of the accused. Where DNA is involved, the legislation must have two vital components. First, it must permit access to the evidence. For this evidence to be accessible, it must be preserved, and the defendant must have the ability to subject that evidence to testing. In Texas, there is no right to post-trial DNA testing. It is left totally to the discretion of the trial judges. In Texas, there is duty to preserve the evidence for later DNA testing. Indeed, this evidence is routinely destroyed. In fact, after Kevin Byrd was exonerated by DNA testing, the State secured orders for the destruction of 50 rape kits in 50 separate cases where the defendants are still incarcerated. Because this is permissible in Texas, those defendants will never have an opportunity to prove their innocence. Second, courts must be open to receive this evidence. Too often, procedural bars prevent this evidence from being considered. The doors of our courts must always be open to consider cases where a person deprived of his liberty can prove his innocence. While we all recognize that DNA testing can transform the human frailties of the criminal justice system to the certainty of science, we must also recognize that DNA is not present in every case. And in these cases, the criminal justice system must operate as designed, to reach a correct result through the adversary system of two attorneys competing mightily before an impartial judge and jury. However, far too often the adversary system breaks down, and because the defense attorney is not experienced, not competent, or in some cases not even awake, the verdicts from trials where these types of defense representation occurs are not reliable and work only to undermine and destroy confidence in the judicial system. This legislation is especially important because it would establish national standards for the representation of capital defendants. Establishing this national standard would guarantee that those who are charged with capital crimes will be effectively represented before society extracts the ultimate punishment. This legislation is necessary because many States do not have statewide guidelines for the qualifications of counsel, and some States like Texas leave it totally up to the trial judges to determine counsels' level of competence. Therefore, in Texas, where there are 700 separate judges, each judge operates under his or her own definition of competent counsel. This legislation would ensure that every indigent defendant, regardless of the locality of his alleged offense, would received qualified, experienced and competent counsel. This legislation fulfills the guarantees of the sixth amendment to effective assistance of counsel to all indigents accused of a capital crime. The reforms I urge you to adopt will benefit victims as well as criminal defendants. No one, and least of all victims, wants the agony of retrials because of incompetent lawyers who make mistakes, who fail to present all the evidence, and who otherwise fail to make the system truly adversarial. No one wants a system that convicts the wrong person and lets the real perpetrator walk the streets, free to victimize again. Thank you very much. The Chairman. Thank you, Mr. Baird. Mr. Marquis. STATEMENT OF JOSHUA K. MARQUIS Mr. Marquis. Thank you, Chairman Hatch, Senator Leahy, and honorable members of the committee. I appreciate the opportunity to come here and speak to you today. My name is Joshua Marquis and I am the elected District Attorney in Clatsop County. That is where the Columbia River meets the Pacific at the end of the Lewis and Clark Trail. Like General Edmonson, I am a Democrat. I remember meeting Senator Leahy when I was a delegate at the Democratic Convention in 1996, and he shared some of his experiences as a prosecutor in Vermont. Senator Leahy. You remember. Mr. Marquis. I remember. I want to commend Senator Leahy for bringing this important issue up. I am not scientific expert on DNA, and I bring a different perspective than many of your other witnesses. I am a working prosecutor who has argued successfully for the death penalty in one case, chose not to seek it in many others, and I have even been a defense attorney, in which I have successfully kept my clients off death row. I am the person who has to make the decision whether to seek the death penalty in my office, and I am the person who has to make the decision not to. So this is not an academic or esoteric discussion for me. And from that perspective, I commend you for bringing this issue to the front. But I believe that language is absolutely essential when we are talking about something this important, and that is the reason I strongly urge you to consider Senator Hatch's bill and the language of his bill. Senator Smith recently said back in our home State that he wants to make a good system nearly perfect, and I think that is an appropriate and laudable statement. But I think the words are very important, ``near perfect,'' because no human endeavor is without any possibility of error. And if we are going to demand one hundred-percent perfection, as some death penalty opponents have suggested, we literally are going to have to abolish not only the death penalty, but all long terms of imprisonment. Any of you who have arrived or will depart from this hearing by commercial airliner are probably taking a greater risk of death than we are of wrongfully executing an innocent person. Senator Biden. We can't do anything about that. Mr. Marquis. We can't, and I know Senator Wyden and Congressmen DeFazio have some ideas on the Transportation Committee. There are some proponents of 2073 who barely hide their agenda to basically abolish the death penalty, ignoring the almost 70 percent consistently of Americans who support theconcept of capital punishment. These abolitionists, again, demand 100-percent perfection. A study recently orchestrated by an antideath penalty group was released yesterday by a PR firm here in Washington, DC, which makes the counterintuitive claim that the high degree of reversals means that the system is flawed so much that it is unreliable. That is a completely counterintuitive argument which would also argue that you shouldn't get into a car that has an air bag or a seat belt because obviously something with those kinds of devices in it is much too dangerous to ride around in. There is a concerted campaign in this country to shift the debate about capital punishment from a legitimate issue about the morality of the death penalty to framing the question as I am sure Mr. Scheck will very ably do: well, OK, maybe you are for the death penalty, but surely you are not for executing innocent people. That is sort of like putting together a commission, frankly, to prevent kicking small children across the floor with steel-toed boots. No one is for that. Let me speak specifically to the DNA testing bills. I am a member of the National DA's Association Board of Directors. I am not speaking for that Board. We haven't had the chance to meet since these proposals have come in, but I know the prosecutors across this country support reasonable legislation that ensures the integrity of the process. The concept behind Senator Leahy's bill has value, but it is drafted so broadly and has so few standards that it would create a useless tidal wave of litigation from bored and guilty criminals who simply demand DNA testing whenever there is a possibility it will reveal relevant evidence. And I would cite the committee to the standard that is used in the Supreme Court decision in Herrera v. Collins, where they talked about a truly persuasive demonstration of actual innocence. I mean, there is very much a difference there. I think Senator Hatch's proposals would fix that problem. Without that fix, let me give you a very concrete example. I am about to retry for the fourth time a man who murdered two people in central Oregon. The defendant has never claimed actual innocence. That State of Oregon has paid probably close to $2 million to defend this man. He was represented by competent indigent lawyers. Without the Hatch bill definitions, this man could come back into court a fifth time and claim that his nine previous appellate and trial lawyers didn't know what they were talking about, and that because we have a bunch of items like a TV set that has blood on it that we have been keeping in a storage locker for 13 years since these people were murdered, he could say, ah-hah, I heard that there is another inmate in prison and he actually did it and he told me he left his blood at the scene, and I demand that you get out that TV set and you test it for DNA. Oh, you haven't preserved that test? Some clever defense attorney will get up and say that prosecutor has deliberately destroyed that information. And that person will get, at minimum, a new trial, or might get free, and I am going to have to tell those victims to come back for a fifth time for trial. And I don't know if I can do that. DNA can be a marvelous science. As early as 1983, the English used it in Narborough, England, where a 15-year-old girl named Lynda Mann was murdered. The constables went out and decided to DNA-test every single male adult in the community. And after 4 years, and unfortunately another murder, they caught a man, appropriately named Colin Pitchfork, in 1987. But it is important to remember that even in those cases when DNA is overwhelming, such as the O.J. Simpson case, skillful defense attorneys can convince juries to simply disregard the scientific evidence. In some cases, like stranger-to-stranger cases that have been described by some of the other witnesses, DNA evidence can be dispositive, but there are many, many murders in which it is not. In a classic domestic violence murder, it won't really answer any questions. I have handled about two dozen homicide cases. In only one was DNA an issue, and it was helpful, but it was not dispositive. The idea of allowing modern technology to convict the guilty and free the innocent is already under widespread use. Although existing DNA labs already have a serious backlog, the Justice Department has estimated that there are about 350,000 DNA samples awaiting testing. The DNA resources in our Nation are already taxed beyond their abilities. The actually innocent may find themselves at the very end of a long list if we make the list too large. Senator Hatch's allocates money to strengthen those resources, and I know that Senator Feingold and I think Senator DeWine have sponsored a bill, the CODIS bill, to help fund DNA testing, and I applaud that. One of the witnesses you will hear from in a few minutes is Barry Scheck, a very skilled defense attorney. In an op ed piece last week, he painted a picture of a justice system where eyewitnesses can't be trusted, the cops lie, prosecutors fabricate, and defense attorneys are incompetent. I don't believe we live in that country. Mr. Scheck has correctly pointed out that DNA can not only exonerate, but can also convict. And I look forward to the day when people like him bring their considerable legal talents to bear to aid some small-town, underfunded prosecutor who needs to use DNA to convict a killer. Let's remember who we are trying to protect--the innocent-- and let's use that word carefully. We mean people that didn't do it. And let's never forget the hundreds of thousands of murder victims that we have to answer to, all of us in the criminal justice system. Thank you very much, Senator. [The prepared statement of Mr. Marquis follows:] Prepared Statement of Joshua K. Marquis I am honored to be here today and thank Chairman Hatch, Senator Leahy, Senator Smith, and the honorable members of this Committee for giving me the chance to testify about DNA testing legislation. I'm the elected District Attorney in Clatsop County, on Oregon's North Coast. I have handled more than two dozen homicide cases and have four aggravated murder cases pending, two of which potentially involve the death penalty. Before being appointed and then elected District Attorney, I was the chief deputy to other Oregon counties. I have also served as the speechwriter to former California Attorney General John Van de Kamp, and I worked as a reporter and columnist for the Los Angeles Daily Journal newspaper. I serve as co-chair of the Media Committee on the Board of the National District Attorneys Association. I'm also Vice-President of the Oregon District Attorneys Association. dna, useful tool or magic bullet? DNA can be a marvelous forensic too, but it is not a magic bullet. In 1983, in the English village of Narborough, 15-year-old Lynda Mann was murdered. Two years later another young girl in the village was murdered. DNA technology was in its infancy, but local constables got the idea to use DNA technology. They systematically collected blood samples from every adult male in the town, and methodically and eventually caught the rapist, appropriately named Colin Pitchfork, in 1987.\1\ But it is important to remember that even when DNA evidence is overwhelming, as it was in, for example, the OJ Simpson case, a skillful defense lawyer can convince a jury to ignore the scientific evidence. The idea of allowing modern technology to convict the guilty and free the innocent is now in widespread use, and existing DNA labs are seriously backlogged. The Justice Department has estimated there are 350,000 DNA samples currently awaiting testing.\2\ The concept behind Senator Leahy's bill has value, but standards are necessary to make it workable. Without standards it could open the floodgates to a deluge from guilty and/or simply bored criminals who will demand DNA testing whenever there is even a possibility it will reveal relevant evidence. Mr. Scheck's Innocence Project requires that DNA testing be positive of actual guilt or actual innocence, a far cry from the Leahy bill. In some cases, like a stranger-to stranger rape, DNA can be dispositive. But in a domestic murder the presence of DNA evidence answers no significant questions. Senator Hatch's proposals recognize that difference. Let me give you a concrete example, I tried, for the second and third time, and now I or perhaps another prosecutor will need to try for the fourth time, the penalty phase of a vicious murder of two Oregon residents who were slaughtered in their home in 1987. The defendant has never claimed actual innocence. The state of Oregon has shelled out more than million dollars for his defense. The defendant has been sentenced to death by three separate juries. Without the definition provided in the Hatch bill, this defendant could come into court a fifth time, claiming his nine previous trial and appellate lawyers forgot to raise a DNA issue. He could claim that a spot of blood on a TV set that has been kept in a locked mini-storage locker might show relevant evidence that someone else's blood was at the crime scene. DNA technology is improving almost monthly. However, since no one has ever claimed the TV set has relevant biological evidence, the DNA sample may well be untestable or seriously contaminated. A defense attorney might then get up in court and claim that the prosecutor has allowed critical evidence that could clear the client to be destroyed. This killer would get yet another trial, forcing the victims to come back again. Or, worse yet, he might even get out of prison. ``innocent'' or just overturned? As a career prosecutor my worst nightmare is that I convict an innocent person of a crime that sends them to prison, to say nothing of death row. In this country we have an incredibly elaborate appellate system that recognizes that police, prosecutors, judges andjuries are not infallible. More than 400,000 homicides cases have been charged since the Supreme Court, in 1976, allowed states to re-implement capital punishment. Somewhere between five and ten thousand of those cases, depending on the source and the way they are counted, have garnered the death penalty. In that same time, for those same numbers, death penalty opponents have cited 87 cases in which evidence later surfaced that showed the condemned to be actually innocent or raised sufficient doubts to remove them from death row. Only eight of these cases have involved DNA.\3\ And we must be careful with our use of the language. The media have interchangeably used the word ``exonerated'', ``freed'' or ``cleared'' to describe cases where the actual guilt of the defendant is still very much an open question. Make no mistake about it: It is far from clear that we are really talking about ``actually innocent.'' While there are many people, like my own state's Senator Gordon Smith, whose goal is to make our system more efficient, there are also those whose real intent is simply to abolish the death penalty. On National Public Radio last week, Peter Neufeld admitted that he will never be satisfied with any system of capital punishment. The American people have consistently supported the death penalty as a concept. A recent Newsweek poll showed more than 70 percent support for capital punishment. In my own state a recent poll showed more than two-thirds of Oregonians would vote against the so-called ``Life for Life'' initiative which would abolish the death penalty that our state's voters popularly abolished in 1964, and re-instated--more than once-- twenty years later. Honorable and principled people like my state's former Senator and Governor Mark Hatfield, have sincere moral objections to the death penalty. But some opponents have recognized they have lost that battle with the public and are attempting now to re-shape the discussion in the form of a new urban myth: that our justice system is growing increasingly reckless in its zeal to execute and, worse yet, that significant numbers of innocents are ending up on death row. This is a myth in search of a crisis that doesn't exist. why the system works Another study, launched by anti-death penalty advocates here in Washington on Saturday, June 10th, made the bizarre claim that because America's state and federal courts overturn such a high proportion of capital cases, that must mean the system ``is so fraught with error as to make it unreliable.'' Interestingly, the states with the lowest reversal rates in this somewhat recycled study are Virginia and Texas, states that abolitionists constantly attack for their capital punishment systems. The state with supposedly one of the ``worst'' reputations--Illinois--in fact overturns 66 percent of cases, according to Professor Leiban's study. The study inadvertently or intentionally misses the obvious point. When we apply to death sentences what Justice Powell called ``super due process,'' as well we should, we would expect to find the extreme scrutiny that results in otherwise clearly guilty defendants getting yet another trial. But make no mistake, almost every last one of thesecases is not an ``innocent on death row.'' It is someone whose case is overturned, like two cases I'm getting ready to retry, solely because the victim's family was allowed to tell the sentencing jury something about what the victims were like as living human beings, before the defendant robbed them of their lives. We can and must use technology to accomplish what Senator Smith has called ``making a good system near perfect.'' ``Near perfect'' is the operative expression. No human endeavor is without risk. Our elaborate system of appeals in capital cases has the lowest error rate not only of any criminal sanction in the world, but is far less risky than elective surgery or a trip to the pharmacy. We must never forget the other, massively larger part of this risk-benefit analysis--the thousands of truly innocent victims who die at the hands of criminals that the legal system has failed to hold accountable. I commend Senator Leahy for bringing the issue before your committee, but I strongly urge you to adopt the precise and effective language of Chairman Hatch's proposal. The standards laid down in Chairman Hatch's bill would ensure that even cases where defendants have exhausted state and federal appeals would be eligible for DNA testing if the testing would have the potential to show ``actual innocence.'' Chairman Hatch's standard is similar to the statutes in New York and Illinois, as well as the standard enumerated by the United States Supreme Court in Herrera v. Collins \4\ Without this preciseness of language we will be opening the barn door to a flood of demands by jail-house lawyers who are indisputably guilty. The DNA resources in our nation are already taxed beyond their abilities. Senator Hatch's bill allocates money to strengthen those resources. I urge you to look carefully at this issue and consider both the ``actually innocent,'' a term which 99 percent of the time describes the killers' victims, and the ``actually guilty.'' And I thank you again for this opportunity. endnotes \1\ The Blooding, Joseph Wambaugh, 1989. \2\ David Boyd, DOJ Office of Science & Technology, 2000. \3\ Amnesty International USA, Program to Abolish Death Penalty, 2000. \4\ Herrera vs. Collins, 506 U.S. 390(1993). The Chairman. I think all of you have been excellent. I have really appreciated this, and, of course, along with Senator Leahy and others on this committee, believe we have to resolve these problems in a way that is best under the circumstances. That is why we file these bills, so that we can have all kinds of comment and criticism, and then we get together and see what we can do to resolve the problems. There is no question, there are some distinct differences between the two bills, but nevertheless both are well intentioned and both hopefully will help solve some of these very serious problems in our society. Now, Mr. Edmonson, you described the case of Loyd Winford Lafevers who confessed two and was twice convicted of the brutal kidnapping, beating, and murder burning of an elderly woman. In addition, Lafevers' testimony was corroborated by witness testimony. His execution was recently postponed to allow for post-conviction DNA testing even though there is absolutely no doubt about his guilt. Let me just ask you this question. Why not give Federal judges wide latitude to consider motions for post-conviction DNA testing? Is there a danger in providing too much discretion in authorizing post-conviction testing? Mr. Edmonson. The danger from the standpoint of the---- Senator Thurmond. Mr. Chairman, pardon me for interrupting. I have got to leave and I would like to ask that my statement follow that of the ranking member of the committee. The Chairman. Well, I will be happy to put that in the record, without objection. Thank you, Senator Thurmond. We appreciate you being here. [The prepared statement of Senator Thurmond follows:] Prepared Statement of Senator Strom Thurmond, A U.S. Senator From the State of South Carolina, Regarding Post-Conviction DNA Mr. Chairman, I am pleased that we are holding this hearing today. DNA testing is the greatest advancement in criminal law since fingerprinting. In fact, law enforcement is beginning to maintain DNA samples in much the same way as it keeps fingerprints, and this development is revolutionizing crime fighting. The more complete and integrated our DNA criminal databases are throughout the country, the more violent crimes we can solve. Of course, DNA is just as effective at establishing innocence as it is at determining guilt. Indeed, opponents of capital punishment have seized upon cases where a defendant has been taken off death row because of DNA testing as proof that the death penalty is broken and should be discarded. I strongly disagree. The death penalty is a necessary form of punishment for some of the most heinous and inhumane crimes. Sometimes it is the only punishment that can provide finality for victims and that truly fits the crime. Only steadfast opponents to the death penalty can argue that it is used too often in the federal system today. Last year, my subcommittee found that the Attorney General permits prosecutors to seek the death penalty in less than one-third of the cases when it is available. Also, we discovered that the Attorney General has established an elaborate review system at Main Justice to consider whether a U.S. Attorney may seek the death penalty. Her review permits defense attorneys to argue that she should reject the death penalty in a particular case, but it does not permit victims to argue for the death penalty. Capital punishment has long been under attack in the media and on the political left, and today the assault is at least as relentless as it has been in decades. Yet, the public continues to strongly support the death penalty, and its use is more common today than it has been since the Supreme Court reinstated the death penalty in 1976. I welcome the expanded use of DNA testing to help eliminate any doubt about a defendant's guilt or innocence. We must do all we can to promote absolute certainty in our criminal justice system, especially when the death penalty is at stake. As we do, we will actually make the case for the death penalty stronger, not weaker. The criminal justice system in America is not perfect, but overall it works quite well. It is our responsibility to make any needed reforms over the federal system, but the states must maintain responsibility over their systems. The Federal government can provide resources to encourage them along the way, but the solution is not a federal takeover of the administration of justice throughout the courtrooms of America. I welcome our witnesses to discuss this matter. The Chairman. Mr. Edmondson. Mr. Edmondson. The danger that the State recognizes in that kind of a scenario is simply the open-ended extension of the appellate process and the lack of finality to the appellate process. The case that you mention, the Lafevers case, is particularly egregious because at its retrial in 1993 where Lafevers was again given the death penalty, DNA testing was discussed by defense counsel and they chose not to have DNA testing done. And it was only on the eve of execution that they decided at that hour that DNA would be relevant. The State objected on the grounds that it could not possibly under any circumstances, regardless of whose blood was on the pants that they wanted tested, show Lafevers innocent under any theory. Notwithstanding that, the order was entered, the stay was placed, and that case is on hold indefinitely. The Chairman. I see. Ms. Camps, do you believe that a post-conviction DNA testing statute should require a prisoner to make an initial showing that testing has the potential to prove innocence in order to obtain testing, and if so, why? Ms. Camps. I think that is really a critical component of the bill because it is really the appropriate standard that we are looking for in determining access to post-conviction DNA testing, not whether there should be access, but that standard for it without an assertion of actual innocence, without identity being at issue, the DNA is not always material to the case. And so that could be an enormous problem for us if there is a wide open standard which is based merely on relevancy, such as the Leahy bill, because relevancy, no matter how weak the evidence may be, if it tends to prove an issue to the jury, it might be considered evidence that could be admitted under the Leahy bill. The Chairman. Thank you. General Spitzer, you stated under the New York statute post-conviction testing is allowed only, quote, ``upon the court's determination that if a DNA test had been conducted on such evidence, and if the results had been admitted in the trial resulting in the judgment that there exists a reasonable probability that the verdict would have been more favorable to the defendant,'' unquote. Now, interpreting this statute, the New York court, in People v. Tukes ruled that, ``The legislature intended that DNA testing be ordered only upon a court's threshold determination that testing results carry a reasonable potential for exculpation.'' My legislation is based on the New York statute in key respects. Both allow post-conviction DNA testing only in cases where testing has the potential for exculpation. Do you believe that it is appropriate to require that post- conviction testing have some potential for exoneration, or should testing be required in any case where it, quote, ``may,'' unquote, produce relevant exculpatory evidence? Do you share any of Mr. Edmondson's and Ms. Camps' concerns about requiring testing in unnecessary cases? Mr. Spitzer. I think anybody who speaks and is mindful of the budgetary implications for any governmental entity obviously shares their concerns. The question is are they outweighed by the larger concerns that militate in favor of the Leahy bill. And without adopting specifically the language that is in the Leahy bill, I think that clearly there is a divergence between what I view as the excessively high threshold that you have set for the prime facie showing that would be necessary to get the testing versus any absence of standards at all. I think what we are seeking is to balance these concerns and ensure--and this is what this statute is all about--ensure that we will permit access and will permit testing to be done where--and I think the New York statute is rightfully phrased-- there is a reasonably probability that the verdict would have been more favorable to the defendant. There is nothing magical about that phrasing. I have testified that it has worked. I think that Senator Leahy has tried to craft a standard that perhaps has a slightly lower threshold. I think that I would in this context err on the side of a lower threshold rather than a higher threshold. I have heard the testimony of my colleagues, individual cases where, of course, the system might be abused. That is not dispositive testimony, in my view. What we are looking for is those cases where we need to guarantee access to testing to permit defendants to prove and obtain the exculpatory evidence. I think the New York statute has worked. I do not think it is magical, but I would certainly err on the side of a lower threshold rather than a higher one, and I prefer the Leahy statute. The Chairman. Well, I think my legislation contains a fair and reasonable standard for testing. To obtain post-conviction testing, the defendant must make a, quote, ``prime facie,'' unquote, showing that, one, identity of the perpetrator was an issue at trial; and, two, DNA testing would, assuming exculpatory results, establish the defendant's innocence of the crime. Now, a prime facie showing, in my opinion, is a lenient requirement. In 1977, the Seventh Circuit defined the term ``prime facie showing'' in the Federal Criminal Code. The court defined prime facie showing as, ``simply a sufficient showing of possible merit to warrant a fuller exploration by the district court.'' In other words, the legislation that I have filed requires a showing that post-conviction testing has the potential to prove innocence. This is consistent with, and I think arguably more lenient than the Illinois, New York, and Arizona post- conviction DNA statutes. Mr. Spitzer. Well, we do not feel that it is more lenient. The Chairman. I would like you to look at it because I think that is the case. Mr. Spitzer. Well, I have heard you say so. I respectfully disagree with you. I think there are also instances where innocence, per se, may not be at issue, where there would be factors relevant to sentencing, certainly in the capital context where it would be important to permit testing even if somebody's presence at a crime scene was not the only factor, where DNA testing would nonetheless shed light on the nature of the crime and what happened. So I think there are several elements in the prime facie standard that you have put together here, and I admire your bill and I think it is an enormous step forward. The notion of Federal guidelines is something that I fully support, despite the federalism concerns my colleagues have raised. Nonetheless, when it comes to crafting theparticular standard that is in your bill, I think again there are pieces there that I would, with all due respect, disagree with. The Chairman. Thank you. My time is up. I will submit the rest of my questions in writing. I am sorry I didn't get to ask---- Senator Leahy. Go ahead. The Chairman. Could I just take one or two questions because I would like to get one for each of you? Senator Leahy. Sure. The Chairman. Let me just ask each of you a question. Mr. Marquis, there have been reports in the media recently about poorly funded indigent criminal defense lawyers. I am concerned about that, too. Are you aware that the Federal Government, through the Administrative Office of U.S. Courts, spends approximately $20 million per year in payments to criminal defense lawyers to represent State death row inmates just in Federal habeas appeals? As a prosecutor from a rural county, do you always have greater resources than the criminal defendants that you prosecute? Mr. Marquis. No. Actually, Senator, it is the exact opposite. As I say, I have prosecuted probably 3 capital cases and 12 or 13 noncapital murders. I have been outspent a minimum of 10 to 100 to 1 by indigent defense in the State of Oregon. I don't object to that. I think that if you are going to put somebody on trial for their life, you ought to give them good defense. But I think this idea that across the United States these are drunk, sleeping lawyers is a myth. I just don't think it is true. The Chairman. Well, thank you. Mr. Baird, just one question to you and then I will submit the rest of my questions because I don't want to impose on my colleagues' time. Mr. Baird, you described the Criner case in detail. Clearly, Mr. Criner would be able to obtain testing under the standards in my legislation, and he would be able to move for a new trial based on the testing results, notwithstanding the time limits based on such motions. Now, the question really is for you, Mr. Marquis, and Mr. Edmondson. How should courts consider DNA testing results if post-conviction testing produces exculpatory evidence? Mr. Edmondson. How should they consider it? The Chairman. Yes. Mr. Edmondson. I think in the Criner case, for example, the trial court there, a very prudent man, conducted a hearing where all of the evidence was admitted into evidence and then the trial judge made specific findings of fact and conclusions of law, and submitted those to the Court of Criminal Appeals, which had jurisdiction to review those findings. And I think that ought to typically defer heavily to the trial judge who makes those findings, and if those findings are favorable to the accused, not hesitate to grant a new trial. The Chairman. Mr. Marquis? Mr. Marquis. I am concerned sometimes because a judge is under tremendous pressure not to be reversed, and as we can see from this study, they get reversed all the time. And I would go back to something that General Spitzer said that I think really concerns me, and it deals with actual innocence. He is talking about re-testing not simply to determine if people didn't do it, but if it would be helpful during the sentencing proceeding. And I think we need to focus on actual innocence. The Chairman. Let me just ask you one additional question on that point. Should courts examine post-conviction testing results under the established procedures for considering a new trial, provided the time limits are waived, or is a new procedure needed? Mr. Marquis. I think the existing procedures, as long as your bill went into effect, would give trial courts the ability to make that decision. The Chairman. General Edmondson. Mr. Edmondson. I think it goes back to the question of focus on what it is the DNA evidence purports to prove. If all it does is provide additional evidence that might have been interesting to a jury, then I would object to causing a new trial based upon that. If it does, in fact, establish factual innocence, then certainly, consistent with the law passed in Oklahoma, consistent with our policy prior to that law, it ought to result in a new trial, if not an immediate agreed order of dismissal without a new trial. I certainly can't comment on the Texas case because I am not familiar with it. I don't know what the thinking was, but in a case where there may have been multiple perpetrators, the fact that the result does not match this particular defendant is not necessarily exonerating. The Chairman. Were there multiple perpetrators in that case? Mr. Baird. No, sir. The entire theory---- The Chairman. I gathered that there was not. Mr. Baird. I am sorry? The Chairman. I took it that there were not multiple perpetrators. Mr. Baird. The entire State's theory was that Mr. Criner was the sole perpetrator, that he deposited the semen found in the victim, and that that semen did, in fact, match blood---- The Chairman. And two DNA testings showed it wasn't his. Mr. Baird. Yes, sir. The Chairman. That is outrageous to me. I mean, I think either of our bills would resolve that, and hopefully we will get the best bill out of the committee that we possibly can. All of your testimony has been very helpful here today. Let me just say, under my bill if post-conviction testing produces exculpatory evidence, the defendant is permitted or allowed to move for a new trial based on newly discovered evidence, notwithstanding any previous statutory time limits on such motions. Now, my legislation directs courts to consider a new trial motion based on post-conviction testing results under established judicial precedents. At least that is what we believe. By contrast, other proposals seem to create a new procedure in which courts must grant a hearing and are authorized to do so to give any order that serves the interests of justice, any order. Now, that seems exceptionally broad to me and I am very concerned about it because what I don't want to do--the whole purpose of that 1996 bill, the antiterrorism and effective death penalty bill, was to end the charade of just multiple, frivolous appeals that literally kept judgment from being executed foryears and years and years. Now, I can't blame criminal defense lawyers who hate the death penalty for utilizing every aspect of the law to try and keep their clients from being executed. On the other hand, the law is the law, and it was a matter of great concern to us. So we passed that bill, and it has worked, I think, pretty well. There are critics, of course, but generally they are critics who just don't like to have a finality of judgment. But be that as it may, I will submit the rest of my questions. I apologize for taking two or three minutes more. [The questions of Senator Hatch are located in the appendix.] The Chairman. I will turn to Senator Leahy. I will give you whatever time you want. I will turn to the ranking member, who really has been instrumental in bringing this to the forefront. Of course, all of us are concerned about it on this committee, and I think everybody on this committee is aware of and concerned about these problems, and I think this committee in the end will do a very good job in resolving them. I think your testimony in this case has been very, very helpful to us. Senator Leahy. Well, Mr. Chairman, a lot of people brought it to our attention. I mean, the editorials in the Washington Times in favor of this, columnist George Will in favor of this, Pat Robertson in favor of this, Bruce Fein in favor of this, as well as the New York Times and the Washington Post--these people also bring it to our attention. Judge Baird, I think Chairman Hatch may have left the wrong impression of what his legislation does inadvertently. You indicated in your written statement that you supported Governor Bush's decision to grant a reprieve to Ricky McGinn so that DNA tests could be performed. Now, as I understand it, the new tests could not establish the innocence of the crime he was convicted for. What they might do is establish whether he was eligible because of the facts of the case for the death penalty under the Texas law. Now, Chairman Hatch's bill would not allow DNA testing for that purpose, the purpose of whether he would be eligible for the death penalty or not. Is that your understanding? Mr. Baird. I understand basically that. I understand that there could be perhaps a possible total exoneration, but I certainly understand that there could be an exoneration of the rape, which was the aggravating element that raised the murder to capital murder for which he received the death penalty. Senator Leahy. So it could not acquit him of the murder, but may acquit him of the aggravating death penalty-imposing activity? Mr. Baird. That is right, Senator, and without that activity, then, of course, he is not death-eligible and would not be on death row. Senator Leahy. I would note that Chairman Hatch's bill would not allow DNA testing for this purpose, but I agree with you and I agree with Governor Bush on that. The Chairman. My bill would. Senator Leahy. Now, Mr. Marquis, I find fascinating some of your testimony, being outspent a hundred to one by assigned counsel, when you have police officers and technicians and those who hold evidence and all that. Then they must be spending literally millions of dollars on those cases on defense attorneys. As a prosecutor, I often found myself outspent, but never at a hundred to one. You may want to talk to your legislature about this. Mr. Marquis. I do, frequently. Senator Leahy. I also looked at your testimony about a person flying on an airplane faces a higher chance of death than a person on death row. The report yesterday, the most comprehensive study of death penalty cases ever done, showed that 68 percent of capital convictions suffered from serious reversible error. Frankly, if I thought a plane had a two-in- three chance of crashing, I would not fly on that airplane. Now, Ms. Camps, in your written testimony you say that the---- The Chairman. Can he answer that? Senator Leahy. Well, I was just making an observation. The Chairman. Yes, but I mean I think he ought to be able to answer. Senator Leahy. Well, no. I am just going by his testimony, Mr. Chairman. He says he is outspent a hundred to one, and I said I would hope that he might be able to get---- The Chairman. But I am talking about the 68 percent. Senator Leahy. We will go back to that in just a moment, if we could. Ms. Camps, in your written testimony you say the Leahy- Smith-Collins bill requires law enforcement to preserve all biological evidence throughout a person's entire period of incarceration. That is not so. My bill permits the government to destroy biological evidence while a person remains incarcerated so long as it notifies the person of its intention to destroy the evidence and affords the person 90 days to request DNA testing. Do you think that 90-day notice of the destruction of biological evidence is going to impose undue costs on the State of California? Ms. Camps. Well, with all due respect, Senator Leahy, what we anticipate are forum responses from the defense community asking us to preserve the evidence, and basically then the bill would absolutely mandate that we are going to preserve the evidence for the entire period of incarceration until we resolve the question about whether that evidence is going to be relevant to the defendant. Senator Leahy. So the 90 days would impose an undue cost on the State of California? Ms. Camps. The actual preservation of evidence throughout a person's entire period of incarceration would impose a significant burden upon us. Senator Leahy. Well, let me ask you this. California, according to the Columbia University study, spends on theircases about $1 million for a killer sentenced to life without parole. It is between $4 and $5 million if they get capital punishment. Now, of course, California has the absolute right to spend $3 or $4 million more to seek the death penalty than to have life without parole. But with that extra $3 to $4 million, is it your testimony that the very specific and very limited DNA testing in my bill, something that may save an innocent person from execution, is placing an undue cost burden on the State of California? Ms. Camps. We have to look at it in terms of our total resources for using DNA evidence at trial and our resources for analyzing the samples as well, our laboratory resources for examining the DNA evidence. And so in that context, in the context of what it costs us to actually perhaps re-test all available case evidence, we do see that as a significant burden. And we are hopeful that a more appropriate standard that would limit the availability---- Senator Leahy. Even though the $3 to $4 million extra that it costs to execute somebody over the cost of life without parole--even with that extra cost already borne by the State of California, the additional costs of DNA testing could be too much? Ms. Camps. It is not the additional cost of a test in any particular case. It is the additional cost of the entire infrastructure of a system proposed by the bill for the preservation of evidence. Senator Leahy. I just thought you were a wealthier State, but I appreciate that. Judge Baird, this week the Chicago Tribune reported that of the last 132 executions in Texas, 43 have been of defendants who were represented at trial by counsel who have been disbarred, suspended, or disciplined for ethical violations. Has Texas changed their record that has led to that kind of a disturbing report? Mr. Baird. I cannot sit here today with any confidence and tell you that Texas has, in fact, changed. That is what I liked about your legislation, was the recognition that DNA is not the silver bullet in all these cases, that what you have got to have in these other cases is adequate, effective, competent counsel. And the problem in Texas is there is no guideline for this competency standard, and therefore it is kind of left to each individual trial judge to set that. And I think we would be better off if we had some type of Federal standard, as proposed in your legislation. Senator Leahy. Now, General Spitzer, you have heard Ms. Camps talk about how this would impose a burden on the State of California. You have testified that New York has had legislation similar to the Leahy-Smith-Collins provision on DNA testing for a number of years. Has the cost of providing access to DNA testing been prohibitive? Mr. Spitzer. No, I certainly do not think so, and I am not sure that I accept the purely utilitarian calculus that some of my colleagues are suggesting either. I think your point is well taken that what we are aspiring to here is a degree of certainty and assurance of correctness in our criminal justice system that defies the calculus of is it worth $5 or $100. I think that the incremental costs relating to storage of samples simply should not be the determinative factor. And with respect to your notice provision, my understanding and expectation would be that if, in fact, a notice were sent out that the State intended to destroy certain biological samples, perhaps we would get a forum response back from the defendants requesting that it be restored. But then we could shift the burden back to make a prime facie showing to establish whatever needed to be shown to justify the test. So I think that there are creative ways and reasonably simple ways to overcome that problem that confront both the cost of storage, which would permit the State no longer to become a storage bin for all old evidence, but also to aspire-- not to necessarily reach certainty, but to aspire to the certainty that your statute reaches for. Senator Leahy. Well, under New York's post-conviction DNA statute--and obviously I have studied that and Illinois a great deal as we were trying to put this together because you have a track record--as I understand it, the defendant can enforce his right to get DNA testing through the courts, and I followed that in my legislation. Now, under Chairman Hatch's proposal, there is no enforcement method. I wonder about the New York approach. Has it resulted in undue litigation? Mr. Spitzer. No, it has not, and I think it has worked out very well. Judges exercise their discretion, as they always do appropriately, and I think the track record is one that suggests that, in fact, we could replicate that standard nationally without any undue burden to our judicial system. Senator Leahy. General Edmondson, we are going to be hearing today from Dennis Fritz. He spent 12 years in prison in Oklahoma for a crime that later it was determined he did not commit, and that was thanks to DNA testing. Now, the State opposed having that DNA testing for years. All this time he was locked up, he was asking for DNA testing and the State said no. He and his co-defendant, Ron Williamson, were finally released from prison last year. In fact, I think Williamson had come within less than a week of being executed. Fortunately, he wasn't. Now, would you agree that legislation that helps people like Fritz and Williamson to get DNA testing that proves their innocence may well be responding to a real problem? Mr. Edmonson. I would certainly agree that the legislation that Oklahoma passed this year would have been very useful to Mr. Fritz at the time of his appeal. The co-defendant, Mr. Williamson, who was on death row--and by the way, this image of his being within days of being executed--the common practice prior to the Effective Death Penalty Act was when one stage of the appeal was over and nothing happened on the defense side, the State would ask for an execution date to get the appeal off high center. By asking for an execution date, we would then give a deadline to the defense to file their next round of appeals. In Mr. Williamson's case, his post-conviction relief had been denied by the Supreme Court and no action had been taken to initiate Federal habeas. Because of that, the State filed an application for an execution date, which was granted by the court. Everyone knew that the defense was going to file a petition for writ of habeas corpus and the execution date would be stayed. If Mr. Williamson suffered distress over that, it was because his attorney didn't share that fact with him. Senator Leahy. Well, General, just so we don't put toofine a point on this, if you are Dennis Fritz and you are Ron Williamson and you are on death row, even though you may have other appeals coming up, if you know you are innocent and you know that there is DNA testing that you are being denied out there that might prove your innocence, isn't it reasonable to assume there might be a tad bit of stress on the part of the person who is there just figuring that his life is in the hands of lawyers who may or may not do this right or a system which may or may not allow him to have his evidence and he may well end up being executed? Mr. Edmondson. I know, Senator, that I would start suffering stress the day I walked into the prison and it would continue. Senator Leahy. I would think so. Mr. Edmondson. Williamson was reversed and sent back for a new trial on incompetence of counsel. In preparation for new trial, the State asked for DNA testing. As a result of the DNA testing, the State and defense jointly moved to dismiss the charges against Williamson and Fritz. Again, we do not want to be in the business of incarcerating, much less executing innocent people. Senator Leahy. I have discussed this with your governor. In fact, he and I were on one of the Sunday talk shows recently about this and expressed somewhat similar views. I will submit my other questions for the record, Mr. Chairman. [The questions of Senator Leahy are located in the appendix.] The Chairman. Thank you, Senator Leahy. We will turn to Senator Grassley. If we could limit ourselves to five minutes, I would appreciate it, but I certainly want to have as many questions as we can ask. But we also can submit questions, and I hope that all of you will immediately respond to help the committee to understand this better so that we don't foul it up. Senator Grassley. Mr. Marquis, I would like to start out with asking you to respond to a study that Senator Leahy brought up, the Professor Liebman study. Is this really a new study? Does it show that these prisoners were actually innocent? Mr. Marquis. No and no, Senator Grassley. It is a recycled study. Professor Liebman is a prominent criminal defense lawyer, as well as being a professor at Columbia. His sample for some reason goes from 1973 to 1995. The death penalty wasn't reinstated until 1976. And he seems to have a very odd form of mathematics because he apparently counts--if the same case is reversed two or three times, that counts as more reversals. It has nothing to do with whether or not the people are factually guilty or actually innocent. It has to do with the idea that if we use, as Justice Powell says, super due process in capital cases, which I believe we must, we are going to have a high reversal rate. I think the acknowledged reversal rate in the country is about 33 percent. And I note with amusement that Professor Liebman's study-- by their standards, the very best States are Texas and Virginia, which have the most executions. And I suspect that some of your witnesses who oppose the death penalty are not going to hold up Texas and Virginia as paragons of death penalty systems. Senator Grassley. Thank you very much. Prior to asking a couple of questions, I want to make this point. To get ready for this hearing I asked some questions in my office of some people from the FBI about the ability to do the sort of requirements that these bills might require. And there are evidently a few over a hundred crime labs that do DNA testing and they are pretty busy with what they have right now for cases pending and requests for tests. If we are going to have backlog of cases of people who are on death row having DNA testing, we are going to have to have considerable resources put into it so we don't get further backlogged. I don't make this point to say that we should not consider legislation like this to know that only the guilty are put to death, but with the idea that we need to make sure that we put the resources into it that are there or understand that there is going to be further backlog someplace else along the road. So I wanted to make that point, and if there is any disagreement, I would ask anybody to check me on it. I want to start with you, Ms. Camps. You stated that DNA testing programs should not undermine the criminal justice system from the financial point of view. Could you elaborate on the potential cost to the criminal justice system if Congress forces States to establish post-conviction DNA testing? Ms. Camps. Well, it is difficult to estimate exactly what the cost of a bill will be of this magnitude and we are worried about the impact of it. We have several matters that figure into the cost of the bill, including the cost of taking reference samples from the defendant, the cost of the investigator time to look at and review the evidence, the cost of the district attorney time to review the case, the cost of the trial and appellate courts to review the decision. There is an enormous new burden on the criminal justice system as a whole for a program that would have a broad mandate to sort of retest all available evidence. We look at the Leahy bill more as a test first, ask questions later approach, and we want the approach that asks the questions first and only tests in appropriate cases in order to limitthe expense. Senator Grassley. Are you suggesting that requirements contained in this legislation without the resources being put to it are effectively a moratorium, then, on the use of the death penalty? Ms. Camps. Well, we think that to the extent that the bill permits multiple testing and it certainly wouldn't prohibit it, it could certainly be used as a stalling tactic for defendants to ask for, first, an STR test, then a mitochondrial DNA test, then a polymarker test. And so that is a factor in considering what would be appropriate legislation and what would be the effect of permitting multiple testing requests. Senator Grassley. Now, I want to ask Mr. Baird to respond to Ms. Camps' suggestion that she made in her testimony that the Leahy bill doesn't adequately distinguish between requests for DNA testing based on arguments with merit and arguments without merit. Mr. Baird. Senator, I don't follow that line of reasoning after reading Senator Leahy's bill. I understand that the defendant has got to show that testing would create a reasonable probability that he was erroneously convicted. That seems to me a fairly high threshold and standard before which he would even be entitled to this testing. Senator Grassley. Then maybe I should ask Ms. Camps, then, to respond to your response. Ms. Camps. I would like to respond to that because we read Senator Leahy's bill very differently that it has a contrast with both the Illinois and the New York language that is very significant. I mean, language that says may produce non- cumulative exculpatory evidence relevant to a claim is very different from a statute that requires identity be an issue and an actual assertion of innocence, and that the evidence would be materially relevant to the defendant's request. The key words that are missing there are ``material'' and ``innocence.'' So to the extent that the Illinois statute is supposed to be a paradigm for the Leahy bill, we don't see it, nor do we see it from the New York statute. That is why we also believe that the New York experience would not be directly relevant. The New York statute has a cut-off that applies to cases before 1996, and the reasonable probability that a verdict would have been more favorable to the defendant. Now, that same reasonable probability language does not appear in the Leahy bill, and that is a term of art to us in the related law of the materiality of undisclosed evidence and in effective assistance of counsel cases. It means probability sufficient to undermine confidence in the outcome of the verdict. So, to us, that is a very different standard than ``may produce relevant evidence'' because the relevant evidence may not even be to a disputed fact. Senator Grassley. My time is up, and I will submit the rest of my questions for response in writing. [The questions of Senator Grassley were not available at press time.] The Chairman. Thank you, Senator Grassley. We will turn to Senator Biden. STATEMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR FROM THE STATE OF DELAWARE Senator Biden. Thank you, Mr. Chairman, and thank you for holding this hearing. You and I have been here a long time. I have been here 28 years, and I hope we get it right this time because this pendulum keeps swinging back and forth. You have got those who want to hang them high and those who suggest no one should be hung, figuratively speaking, and we have gone through this exercise. I predict to you that if we don't take some corrective action, the American public is going to shift its opinion markedly, as it is beginning to do, down from 90 percent favoring the death penalty to 60 percent. When I first got here, only 40-some percent of the American people supported the death penalty. By the time it became clear that the average person committing a capital offense in a State served, on average, only seven years in prison, there was a hue and cry the other way. So this pendulum swings back and forth in a way that is not healthy not only for the criminal defendant, but for the justice system. I should say at the front end of this thing the first Federal death penalty after it was declared unconstitutional that was declared constitutional was a bill written by me in 1988, in the Biden crime bill, because the Crime Control Act of 1994 had the death penalty at the Federal level. I support the death penalty. Let me put it this way: I don't oppose the death penalty on moral grounds, but I have been fastidious in arguing along the lines Senator Smith did that if you are going to have a death penalty, you had better go out of your way to make sure you don't execute an innocent person. I want to remind everybody of the chronology here, at least at the Federal level. The 1988 Act passed. In 1991, I asked for the study that is now finally the one we are now talking about. I am the guy that asked for that study when I was chairman of this committee that has just been released. Then my friends, the chairman and others, became very focused on habeas corpus, which I thought should have stayed the way it was and was not being abused. And to the extent it was abused, it was a small price for society to pay to make sure an innocent person didn't get wrongfully convicted and put to death. Then we went through a big fight over that. I introduced, and I am going to ask to submit for the record the Habeas Reform Act of--mine was defeated--the short title was ``The Act may be cited as the Habeas Corpus Reform Act of 1993.'' I would like to ask unanimous consent that section (c)(8), ``Provision of Counsel,'' be reprinted in the record at this point, if I may, Mr. Chairman. The Chairman. Without objection. [The information referred to follows:] [GRAPHIC] [TIFF OMITTED] T4753A.014 [GRAPHIC] [TIFF OMITTED] T4753A.015 [GRAPHIC] [TIFF OMITTED] T4753A.016 [GRAPHIC] [TIFF OMITTED] T4753A.017 [GRAPHIC] [TIFF OMITTED] T4753A.018 [GRAPHIC] [TIFF OMITTED] T4753A.019 [GRAPHIC] [TIFF OMITTED] T4753A.020 [GRAPHIC] [TIFF OMITTED] T4753A.021 Senator Biden. What all of you end up saying at some point along the line here is we should get it right the first time, but we hardly ever get it right in terms of criminal defense counsel. Nobody, nobody, nobody I know can look me in the eye and tell me that they think that there is adequate criminal defense counsel in capital cases. It may happen, but when it happens, it is an accident. It is an accident as much as it is a certainty. So what I don't understand is why we don't write back into the law standards. We have the right federally, notwithstanding your sacred State rights, to impose upon you all minimum counsel standards in death penalty cases in Federal habeas corpus, and I don't understand why we don't do that. If, in fact, we had those in place--and I will not take the time to read them now--85 percent of the cases we are talking about wouldn't even be in the game. You wouldn't have to worry, Mr. Spitzer--and I know you and I are on the same side of this thing--you wouldn't have to worry about preserving all that evidence because we would have had a counsel smart enough to ask for its presentation at the front end. And if it was being withheld, you would have had a counsel smarter in the appeals process to be able to move on it. So we don't have adequate counsel. I have tried those cases. My friend always talks about his days as a prosecutor. We are in agreement. I was a public defender. If you want to know whether you are a good trial lawyer, be a public defender. We have no one on our side. When you win when you are a public defender, you haven't got the FBI, you haven't got the State troopers, you don't have any investigators. You don't have nothin', as they say. So I have been on the other end of this defending these cases, and the truth of the matter is one of the first cases I tried, my motion was my client was being represented by incompetent counsel--me. I challenge any one of you to, one month out of law school, being assigned a capital case. Do you all think you are competent enough to handle that case? Mr. Marquis, do you think you would have been? Mr. Marquis. No, absolutely not. Senator Biden. You know darn well you wouldn't have been. Look who we assign to these cases. Nobody makes money on these cases unless you represent an O.J. or something like that. That doesn't happen, so what happens? We take the people either who have no clients because they are incompetent or we assign people who are brand new and may become competent. Death penalty appeals are complicated. I can see the warning light is on. I am inclined to call for an absolute moratorium on the death penalty. And I want to congratulate Senator Feingold for leading on this effort here. My problem with the Feingold legislation is that there is a requirement that the United States Congress has to act affirmatively or negatively on the recommendation of a commission. I think that is bad public policy for us to force ourselves to do that. I don't think we should set a commission up and then be locked into what they do unless we affirmatively act. But I agree with the ABA in calling for a moratorium on the death penalty. My only admonition to you all as you focus on this is-- hopefully, this is the first of many hearings here--we have got to get this right, we have got to get this right, and there is not adequate counsel now made available in death cases. It does not exist. There should be a minimum standard that we have. And as you point out, in Texas, Mr. Baird--how many judges are there out there? A big State. Mr. Baird. Seven hundred. Senator Biden. If each of them makes a judgment as to whether or not counsel is adequate, I think we have one heck of a lousy standard out there and there is no level playing field on that score. Now, this stuff does cost money, and I am going to say something that maybe will cost me at home. But I believe my constituents, who probably support the death penalty by more than a majority, are willing to spend money to make sure we get it right, to make sure we get it right. So my only comment, Mr. Chairman, is that at the Federal level, since the two Acts I referenced--I authored both of them--since that occurred, there have been a total of 18 people sentenced and now pending on appeal. There are 3 awaiting re- trial, 32 sentenced to less than death, 10 acquitted. Twenty- four requests for death penalty were withdrawn by the Federal Government. The prosecution was discontinued in 62 cases; committed suicide or died in the meantime, 3, and waiting or on trial for capital charges, 44, for a total of 196 death penalty cases brought federally since then. You all kill more people than that in Texas, or almost that many people, 131 over the period of time this was in place. I really think this is something that we should try to take--and I am not suggesting any of you have done this--we should try to take the politics out of this. We should try to point out, as Senator Grassley did, that the study we are about to hear does not suggest that those 7 in 10 errors were errors relating to innocence. That is the implication. Those who don't like the death penalty are out there saying, you know what this means, this study I asked for in 1991, this means that 7 out of 10 people were convicted of death and they are innocent. Not true. That is not what itsays. But I hope the rest of you admit that it does mean some of these folks were innocent, flat out innocent. And you can't prove the negative. How many people have been executed who were innocent? A rhetorical question and I will yield the floor after it. Would any of you be willing to bet-- you say, Lord, here is the deal. I am going to make a guess. Now, if I am wrong, I don't get to heaven. I will bet you, Lord, nobody in any of the State systems in the last 10 years have been executed who was innocent. Are any of you ready to make that one, bet your entry? Mr. Marquis. Mr. Chairman, can I answer that? The Chairman. Sure. Senator Biden. Sure. You must be an atheist if you are ready. [Laughter.] Mr. Marquis. No, just confident in my goodness, Senator. It goes back to Senator Leahy's comment about my comparison with airplanes. The airline that I fly on, which I won't name but I am very fond of and I fly all the time, has lost 270 people who are dead as a result of various things. You have a number of very skilled witnesses, and Mr. Scheck in particular, who will come up here. I am a very concrete thinker. I don't think they are going to be able to tell you about one single human being that is dead who should not have been since capital punishment was reinstated. Senator Biden. I think that is true. Mr. Marquis. So when you compare that kind of risk analysis, you are right, Senator. If we are looking for absolute perfection, we are never going to find it. Senator Biden. Well, old concrete thinker, let me put it to you this way. If I sat on a different committee, the Commerce Committee, and those 219 people or whatever who died who fly with your airline--hopefully, we went and investigated whether those airlines had the proper maintenance checks. Since those people died, I will lay you 8 to 5 we put in new rules. We have increased the probability it won't happen again because we required maintenance records be checked a different way. Old concrete thinker, you wouldn't have done that. You would have sat here, based on what you tell me, and said we are not going to do anything. Leahy is not asking for perfection. Leahy is saying, OK, 219 were killed, to keep this crazy metaphor going; 219 were killed. All I am saying is maybe we should go back and look at the way we check the maintenance records. The maintenance records aren't being kept accurately enough, and so what I want to do is pass a new Federal law saying you have got to check the plane once a week instead of once a year. That is all we are saying here. He is not asking for perfection. What we are asking for is what is a rational standard for us to apply to increase within the probability of what reasonable people would look to the likelihood that an innocent person will not die. You may be right about which bill is better--Leahy, New York, Illinois. That is arguable, but I hope no one is arguing that DNA should not be a tool used and be able to be used more than it has been now, more than courts have allowed it now, more than we have applied it now and in the past. And in terms of competent counsel, I hope none of you are going to argue, because I think you are probably buried in concrete if you are intellectually, I don't have a problem; on balance, I believe in death penalty cases there is competent counsel. Do you believe that? Mr. Marquis. In my State, but I can't speak for the other States. Senator Biden. What does your gut tell you? You are ready to comment on DNA in the rest of the States. Mr. Marquis. No. I am able to talk about the State where I have practiced and where I have both defended capital cases and prosecuted them. Senator Biden. And you are confident in your State the threshold for counsel is sufficient? Mr. Marquis. You have to be death-qualified. You have to have previously tried a murder case. You have to have two lawyers. You have to have practiced essentially for 10 years. Senator Biden. Good idea. Now, do you think that would be a good standard federally? Mr. Marquis. Absolutely, but I---- The Chairman. All right, you have just answered the question. It doesn't exist in other States. I thank you. I yield the floor. The Chairman. Senator Feinstein. STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA Senator Feinstein. Thank you, Mr. Chairman. I think Senator Biden has made a good point that there should be some national standard of competency for counsel in death penalty cases. I think it is absolutely egregious to have people represented by a counsel if that counsel is drunk, if that counsel is not qualified to try a death penalty case. Maybe more than anything what all of this shows is the time has come and we need to do it. Now, to both of these bills, let me say I am on the horns of a dilemma as to which bill I believe is preferable. It is my understanding that both Hatch and Leahy would allow DNA testing for any prisoner where there is biological evidence and the test can be met regarding relevance. However, the Hatch bill requires that DNA testing was not available at the time of trial. The Leahy bill simply requires that some advancements in testing have been made. So Hatch effectively limits testing to pre-1996 cases and provides an incentive that the testing be done at the time of the trial, whereas Leahy, as I understand it, allows testing even for future cases or at any time. So as I see it, those are the parameters between the two bills. Now, of the testimony we have just heard, I am most concerned obviously with the State of California. First of all, there are 164,000-plus people in State prison. There is a backlog of 115,000 DNA cases, as I gather. The testimony of Ms. Camps in essence said something about unfunded mandates in terms of Federal law prescribing and not paying for additional costs. So I want to ask Ms. Camps a little bit more about her specific concerns. You mention--and I am using your written statement now-- ``our difficulty with the Leahy bill is its open-ended mandate which essentially preserves and re-tests virtually all available case evidence,'' which I believe is a fair interpretation of what the bill does. It provides no meaningful filter for distinguishing baseless from meritorious claims. It does not have an evidentiary nexus between innocence and the DNA test required. It allows a trial court to resentence a defendant in any manner it seesfit, simply based on favorable results. And it points out that is ambiguous in several respects and has no timeliness requirements and no stated prohibition on multiple DNA resting requests. As I look at what California is saying, then, essentially what you are saying is it is kind of open season. Anyone can request a test at any time or any number of times, and I take it you see that, then, as an undue burden placed on the States by the Federal Government. Is that correct? If not, would you state exactly how you do see it? Ms. Camps. It does present a considerable burden, and the problem with the burden is that we only have certain laboratory resources to conduct testing on our DNA evidence. So if we experience a large volume of post-conviction DNA testing requests that we cannot handle, what we will have is a system where we postpone our pending case work, where we are not analyzing the unsolved evidence samples that will solve suspectless crime, and we are not processing our DNA databank samples. Now, DNA databanks are really the most significant crime- solving tool since fingerprints, and I can tell you that I am sickened by the preventable tragedies in my cases, the serial rapes and murders in our towns. But I am inspired by law enforcement's ability to do something about this in the form of DNA databank crime-solving. So the opportunity to stop the criminal defendant early in his criminal career before he has victimized numerous people is so significant and so substantial to us that we have to concentrate most of our resources--well, we certainly cannot detract from the resources that we give to DNA databank testing in order to accommodate other burdens on the DNA testing system here because our crime statistics in California show that the average violent sex offender begins his criminal career at the age of 18 and commits 8 more offenses. If we can stop that recidivist offender after crime number 2 instead of crime number 8, that is a real significant savings in terms of lives. And to the extent that we are detracting from our ability to test those samples and address our backlog, we are perhaps taking a step backward rather than a step forward. Senator Feinstein. Well, let me stop you here. The Chairman. Would the Senator just yield for a clarification because I think the Senator is under a misapprehension? Senator Feinstein. Yes, go ahead. The Chairman. Maybe Ms. Camps can clean it up. This is a key question that Senator Feinstein has raised. If post- conviction DNA testing could show that a prisoner was innocent, could such a prisoner under my bill obtain testing under the standards in my legislation? In other words, does my legislation provide a sufficient mechanism for obtaining post- conviction DNA testing, or are they foreclosed because the dumb attorney didn't move for DNA testing? Ms. Camps. We believe that the Hatch bill standard is appropriately stated because it is narrowly tailored to the situation where DNA evidence---- The Chairman. So nobody is going to be denied DNA testing under the Hatch bill. Ms. Camps. We don't believe so, no. The Chairman. I don't either. The fact is that there have been improvements in DNA testing, and that alone allows for further examination under my bill. So you are wrong on that conclusion, Senator. I just wanted to clarify that. Senator Feinstein. Well, I appreciate that. So you are saying it is not limited to pre-1996 cases? The Chairman. No, not at all. Anybody who meets the standards of the bill, which are reasonable standards, will be able to get DNA-tested, and use that in court for a motion for a new trial. Senator Leahy. Except that Mr. Fritz under your bill, Orrin--Mr. Fritz is going to testify later--would not have had DNA available under---- The Chairman. He surely would. Senator Leahy. No, he would not. The Chairman. Yes, he would, because DNA testing has been refined and it has been improved. Senator Leahy. Well, we will let Mr. Fritz testify. The Chairman. Well, he doesn't know. I mean, my gosh, Ms. Camps knows. Am I right on that, Ms. Camps? Ms. Camps. Yes. I mean, the wording in the bill was not subject to DNA testing requested because the technology for such testing was not available at the time of trial. The Chairman. That is right. Ms. Camps. And so actually that is a fairly wide open standard for testing there because availability might be equated with general acceptance, which in California actually has not taken place until recently. Senator Feinstein. Supposing it was available and the counsel didn't ask for it or there wasn't DNA testing at the time of the trial, that individual should still have the ability, if biological evidence would show innocence and was present, to ask for a test, right? Ms. Camps. I think that under the Hatch bill language, he would be able---- The Chairman. That is right. Senator Leahy. That is not what it says. The Chairman. That is what it says. Senator Leahy. They may not have had DNA testing. They may have retained all the blood samples and everything else, but not had DNA testing at that time. But they now do have DNA testing, and the way your bill is worded, Mr. Chairman, it would not have been available. That is all I am pointing out. Ms. Camps. There is technological availability and there is what is considered legal availability. The Chairman. That is right, absolutely. Senator Leahy. What I am saying is it might not have been able to have been tested at the time, but you still have the samples available and it could be tested now. And what I am saying is why preclude it because it could not have been tested at the time of the trial but now could be tested and might be exculpatory. Why shouldn't it be allowed to be tested? The Chairman. Look, it is the exact language that was in the Illinois statute. In other words, it was not subject to DNA testing requests because the technology for such testing was not available at the time of trial. Now, we have had improved technology. So you are right--there is no question in my mind about that--that my bill will allow DNA testing under those circumstances. I wanted to clarify that for Senator Feinstein becauseshe, I think, was under a misapprehension, and I think you have been very helpful in doing that. Senator Feinstein. So if I understand the position of the California Attorney General, you are saying that the Hatch bill fulfills your concerns that you have with the Leahy bill. Is that correct? Ms. Camps. While we still need to study the Hatch bill in greater depth, it does address the bulk of our concerns regarding the appropriate standard for post-conviction DNA testing by providing access to those who can benefit by it. Senator Feinstein. And how would you feel if a competency standard were added to the bill? Ms. Camps. Essentially, we think that the two issues should remain separate, that the post-conviction DNA testing bill should be separate from the competency. It is a very complex area and to tie those two together probably isn't, in our opinion, the best way to go, whereas tying the whole DNA testing system together with the financial availability for DNA databanks and that type of situation expanding the databank to include more crimes, we think those are more logically connected. Senator Feinstein. Mr. Chairman, if I might ask others a question whether a competency standard should be added to the bill? The Chairman. Sure. Senator Feinstein. That would be a minimum competency standard for death penalty cases. Mr. Spitzer. Let me observe that in New York we have done that. We have created a rather sophisticated system, I think, to determine death penalty competency on the part of counsel, and I think we need that everywhere. I think the two issues can be logically separated. Each addresses a distinct and yet very major problem that we have in our criminal justice system. So one is not logically dependent upon the other. But I think that if we are trying to establish a comprehensive solution, certainly including and defining competency makes sense. I will just add a footnote of concern. I am not convinced that it will be an easy task to define what competency should mean, and I think that that will be a difficult burden, not one that we should not undertake, but it will be difficult. Senator Feinstein. Thank you. Anybody else? Mr. Edmonson. Senator, I have two problems. One, of course, is the State sovereignty issue, which is not my precious sovereignty; it happens to be in the Constitution, for good or ill. And the other is that the committee and the Congress may be making a decision based on representation that was provided in the 1980s resulting in reversals in the 1990s, instead of looking at, at least on a national basis, the competency of counsel that is being provided today. Oklahoma responded to what I think was a broken system and established a capital defense apparatus as part of our indigent defense system a decade ago. They are available in every county of the State of Oklahoma. They are provided the resources for technical investigation, for investigators, for paralegals. That apparatus is in place in Oklahoma. In the 1980s, it wasn't. What we had was a patchwork county by county, with court-appointed counsel. In my county, we had judges that happened to look for the best lawyers to handle capital cases, and as a result of that no death penalty case during my term as district attorney or preceding it out of Muskogee County has been reversed. What we worried about was the lawyer who came in and hired the guy who did his worker's comp case to defend him in a capital case. We had no problems with the attorneys that were appointed by the judge to provide representation. They were high-quality lawyers, and as a result our convictions out of that county have been upheld. But it was a patchwork and it was broken, but it was fixed in Oklahoma. I don't know about the other 49 States. I am hearing about New York right now, and I would certainly ask you to examine what is in place today, not the horror stories of what was in place in the 1980s that resulted in the conviction reversals that were in the Columbia report. Senator Feinstein. Thank you. Anybody else? Mr. Baird. If I might add to that, I think that it needs to be in this legislation--this legislation is moving along the track and it has gotten a lot of favorable comments so far from every Senator. There is a crisis in the State of Texas as far as providing quality representation for people charged with capital crimes, and I will promise you the State of Texas is not going to address that. It is nice that Illinois and California and Oklahoma have, but there are a lot of States out there that have not addressed these concerns. And if this committee does not, they will not be addressed by those individual States. If I might just continue for one moment, we have a case in Texas where the lawyer slept through the trial. The Court of Criminal Appeals where I sat affirmed that case over my dissent. It was later reversed by a Federal judge. It is now before the fifth circuit, and the State of Texas stood up before the fifth circuit and said that was, in fact, competent counsel and that conviction should stand. So we need desperately some Federal standards out there. Senator Feinstein. Thank you very much, judge. I appreciate that. Mr. Marquis. Mr. Marquis. I like the standard we have in Oregon, and I am glad you are U.S. Senator and not me, Senator Feinstein, so I don't have to dictate to the other 49 States what competence standards are. But I share some of these concerns. I think you have a really good concept in the DNA bill of doing something about that, and I am afraid that could get side-tracked. And Judge Baird can correct me if I am wrong, but I believe as a result of, I think, that particular case in Texas, Texas has made some changes already and now I think requires two lawyers in capital cases. Mr. Baird. That is not correct. Mr. Marquis. I stand in error. Senator Feinstein. Thank you very much. Thanks, Mr. Chairman. The Chairman. I am informed that is correct. Are you sure? Mr. Baird. Yes, sir, I am sure. The Chairman. Well, I am informed by our counsel that we have a statute in our office that says it is correct, but we need to find out. It is important, but both of your points are well taken and we just have to pay attention to them and see what we can do to resolve some of these problems. Senator Feingold, we will finish with you and then we are going to go the next panel. STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE STATE OF WISCONSIN Senator Feingold. Well, Mr. Chairman, thank you. I want to thank you for holding this hearing, and I have a more extensive statement that I will submit for the record, but I do want to make a few comments after listening to this excellent hearing for 2 hours and 20 minutes. First of all, on the point that was just being addressed, we have checked the language several times and I simply cannot agree with the chairman's statement that everyone will have access to DNA because there is a separate requirement of a prime facie showing that identity of the defendant was raised at trial. So if that was not raised by an incompetent counsel in some other context, that person, even if this person was entirely innocent, would not have access to DNA. So I think the record needs to be corrected on that. As the chairman indicated, this is a very key point, and I think to some extent the actual language of the bill has not been accurately portrayed here. Another correction. I appreciate Mr. Marquis suggesting that I was a co-sponsor of a bill, but that was the senior Senator from Wisconsin, Senator Kohl. And I am sure it is a fine bill, but it is not the bill I am on, and it is unwise to take credit for something a senior Senator is doing if you are a junior Senator. [Laughter.] But more importantly, it is because I am a strong supporter of the Innocence Protection Act, and that is the only DNA bill that I am on at this time, a bill that among other things ensures post-conviction access to DNA testing. I commend Senator Leahy tremendously for his leadership on this issue, and I am so delighted that Senator Gordon Smith, Senator Susan Collins, Senator Jeffords and others have joined on a bipartisan basis to work with Senator Leahy on this. And I am pleased to hear that the chairman appreciates the significance of DNA testing and has scheduled this hearing today. Mr. Chairman, lack of access to DNA testing is only one of the many flaws in our criminal justice system, particularly with respect to the administration of the death penalty. I am disappointed that today's hearing does not address the remaining very important provisions of the Leahy bill, and that no additional hearings on the Leahy bill or on the broader issue of the fairness and accuracy of the administration of the death penalty have been scheduled. As the chairman knows, I wrote to him in February requesting a comprehensive hearing on the fairness and accuracy concerns with the administration of capital punishment. And I was joined in that request by my colleagues Senators Torricelli, Kennedy, Levin, and Durbin. My colleagues and I who wrote you may disagree on the general moral and practical merits of capital punishment, but we agree that the process by which this ultimate punishment is administered must be one of utmost fairness and justice. We have not yet received a definitive response to that request, and while I am pleased that we have this hearing today, given its limited scope I hope that we will hear shortly a response to the request of many members of this committee. And I can tell the members of the audience here, it is unusual for one panel of a hearing to go on this long. There is tremendous interest in this issue. There is tremendous anxiety on this across the United States of America, and this is not an adequate forum by itself to address this issue. DNA testing, of course, goes to the question of whether innocent people are being wrongly sent to death row. But only 8 of the 87 people who have later been proven innocent after serving time on death row were exonerated based on DNA evidence. The remaining 79 individuals were released based on other problems plaguing the administration of capital punishment in this country. Moreover, the numerous problems, whether they range from inadequate counsel to jailhouse confessions in our Nation's administration of capital punishment, go beyond the problem of innocent people being sentenced to death, as troubling as that is. There are also serious flaws that result in the difference between a death sentence or a sentence that is less than death. Mr. Chairman, I want to shorten my remarks, but I do want to get these other points out because there was a lot of talk about the Liebman study. The Liebman study findings are not only intolerable, they are an embarrassment for a Nation that prides itself on its adherence to the fundamental principles of justice and fairness. And I might add, Mr. Chairman, Professor Liebman's study reviewed cases only from 1973 to 1995, before enactment of the Antiterrorism and Effective Death Penalty Act by Congress in 1996. That is a law that restricted the ability of convicted offenders, especially death row inmates, to appeal their sentences. And I wouldn't be surprised to learn, Mr. Chairman, if, since enactment of the 1996 law, the rate of errors going undetected on appeal is even higher than before. It is also disturbingly clear that sometimes there are errors due to racial bias in the criminal justice system. Last week's Supreme Court decision involving convicted murderer Victor Saldano is a case in point. The Supreme Court vacated the death sentence of Mr. Saldano because it found that a Texas court had improperly allowed apsychologist to testify at the sentencing phase that the race of Mr. Saldano was evidence of his future dangerousness. Contrary to the statements of Governor Bush, I believe that these revelations do not show that the almost conveyor belt of death in Texas is working. When the attorney general of his State admits that racial bias was a factor in sending seven inmates to death row, it is just another sign that the system is not working. A recent expose by the Chicago Tribune also shows that many of those already executed under Governor Bush's watch had much less than the, ``full access to the courts,'' that Governor Bush professes all those executed under his watch have received. Mr. Chairman, the Innocence Protection Act is a good first step in addressing some of the most glaring flaws in our Nation's administration of capital punishment. In addition to providing access to post-conviction DNA testing, the Leahy bill begins to address the egregious problems involving incompetent defense counsel, which Senator Biden so eloquently addressed. I hope my colleagues will join in supporting the Leahy bill. Mr. Chairman, I will conclude by noting that the U.S. Senate can and should go one step further. It has become increasingly disturbingly clear that our Nation's administration of capital punishment has gone amok. Studies like that of Professor Liebman are further proof that our Nation should suspend all executions and undertake a thorough review of the system by which we impose sentences of death. A bill I have introduced, the National Death Penalty Moratorium Act, would do just that. My bill is a common-sense, modest proposal to pause and study the problems plaguing capital punishment. It is very similar, almost identical, to what Governor Ryan did in Illinois, a moratorium combined with a blue ribbon panel of both pro- and anti-death penalty individuals who will review it. Mr. Chairman, do we really believe that we should keep executing people as these problems are raised in such a frightening way? I think the only rational course is to have a brief moratorium. In fact, I think this almost Orwellian notion of comparing the executions to the decision to take an airplane is a suggestion of how far people are willing to go to try to not admit what is staring us right in the face. We have to stop this for a while to make sure that nobody is being executed in error. Indeed, momentum for a nationwide moratorium on executions has been growing for some time, from both death penalty foes and supporters. Reverend Pat Robertson, a death penalty supporter, has endorsed a moratorium. In an editorial on June 6, the Washington Times essentially endorsed a moratorium. And I was delighted with Senator Biden's remarks saying that we need a moratorium, and I think we could easily talk about the specifics of how the moratorium would conclude. That was his concern about the bill. I would very much like to receive his support. Finally, Mr. Chairman, two further clarifications. In your initial remarks, Mr. Chairman, you pointed out a decline in the administration of actual executions between 1997 and 1998. But the chairman did not note what is most significant, which is that last year, 1999, was the all-time record of 98 executions in this country. And if we are not going to reach that high mark this year, I suggest it is not because this system isn't moving as fast as it can. I suggest it is because finally people are beginning to see the problems with it and we are at least beginning to pause in some cases, but not all cases. The other clarification I think is a reference to Mr. Marquis again, who suggested that support for the death penalty has been consistent over many years. That simply isn't the case. As Senator Biden pointed out, support was as high as 80 percent at one point. The polls are showing a decline in support for the death penalty, and it may not be because people don't ultimately, from a majority point of view believe in the death penalty. It is because of these concerns, and that is exactly what the polling indicates. So, Mr. Chairman, I hope this committee will lead the Congress and Nation in reexamining the absurdly faulty system by which we impose sentences of death in our Nation today. We should ensure--indeed, Mr. Chairman, I believe as Members of Congress we have a duty to ensure--that the world's greatest democracy has a system of justice that is beyond reproach. Mr. Chairman, I will just ask one question of Mr. Marquis. You recognize in your testimony that police, prosecutors, judges and juries are not infallible, and you make the claim speaking of successful death penalty appeals that, quote, ``Almost every last one of these cases is not an innocent on death row,'' unquote. I assume that you would not find acceptable a system that executes even one innocent person, or am I misstating your position? Mr. Marquis. No. I think we should strive for a system that never executes an innocent person, Senator. Senator Feingold. Thank you, Mr. Chairman. [The prepared statement of Senator Feingold follows:] Statement of Senator Russell D. Feingold I want to thank you for holding this hearing, which will focus on one of the most striking injustices in our criminal justice system today--lack of access to DNA testing of potentially exculpatory evidence. The American people have become acutely aware of the greater level of certainty that modern technology has brought to our nation's criminal justice system. In a recent poll conducted for The Justice Project, 89 percent of Americans favored requiring courts to give convicted persons on death row the opportunity to have DNA tests conducted in order to prove innocence. DNA testing, or what we've heard referred to as ``the fingerprint of the 21st century,'' is a truly remarkable advance in forensic science. It has led to the literal unlocking of jailhouse doors for dozens of people wrongly accused, some even wrongly sentenced to death. In fact, more than 60 people wrongly accused have been exonerated through the use of DNA testing. According to the Justice Department's National Commission on the Future of DNA Evidence, advances in DNA technology have made DNA evidence a predominant forensic technique. The Commission, in its report released last year, continues: ``The advent of DNA testing raises the question of whether a different balance should be struck regarding the right to postconviction relief. * * * The strong presumption that verdicts are correct, one of the underpinnings of restrictions on postconviction relief, has been weakened by the growing number of convictions that have been vacated because of exclusionary DNA results.'' Mr. Chairman, the power and the promise of DNA technology cannot be underestimated. I look forward to hearing more about this issue from the witnesses today. I am proud to be a cosponsor of the Innocence Protection Act, a bill that, among other things, will ensure post- conviction access to DNA testing. I commend Senator Leahy for his leadership on this issue. The work he has done over the last few months to educate our colleagues and the American people about one of the most egregious flaws in our criminal justice system--the lack of access to DNA testing--has been tremendous and invaluable. I am pleased to hear that you too appreciate the significance of DNA testing and scheduled this hearing today. I hope you will support Senator Leahy's bill, which has bipartisan support. But, lack of access to DNA testing is only one of many flaws in our criminal justice system, particularly with respect to the administration of the death penalty. I am disappointed that today's hearing does not address the remaining, very important provisions of the Leahy bill and that no additional hearings on the Leahy bill or on the broader issue the fairness and accuracy in the administration of the death penalty have been scheduled. DNA testing of course, goes to the question of whether innocent people are being wrongly sent to death row. But there have been scores of other innocent people released based on evidence that has nothing to do with DNA. In fact, only eight of the 87 people who have been later proven innocent after serving time on death row were exonerated based on DNA evidence. The remaining 79 individuals were released based on other problems--problems like incompetent legal counsel, mistaken identifications, recanted witness testimony, or the revelation that the defendant's so-called voluntary confession was, in fact, extracted after police misconduct. Moreover, the numerous problems in our nation's administration of capital punishment goes beyond the problem of innocent people sentenced to death, as troubling as that is. There are also serious flaws that result in the difference between a death sentence or a sentence less than death. A landmark study released just yesterday by habeas expert and Columbia Law Professor James Liebman shows the depth of the problem. That study, entitled ``A Broken System: Error Rates on Capital Cases,'' concludes that our nation's courts found serious, reversible error in nearly 7 out of 10 cases where persons were sentenced to death. Most of these errors resulted from egregiously incompetent defense lawyers who didn't look for--and even missed--important evidence that the defendant was innocent or did not deserve to die; police or prosecutors who discovered important evidence but suppressed it, again keeping it from the jury; or faulty instructions to jurors. Of these nearly 70 percent of cases overturned for error, over 80 percent of the people whose capital judgments were overturned by post- conviction courts were found to deserve a sentence less than death when the errors were cured on retrial. And 7 percent were found to be innocent of the crime all together. Mr. Chairman, these findings are not only intolerable. They're an embarrassment for a nation that prides itself on its adherence to the fundamental principles of justice and fairness. Now, some could argue that this high rate of reversal shows that the system works. I couldn't disagree more. Rather, it shows that our criminal justice system, and particularly the administration of the ultimate punishment, the death penalty, has gone awry. Just ask Anthony Porter. After conviction by an Illinois trial court, Mr. Porter appealed his death sentence. He was days away from execution when actors very much outside the system--journalism students at Northwestern University--convinced a court to stay his execution and later proved that he was the wrong man. And I might add, Professor Liebman's study, as troubling as it is, reviewed cases only from 1973 to 1995, before enactment of the Anti- terrorism and Effective Death Penalty Act by Congress in 1996. That is a law that restricted the ability of convicted offenders, especially death row inmates, to appeal their sentences. Mr. Chairman, I wouldn't be surprised if since enactment of the 1996 law, the rate of errors going undetected on appeal are even higher today than before. As members of Congress, we are responsible for this increased risk that errors won't be detected. But we also have the opportunity toundo the injustice of the 1996 law and restore justice and fairness to our criminal justice system. Mr. Chairman, simply put, our system doesn't work. It is fraught with errors. It is broken. As Professor Liebman's study shows, we have found, and are continuing to find, that these high rates of error are very often due to woefully incompetent defense counsel. Lawyers who sleep through trial. Lawyers who are drunk. Lawyers who are suspended or disbarred. Lawyers whose first trial is a trial where a man's life is on the line. The result is a lawyer who fails to find or introduce evidence that can prove the innocence of the defendant or mitigate his punishment from death to something less than death. The Leahy bill begins to address these egregious problems involving incompetent defense counsel. The bill would require states to implement a system of appointing competent counsel to indigent defendants and providing adequate compensation to such counsel An article published this past Sunday in the Chicago Tribune illustrates the extent of the problem of incompetent defense counsel and other problems in one of the 38 states that authorize the use of the death penalty. That article reviewed the cases of the 131 inmates on Texas death row who have been executed under Governor George Bush. As you know, Governor Bush has the dubious distinction of being the governor who has presided over the most executions since the reinstatement of the modern death penalty in 1976. The Chicago Tribune found that of these 131 cases, 40 involved trials where the defense attorneys presented no evidence or only one witness during the sentencing phase: 29 cases included a psychiatrist who gave testimony that the American Psychiatric Association condemned as unethical and untrustworthy; 43 included defense attorneys publicly sanctioned for misconduct--either before or after their work on capital cases; 23 included jailhouse informants, considered to be among the least credible of witnesses; and 23 included visual hair analysis, which has proved unreliable. It is also disturbingly clear that sometimes errors are due to racial bias in the criminal justice system. Last week's Supreme Court decision involving convicted murderer Victor Saldano is a case in point. The Supreme Court vacated the death sentence of Mr. Saldano because it found that a Texas court had improperly allowed a psychologist to testify at the sentencing phase that the race of Mr. Saldano was evidence of his future dangerousness. The State of Texas had introduced this testimony to support its argument that Mr. Saldano should receive the death penalty, since in Texas a jury must consider whether a defendant could be ``a continuing threat to society'' when deciding the death penalty. And last Friday, the Attorney General of Texas acknowledged that this same psychologist had provided similarly racially charged expert testimony in six other cases of inmates now on death row. The Attorney General informed defense counsel for those six inmates that the State of Texas would not object if they seek to overturn their clients' death sentences based on the psychologist's improper testimony. This action by the Texas Attorney General is the fair, just and right thing to do. I believe his action was based on fairness and justice, principles which I hope will continue to guide his judgment after his governor's presidential election race ends. Contrary to the statements of Governor Bush, I also believe that these revelations of errors and bias do not show the conveyor belt of death in Texas is working. When the Attorney General of his state admits that racial bias was a factor in sending seven inmates to death row, it is just another sign that the system is not working. The expose by the Chicago Tribune also shows that many of those already executed under Governor Bush's watch had much less than the ``full access to the courts'' that Governor Bush professes all those executed under his watch have received. Mr. Chairman, questions of fairness and justice go beyond whether someone is guilty and include whether a defendant should be subject to a death sentence or a sentence less than death. The Innocence Protection Act is a good first step in addressing some of the most egregious flaws in our nation's administration of capital punishment. I hope my colleagues will join together in supporting this bill. Mr. Chairman, I also want to emphasize that I hope this is not the last hearing in this Committee on the problems plaguing capital punishment. As you know, I wrote you in February requesting a comprehensive hearing on the fairness and accuracy concerns with the administration of capital punishment. I was joined in that request by my colleagues, Senators Torricelli, Kennedy, Levin and Durbin. My colleagues and I who wrote you may disagree on the general moral and practical merits of capital punishment but we agree that the process by which this ultimate punishment is administered must be one of utmost fairness and justice. My colleagues and I have not yet received a response to that request. While I am pleased that you called this hearing, given its limited scope, I do not consider it a satisfactory response to this request. The execution of the first federal death row inmate in almost 40 years is now less than two months away. Before our federal government takes this action in the name of the American people, I urge my colleagues to consider the wisdom of this action. I believe that in light of the continuing revelations of serious, disturbing flaws in our administration of capital punishment and the imminent execution of a federal death row inmate, it is absolutely imperative that this Committee undertake a thorough review of all the problems plaguing the administration of capital punishment at the state and federal levels-- beyond the very important issue addressed today, access to DNA testing. But, Mr. Chairman, I conclude by noting that the U.S. Senate can and should go even one step further. It has become increasingly, disturbingly clear that our nation's administration of capital punishment has gone amok. Studies like that of Professor Liebman are further proof that our nation should suspend all executions and undertake a thorough review of the system by which we impose sentences of death. A bill I have introduced, the National Death Penalty Moratorium Act, would do just that. Our nation's administration of capital punishment has reached a crisis stage. My bill is a common sense, modest proposal to pause and study the problems plaguing capital punishment. Indeed, momentum for a nationwide moratorium on executions has been growing for some time, from both death penalty foes and supporters. Reverend Pat Robertson, a death penalty supporter, has endorsed a moratorium. The American Bar Association has called for a moratorium. And in an editorial on June 6, the Washington Times essentially endorsed a moratorium. I urge my colleagues to join me and Senators Levin and Wellstone in supporting my bill. It's the fair, just and right thing to do. I hope this Committee will lead the Congress and the nation in re-examining the absurdly faulty system by which we impose sentences of death in our nation today. We should ensure--indeed, Mr. Chairman, I believe, as members of Congress who have sworn to uphold the Constitution, we have a duty to ensure--that the world's greatest democracy has a system of justice that is beyond reproach. The Chairman. Thank you. Now, Mr. Baird, I do want to clarify this because counsel has pointed out to me that under the Texas Code of Criminal Procedure, Chapter 2605-2, the Appointment of Counsel in Death Penalty Cases, Reimbursement of Investigative Expenses, et cetera, subparagraph (e) says this: ``The presiding judge of the district court in which a capital felony case is filed shall appoint counsel to represent an indigent defendant as soon as practicable after charges are filed. If the death penalty is sought in the case, the judge shall appoint lead trial counsel from the list of attorneys qualified for appointment. The judge shall appoint a second counsel to assist in the defense of the defendant unless reasons against the appointment of the two counsel are stated in the record.'' Senator Leahy. It is not automatic. The Chairman. It may not be, but there would have to be reasons not to. I think Mr. Marquis is right on that issue, according to the Texas Code. Mr. Baird. May I just add one thing to that, Senator? The Chairman. Sure. Mr. Baird. Certainly, there is no qualification or no requirement that there be two lawyers appointed on the appeal, and there has never been two lawyers appointed to assist in post-conviction capital cases. The Chairman. Well, we are talking about the trial, which is what I asked you about before, and which Mr. Marquis said you have the right to two attorneys down there. Senator Leahy. No, it is not a right. The Chairman. You have a right, subject to some reason not to do it, but you certainly have an instant right. That is what that statute says. Senator Schumer. STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK Senator Schumer. Well, thank you, Mr. Chairman. First, let me thank you for holding this hearing, and Senator Leahy for his outstanding work in this area, as well as the witnesses. I want to particularly welcome the outstanding Attorney General from my State, Eliot Spitzer, for being here, who is doing a great job and making it a people's office. I apologize to all the witnesses. We have a Banking Committee hearing and I have been trying to go back and forth, but I ended up spending most of my time there. Mr. Chairman, I guess my view is somewhat different than any of the views stated here. I think DNA testing is great because I think it brings out truth. I think those on one side of the issue or on the other side of the issue of capital punishment are taking what is basically a neutral but far more effective method of proving the truth and saying it buttresses their cause. I think it is fabulous and I think it is appropriate that innocent people, whether it be for capital crimes or other crimes, will be exonerated and in the first instance not proven guilty by mistake because of DNA. I think it is also very estimable that guilty people will be proven guilty. I think both sides of this issue are important issues. To be against DNA testing is sort of to be Luddite. It is to take one of the newest advances in criminal justice and say we shouldn't use it. But I think those on either side who use it as proof that we ought to have more punishment or less punishment are mixing apples and oranges. I tend to be someone who has believed in the last 20 years that societal rights were sacrificed for individual rights in the criminal justice system, and I saw in my communities in the mid-1980's a system that had run amok where people were not punished for crimes that they were convicted of. That is a value choice each of us has to make. It is not an easy choice. DNA testing, once you make that value choice, allows things to happen in a more consistent, in a more truthful way. So, to me, it is neutral even though it evokes great passions, neutral in terms of one's value judgment of where you come out in the criminal justice system. Certainly, in capital crimes we ought to be very careful. I have supported all sorts of changes in the law to make sure people get counsel, even though I support capital punishment in certain instances and believe that it is an appropriate punishment. I agree with much of Senator Leahy's bill, although I must say there is a provision in it right now that would prevent me from supporting it, the provision that says that if you commit under Federal law a capital crime in a State that doesn't have capital punishment, the Federal law would not apply. That is not, to me, what our---- Senator Leahy. With a number of exceptions. Senator Schumer. With a number of exceptions, but I disagree with the concept. I don't think I would want to see that law applied for gun crimes, Federal gun crimes. I don't think I would want to see that law on anything. We are making a Federal judgment here, and I don't think the State law should be part of it. And I would urge the Senator--I have talked to him privately a little--to take that out of his bill and it might make it a little more palatable to some of us in this area. And then I would just like to make one other point before I ask a question. In terms of having DNA be a useful tool on both sides of the issue in terms of finding truth, we need real help in our State of New York to help convict people who have raped women and have not been brought to justice. We have 15,000 rape kits in New York State sitting in refrigerated warehouses awaiting DNA testing and possible matching to people with profiles already in State or Federal databases. Nationwide, the Department of Justice estimates there are 180,000 rape kits that require an analysis. A recent survey by the Police Executive Research Forum found that in some instances police don't even bother to submit rape kits to crime labs because they are convinced that the kits will never be tested. It is expensive. I guess it is about $2,000 for each test. So we need to do a much better job of using DNA to exonerate the innocent and not convict the innocent, but also to catch criminals. And to start, I am proposing legislation that will help States reduce their backlog of unsolved crime evidence particularly in the area of rape by providing $100 million in Federal grant funding over 4 years. That funding will go to States to use at labs to screen for quality assurance to reduce backlogs in unsolved crime evidence that needs to be DNA-tested. Senator Biden. What is the cost of the bill, Senator? Senator Schumer. About $100 million. Senator Biden. Sign me up. The Chairman. Is that for the rape---- Senator Schumer. Rape kits, yes. The Chairman. Well, I am willing to work with you on that, too, because my bill provides $60 million to reduce these State DNA backlogs. Senator Schumer. Good. Senator Leahy. Can you get our bullet-proof vest bill out while we are spending this money to protect the police officers? The Chairman. We are going to get that out. Don't worry about that. Senator Schumer. In any case, I am glad to have support for this idea. The Chairman. It is a good idea. Senator Schumer. If you spend $100 million over 4 years, it would eliminate the national backlog by about 2004. And I would hope this legislation could complement the DeWine-Kohl bill which eliminates the backlog of convicted offender DNA samples, something I also support. Together, these bills will dramatically enhance the administration of justice by ensuring that DNA testing occurs as widely as possible on the State and Federal levels. And so in sum, Mr. Chairman, we owe it to both the victims of crime and potentially innocent people who are incarcerated or could be incarcerated to expand our use of DNA. We owe it to our society to bring a fairer system about, and I hope that we will move forward in making that happen. My question, Mr. Chairman, is this. I would first ask the panel what they think of the proposal that I have made, and I would welcome general comments on my general comments. I would first give the courtesy to my friend and colleague from New York Mr. Spitzer. Mr. Spitzer. Thank you, Mr. Schumer, soon to be senior Senator Schumer. It is a pleasure to be here, and I agree with---- Senator Schumer. I want to tell you a story about that, if I might interrupt. Mr. Spitzer. That was not my total answer. Senator Schumer. The first day I got to the Senate, the first person I met waiting at the door was Senator Hollings. And he came over to me and said, well, you are something. And I said, well, thank you, Senator. And he said, I hear you are going to be the senior Senator in two years. I said, yes, sir. He said, I have been here 37 years and I am still the junior Senator. He has Strom Thurmond, as you know. Mr. Spitzer. I am the senior Attorney General from New York State. Senator Schumer. And the junior. Mr. Spitzer. And the junior, that is correct. Let me make several observations about your points. First, with respect to funding to overcome the backlog of DNA testing, it is absolutely critical and it is a problem that we are confronting across the United States. In New York, in particular, we are expanding the DNA database because it is such a powerful, and as you observe, a neutral tool. It exonerates and it finds individuals guilty. We are expanding the database, we are making it more applicable. We are expanding the universe of crimes where we seek to use DNA. It is absolutely critical, and so any additional funding we can get from any source will be not only of use, but is necessary to permit us to turn it into the tool that we should make it. With respect to the federalism point that you alluded to in terms of not creating an exception based upon State law where we are striving for a national standard, I agree with you there as well. And I will freely admit that when I was elected attorney general, I had something of an epiphany about federalism. I suddenly became a bit more protective of States' rights. Having said that, I think this is an area where we need uniformity, we need national standards, and everything we can do to determine what that national standard should be and then apply it across all 50 States is commendable and important. Senator Schumer. One other question for you, Mr. Spitzer. New York offers DNA tests to convicted offenders when there is a reasonable probability that the test would result in a verdict more favorable to the defendant. Mr. Spitzer. Yes, sir. Senator Schumer. That is really not a neutral--I mean, obviously, a convicted offender isn't going to want to test if he thinks he is going to make the case of the prosecutor better. But why aren't we offering DNA tests in any situation where it might bring about greater knowledge, greater justice, whether it is more favorable to the defendant or more favorable to the prosecution? I didn't understand why New York took what you say, and I couldn't agree with you more, is a neutral truth serum almost and then just used it in one direction but not the other. Mr. Spitzer. I think your point is well taken, but I would distinguish between access to DNA testing pre-conviction at the initial trial phase where, yes, it is neutral and it should be as widely available as is physically possible, versus access on subsequent review where we are already post-trial, post- conviction. I think much of the discussion today has focused on what threshold should be. We do not want to revisit and relitigate every case from ground zero, but then say there should be some affirmative reason to reopen, in essence, a factual inquiry that has been already concluded. So I woulddifferentiate between the appellate standard for access to a DNA test where some sort of showing might be necessary and an initial inquiry at a trial phase, where I agree with you entirely everybody should have access. Senator Schumer. DNA testing is going to bring about certain situations where somebody has been declared innocent and then the evidence is going to point to the fact that they did the crime. Mr. Spitzer. Absolutely. Senator Schumer. And, of course, we have our constitutional standards, but it is also going to have its effect in that direction as well. Any other comments? Mr. Marquis. Senator, I think it is an excellent idea. In my testimony, I pointed out the backlog there is. I think anything that would help DNA--the only concern I have, to answer your last point, is someone who has been declared innocent can never be retried. Senator Schumer. Correct. I just think those who think DNA is sort of not a neutral type, but rather it is being used by many--and I respect the views of my colleague from Wisconsin, who is morally opposed to capital punishment. I am not. This is a neutral tool and it is going to show that mistakes were made in both directions. Now, in a capital case, obviously you want to err on the side of caution, but it is going to show that mistakes were made on both sides of the ledger in all sorts of crimes. Thank you, Mr. Chairman. Senator Leahy [ presiding]. You are up next. You haven't asked any questions. STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE OF ALABAMA Senator Sessions. Thank you, Senator Leahy. I appreciate the opportunity to participate in this, and I think Senator Smith earlier said we want to make a good system better. There is no reason that this committee shouldn't be always alert to whatever we can do to make the system better, and if there is some possibility that some cases may not be getting appropriate review of DNA evidence because they can't prove that DNA evidence was exculpatory, per se, and just can't meet the burden of proof, may be we can help eliminate that problem. I am supportive of efforts that would do so. I did spend 15 years, really 17 years as a prosecutor, and I do believe that the purpose of our system is to achieve justice. I used to tell my assistants that they should never prosecute a case if they didn't believe the defendant was guilty, and if they didn't believe a defendant was guilty, to come and see me immediately. I might not agree with them, but if I did, we would stop that case. There are plenty of guilty people that need to be prosecuted. Heaven knows, we don't need to prosecute innocent people. But I would say that this concept of using DNA is consistent with my philosophy of justice, which is to get the truth. I have often opposed many of the procedural rules that have favored defendants at the expense of truth. For example, broad interpretations of the exclusionary rule in Mapp v. Ohio have caused real critical evidence seized by police to be omitted for trial for technical violations when actually guilty defendants are released. Miranda v. Arizona has also caused some people who have confessed and are clearly guilty to have those confessions suppressed even though they were not threatened or coerced into giving those confessions. We do have a new technology now that will help us in criminal justice. Since it has been developed forward, I don't believe our criminal justice experts would dispute it is working fairly well today. I mean, routinely, if a defendant is arrested today for serious violent crime and asks for a DNA test, isn't it true that virtually universally that test can be obtained if they request it and they have some basis for it being relevant? Is that correct? Mr. Marquis. Yes, Senator. Senator Sessions. So what we are dealing with now is what happened in the early days either before DNA was available or when people didn't know to ask for it. Isn't it true that in a serious case a defendant can get an independent DNA expert in most States to validate the finding of the State's expert analysis? Do you know that? Mr. Marquis. In my State, they can. Senator Sessions. They can? Mr. Marquis. Yes. Mr. Edmondson. That is true in Oklahoma at either the trial stage or the appellate stage. Senator Sessions. Good to see you, General Edmondson. I enjoyed serving with you as attorney general, and thank you for your wise comments earlier today. Well, I have had my staff review ``Actual Innocence'', and I think it does raise some questions along the lines that I have just discussed. Senator Leahy, I am interested in seeing what we can do to improve this system in any way we can. I will put my remarks in the record, but with regard to the fundamental state of the criminal justice system, Ms. Camps, you are dealing with it, and I know Mr. Edmondson is. Do you think the criminal justice system is in crisis today and that there is something peculiarly dangerous about our current climate of death penalty cases? Ms. Camps. That is a very complex question. I actually think that to the extent that we are considering DNA evidence to resolve questions of actual innocence, it is exceptionally important in all of our cases, and that includes our capital cases. To the extent that we are going to make contingent large changes in the criminal justice system on the availability of DNA testing, we should be awfully concerned about what the standards are going to be for that testing. We also think it is most appropriate to keep those issues separate, to keep the post-conviction DNA testing issue separate from the competency of counsel issues in revamping our whole approach to death penalty administration. Senator Sessions. I certainly think that is true. Attorney General Edmondson, do you think that our criminal justice system is sinking and it is in a crisis and is less just today than it was, say, 10 years ago, or how do you see it? Mr. Edmondson. I do not have that feeling. I believe that the results that were shown in the Columbia study--I think the comment was made earlier that when cases are reversed on appeal, it is the courts giving the States guidance on how to do it right, and it has resulted in changes. I see that as a positive thing rather than a negative thing. I think it is an indication that the system is working, not that the system is broken. In the wake of those reversals, as I mentioned, Oklahoma adopted a capital defense team that is fully funded. In the wake of Eke v. Oklahoma, Oklahoma began funding expert witnesses for the defense. We went beyond the requirements of Brady because some prosecutors were---- Senator Sessions. Brady is the requirement of a prosecutor to produce exculpatory evidence. Mr. Edmondson. Exculpatory evidence, because prosecutors were having to decide what they thought was exculpatory and what they didn't, and that was being reviewed and second- guessed by judges. So we adopted a criminal discovery code in the State of Oklahoma. Senator Sessions. It went further than the constitutional requirement of Brady? Mr. Edmondson. Even further, but all of those were things that happened as a result of cases being reversed and guidance from the courts on how to do it properly. I don't think we are in crisis today. I think we are doing a good job. We are funding the defense, and for the first time we have the ability to see the end of the appeals process and that is what I am concerned might be disturbed. Senator Sessions. Along that line, I had a capital litigation section in my office and there were two death penalty cases carried out in my two years as attorney general. It is a very serious matter. But from what I learned about the State court systems--and 99 percent of these cases are in State courts--prosecutors at the county and circuit levels have really learned and gotten better. The courts have gotten better. And many of the objections that occurred right after 1976 when we got back into the death penalty prosecutions have been settled, and prosecutors are adhering to those rules far more completely, and judges too, than in the past. Would any of you disagree with that? Mr. Spitzer. I do not want to jump to that conclusion. I am not sure it is the relevant question, quite frankly, because I think your question doesn't probe in the right area. ``Are we in crisis'' is not the threshold that seems to be relevant here. We may not be in crisis, but that does not mean that there is not both a legal and perhaps even a moral obligation to improve upon what we have. And I think for the reasons that have been stated so eloquently by some other Senators, how you define crisis, I do not know. But I will say that the studies that are done and the stories that continue to emerge do not reflect to me a status quo that should leave any one of us comfortable, and I think quite the opposite. And I think given the advent of new technology, to say that there is not crisis and therefore we need not address this problem, is to pursue a form of logic that I think is dead wrong. Senator Sessions. Well, I didn't say that. I said in the beginning we needed to do something. Mr. Spitzer. Well, in which case I wonder what the relevance of the word ``crisis'' is. Senator Sessions. I would just say I think it is indisputable that we are doing better in handling important criminal cases in America today than we were 20 years ago, and we can continue to get better and I really support that idea. A lot of people are bandying about that we are in a crisis, which I haven't seen in my own experience. Mr. Chairman, I am sorry to go over. The Chairman. Thank you, Senator. I want to thank this panel. It has taken us much longer than I thought it would to go through it, but each of you has contributed, I think, greatly to this. So I am very grateful to you. Did you want to make a comment? Senator Leahy. Just this, Mr. Chairman. The panel has taken a long time, but I think that underscores the importance of this issue. The Chairman. I agree. Senator Leahy. A couple of things we should keep in mind. In looking for competent counsel and looking for the availability of all the evidence, it cuts both ways. It doesn't just acquit the innocent, but it makes sure the guilty are convicted. I can't think of anything worse than to convict somebody innocent of a heinous crime, have him in jail for years, and find during that time that the person who committed the heinous crime is out there in all likelihood committing more crimes. I also can't think of anything worse from a prosecutor's point of view than to have a case, because of incompetent counsel or whatever, remanded for a new trial five or 6 years later because you can't try it, in all likelihood. Half the witnesses are gone, the evidence is gone. You are probably going to have to seek a plea bargain of some sort, and so that creates a problem. Ms. Camps, I would point out, because there may be some who may have misunderstood your earlier testimony--I don't think you intended to misstate my proposal, but my proposal is very clear that the court in ordering DNA testing has to determine that testing would produce non-cumulative exculpatory evidence relevant to the claim of the applicant that the applicant was wrongfully convicted or sentenced, which would be, I believe, substantially more than the impression that may have been left of what is required. But all of us should agree that something is going wrong here, and all of us would agree with Senator Sessions that if you have a good prosecutor, the last thing in the world he or she wants is to convict somebody who is innocent, because if we do maintain the credibility of the criminal justice system, in most cases the prosecutor comes in with the advantage into a court and most juries tend to side with the prosecutor right off the get-go. The Chairman. Ms. Camps, you look like you wanted to make a comment. Ms. Camps. With respect to the Leahy standard---- Senator Leahy. Give Senator Smith credit, too, on this bill. You keep leaving him out. Senator Biden. Especially when you are criticizing it. [Laughter.] The Chairman. There is nothing like fairness on this committee, is all I can say. Senator Leahy. I don't want you to think only Democrats can think like this. I want you to understand that some Republicans like this legislation, too. Go ahead, Ms. Camps. Ms. Camps. Obviously, we think that the accessibility to post-conviction testing is very important. But, of course, we are concerned about the standard. That standard that it may produce relevant evidence is very different from presenting a prime facie case that identity is at issue and that it is material to an actual assertion of innocence, because materiality is a key word that we don't see in your proposal and we think that it is limited in terms of its probity to the actual trial evidence. So if you have a case where identity is not at issue, where the issue in a rape case is consent and not identity, that DNA evidence is not going to show anything that is of significant value to that case. And so we want to limit it to those cases where it is truly useful and it can actually undermine the confidence in the outcome of the verdict. Senator Leahy. But you are not saying they have got to prove their innocence before they can ask for this evidence? Ms. Camps. No, but there has to be--the words from New York are ``reasonable probability.'' There are standards for that. But ``may produce,'' we find, is too low a threshold. The Chairman. Well, we want to thank you all for being here. I would like to just recess for two minutes. I want to chat with a couple of you, and then we will call the second panel. Thank you. [The committee stood in recess from 12:57 p.m. to 1:03 p.m.] The Chairman. I would like to call forward our second panel and have them take their seats at the table. Now, I am limited in time. In fact, I have to leave here by 1:45, and I doubt that we will be finished by then, but I have got to leave. So, Senator Sessions, could I ask you to continue for me? I have a doctor's appointment, so I have to leave at 1:45. Senator Sessions. I am at your disposal. The Chairman. Thank you. You are great. Senator Leahy. Aren't we all? Aren't we all? The Chairman. I just wish that were true. Senator Sessions. I have been disposed of several times. The Chairman. Our first witness is Barry Scheck, who is a professor at Benjamin N. Cardozo School of Law, and the co- founder of the Innocence Project. Mr. Scheck is also a member of the National Commission on the Future of DNA Evidence, and person I have a lot of respect for. We may differ on whether or not there should be a death penalty, but I have a great deal of respect for your knowledge and your ability. Mr. Scheck. Thank you. The Chairman. Our second witness is George Clarke, whom I also have a lot of respect for, Deputy District Attorney for the County of San Diego, and a member of the National Commission on the Future of DNA Evidence. We are honored to have you here. Our next witness is Bryan Stevenson, the Executive Director of the Equal Justice Initiative of Alabama, and Assistant Professor of Law at New York University School of Law. And this isn't your first time here. We are glad to have you here, too, and we will look forward to your testimony. Mr. Stevenson. Thank you, Mr. Chairman. The Chairman. We would also like to welcome Dennis Fritz, a former inmate who was released based on post-conviction DNA evidence. I think your testimony is very critical to this hearing today, so we are honored---- Senator Leahy. He is also a former high school science teacher, too. The Chairman. Well, we are glad to have you here and we are sorry about what you went through. Finally, we welcome James Wooley, a white-collar defense lawyer and member of the National Commission on the Future of DNA Evidence. We have great respect for you, Mr. Wooley, as well. We will begin with Mr. Scheck. If you could limit yourselves to five minutes, it really helps me to hear all of you. I may not be able to be here for all the questions, but it would be very helpful to me. So, Mr. Scheck, we will turn to you, and once again we are glad to have you here. PANEL CONSISTING OF BARRY C. SCHECK, PROFESSOR OF LAW, AND CO- DIRECTOR, INNOCENCE PROJECT, BENJAMIN N. CARDOZO SCHOOL OF LAW, AND MEMBER, NATIONAL COMMISSION ON THE FUTURE OF DNA EVIDENCE, NEW YORK, NY; GEORGE CLARKE, DEPUTY DISTRICT ATTORNEY, SAN DIEGO COUNTY, CA, AND MEMBER, NATIONAL COMMISSION ON THE FUTURE OF DNA EVIDENCE, SAN DIEGO, CA; BRYAN A. STEVENSON, DIRECTOR, EQUAL JUSTICE INITIATIVE OF ALABAMA, AND ASSISTANT PROFESSOR, NEW YORK UNIVERSITY SCHOOL OF LAW, MONTGOMERY, AL; DENNIS FRITZ, KANSAS CITY, MO; AND JAMES WOOLEY, BAKER AND HOSTETLER, AND MEMBER, NATIONAL COMMISSION ON THE FUTURE OF DNA EVIDENCE, WASHINGTON, DC STATEMENT OF BARRY C. SCHECK Mr. Scheck. Thank you, Senator Hatch. There is one other qualification I should state that I think may help the committee with my testimony, and that is I am a Commissioner of Forensic Science in the State of New York, which means we have a commission that regulates our crime labs and helps set up our DNA databank. And working with Howard Safir, whom I sue a lot of times in civil rights actions, the Mayor of the City of New York, and Governor Pataki, we have worked hand in hand in cleaning up the DNA backlog. I am the one that told them to test those 15,000 untyped rape kits in theCity of New York, and so I think I have a good handle on the cost issue which seems to be of concern in light of Ms. Camps' testimony. First, let me say, Senator Hatch, there have been at least 73 post-conviction DNA exonerations in North America, 67 in the United States, 6 in Canada. Our Innocence Project has either assisted or been the attorney of record in 39 of these cases, including the 8 people that were sentenced to death. In 16 of these 73 cases, the DNA testing has not only remedied the miscarriage of justice, but has led to the identification of the real perpetrator, just as it did in the case of Dennis Fritz. With the expedited, expanded use of DNA databanks and with the continued technological advances in DNA testing, not only will post-conviction DNA testing continue exonerating people, but it also is going to increase the number of times that we are able to identify the real perpetrator. There is an urgent need for national legislation to assist in what is actually a narrow but important group of people, those who have been sentenced to decades in prison or sit on death row, but could show through post-conviction DNA testing that they were wrongly convicted or sentenced. I am profoundly indebted to you, Senator Hatch, for taking up this cause and holding these hearings. And, of course, I cannot thank enough Senator Leahy, Senator Feingold, and Senator Smith for cosponsoring the Innocence Protection Act. Let me just hit a few key points in considering this historic legislation. First, very quickly, we can't limit this just to capital life sentence cases. Neither bill does, but the reason I raise it is that when you look at some of the post- conviction DNA statutes that are passing, particularly in the State of Washington and the State of Tennessee, they only limit it to capital cases or life sentence cases. What about all the other people like Dennis Fritz who were in jail for decades who could prove their innocence with a DNA test? The issue is statute of limitations. In the report that Woody Clarke and Jim Wooley and I served on, Recommendations for Handling Post-Conviction DNA Applications, which comes out of our Commission on the Future of DNA Evidence, a commission that was made up primarily of law enforcement people, police chiefs, crime lab directors, prosecutors such as my colleagues, we came to the considered judgment that in terms of seeking a post-conviction DNA application, there should be no statute of limitations. By that, I simply mean that if a DNA could show a reasonable probability that you were wrongfully convicted or sentenced, then you should have a chance. And the reason that is so important is that we are looking at cases that are 10, 15, 20 years old. By the time, whatever standards you choose, an inmate is able to find the transcripts, find the lab reports, find the police reports and make the necessary showing that a favorable DNA test would show a reasonable probability of wrongful conviction or sentence, it takes a number of years, particularly in jurisdictions where there are no counsel, certainly not in post-conviction, that can handle this. It was true in just about every one of these cases where people were exonerated. The other point I should jump to right away--and on this statute of limitations point, just look at all the people. I mean, we had just since our book ``Actual Innocence'' was published, Clyde Charles, in Louisiana, 19 years in jail in the infamous ``Farm'' in Angola Prison. He spent nine years trying to get the DNA tests. Another inmate that greatly concerns me is a man named Archie Williams, in Baton Rouge, Louisiana. He really gets to the point. He has been convicted in a case where it was one perpetrator, a single eyewitness. The prosecution took the position at the time of trial that the blood type from the semen matched Mr. Williams. He is asking for a DNA test. The Louisiana courts won't let him have that test. We have been pushing for it for years. We are now in Federal court. The rationale they came up with--and this is why I think the actual innocence standard, Senator Hatch, is too high. The rationale that the Louisiana courts came up with, and it has happened in case after case, is they suddenly said, well, I don't care if the prosecution's theory at the trial is that he was the semen donor; it is possible that there was another consensual donor; maybe the husband of the victim had sex with her. Well, that is something we can test with elimination samples, and we have done it in case after case. Yet, the courts have denied him access, even though it is perfectly appropriate. If you watch tonight, ``The Case for Innocence,'' a ``Frontline'' special produced by Ofra Bickel that is going to show you the case of Roy Criner---- The Chairman. What time is that on? Do you know? Mr. Scheck. I don't know when PBS is running it, but it is---- The Chairman. It is ``Frontline?'' Mr. Scheck. Yes, and I will send a copy of the tape, sir, because it will show the Criner case. The Chairman. Well, I would like to have it. Mr. Scheck. When you see the reasoning of the courts there, it is going to trouble you. The Chairman. It troubles me now. Mr. Scheck. So I think ``actual innocence'' is too high. We have so many people who have spent so many years knocking on the doors, unable to get the DNA tests because of the statute of limitations. And I know, given the tenor of these hearings, something is going to be done about it. Now, let me get to the cost point about preserving the biological evidence and why actually the proposal in the Leahy bill is going to help. As Jim Wooley and Woody Clarke certainly will tell you, we had the people on our DNA commission from the Los Angeles Police Department crime lab come to us and make a presentation that they have all this evidence and they are afraid to get rid of it. I can tell you, because we are the ones in the trenches litigating these cases, the rules on preservation of evidence across the States is totally haphazard. It doesn't even matter what the rules are. It is totally fortuitous whether they save the samples or not. But if we say, if you are in jail and biological evidence could be determinative, it should be preserved, unless the State comes in and gives you notice of 90 days and says, we are going to destroy it. That is going to help, and it is going to help remember, because every time an innocent person is put in jail, the real perpetrator is out there committing more crimes, and that is how DNA testingand DNA databanking can help us. So with these old cases, it is a net plus to law enforcement that they have to inventory in a sensible way the old, unsolved cases. There is no bigger supporter than I am of testing these old, unsolved cases. I have a problem, Senator, just in the language. I hear from the tenor of your remarks that you wouldn't intend it to be a bar, but when we talk about the evidence was not subject to DNA testing requested because the technology was not available at the time of the trial, taken literally, almost every person exonerated with a DNA test would be excluded if it was taken literally, because since 1988, as Dennis will tell you, there was some form of DNA testing that was, in theory, out there. The compromise that our DNA commission and the Leahy bill says is that if a more accurate DNA test could show you innocent, then you have shot at it because there have been some improvements in the technology. The Chairman. I am for that, so there is no problem. Mr. Scheck. OK. The Chairman. We will resolve that one way or the other. I think ours does. Ours is the exact language of the Illinois statute. Mr. Scheck. Right. The Chairman. And we thought we had solved the problem. I think we have, but we will look at that. You are making a good point there, as far as I am concerned. Mr. Scheck. The final point I just want to make, as I see my time is up, is that this is going to be a narrow number of cases really in the final analysis. Seventy-five percent of the time in these innocence cases, the evidence is lost or destroyed and we can't get the test, even if it could be dispositive on the issue of guilt or innocence. If we pass the Leahy bill, just with that standard today, I don't think nationwide ultimately by the time we find the evidence there would be a hundred cases. But these cases are of such critical importance to learning something about the criminal justice system. In our book ``Actual Innocence,'' we go through what DNA testing shows us in these post-conviction situations, what we can learn about mistaken identification, false confessions, jailhouse informants, bad lawyers, prosecutorial and police misconduct--all the causes of the conviction of the innocent. And we propose mainstream proposals that Republicans and Democrats, liberals and conservatives, prosecutors and defense lawyers, can all get behind because they not only prevent the conviction of the innocent, but they lead to the identification of the guilty before they commit more crimes. That is what this is about and that is what we lay out here. And, Senator, I am so happy that you have presented this. It is a race against time. We are in a race against time as they go through bureaucratically destroying the biological evidence that are the keys to the freedom of people. We can learn so much to fix this system and change it. I agree with Senator Schumer's remarks that this is neutral. Draw what conclusions you may want about the death penalty, but the need for this kind of innocence protection legislation and the need for more standards and more money for counsel. I can't emphasize enough how important that is. Thank you, sir. The Chairman. I want an autographed copy of that book, okay? Mr. Scheck. Well, I should say that I brought a whole series and they are all available for each Senator here. Senator Sessions. How much is it, Mr. Scheck? [Laughter.] The Chairman. I will put it in my autographed book section after reading it. [The prepared statement of Mr. Scheck follows:] Prepared Statement of Prof. Barry C. Scheck There have been at least 73 post-conviction DNA exonerations in North America; 67 in the United States, and 6 in Canada. Our Innocence Project at the Benjamin N. Cardozo School of Law has either assisted or been the attorney of record in 39 of those cases, including 8 individuals who served time on death row. In 16 of these 73 post- conviction exonerations, DNA testing has not only remedied a terrible miscarriage of justice, but led to the identification of the real perpetrator. With the expanded use of DNA databanks and the continued technological advances in DNA testing, not only will post-conviction DNA exonerations increase, but the rate at which the real perpetrators are apprehended will grow as well. There is an urgent need for national legislation to assist a narrow but important group of people: Those who are sentenced to decades in prison, or sit on death row, but could show through post-conviction DNA testing that they were wrongly convicted or sentenced. I am profoundly indebted to you, Senator Hatch, for taking up this cause and holding these hearings; and, of course, I cannot thank enough Senator Leahy and Senator Smith for co-sponsoring the Innocence Protection Act. As you consider this historic legislation, I would urge you to keep these key points in mind: 1. Do not limit relief to capital or life sentence cases Only 8 of the 73 post-conviction DNA exonerations involved inmates on death row. People who have been sentenced to decades of incarceration but can prove their innocence deserve an opportunity for justice. Unless there is a uniform requirement that states give inmates such an opportunity, they will not necessarily receive. For example, the State of Washington just passed a post-conviction DNA bill but it only applies in capital or life sentence cases. Fundamental fairness requires an equal opportunity for all classes of inmates across the country to prove their innocence; only federal legislation can provide such a guarantee. 2. No statute of limitations In our report, Recommendations For Handling Post-Conviction DNA Applications, and in our model statute, the Commission on the Future of DNA Evidence did not create any time limits or statute of limitations for making a post-conviction DNA application. The key requirements were substantive--the inmate has to show a reasonable probability that DNA testing would demonstrate he was wrongly convicted or sentenced. I can assure you, based on the work of the Innocence Project, which has done, by far, more post-conviction DNA litigation than anyone else, that the Commission's decision not to create any new time limits or statute of limitations was a considered judgment and a correct one. When one is dealing with old cases (10, 15, sometimes 20 years old) it is difficult to assemble police reports, lab reports, and transcripts of testimony that are necessary to show that a DNA test would demonstrate innocence. Indigent inmates serving hard time may not have the resources or access to counsel to gather the necessary materials expeditiously. That was true for Dennis Fritz and Ron Williamson who were exonerated with DNA testing in April of 1999 in Oklahoma. Dennis received a life sentence. Ron came within 5 days of execution. DNA testing also identified the person, through a DNA databank hit, who probably committed the rape homicide. It was true for Clyde Charles of Houma, Louisiana who spent 19 years in Angola Prison, the so-called ``Farm,'' and 9 years trying, unsuccessfully, to get a DNA test within the state courts of Louisiana--they said he was too late--until we got a federal judge to grant relief pursuant to a Section 1983 suite for injunctive relief. It was true for Herman Atkins of Riverside, California who was released in February of 2000. It was true for Neil Miller of Boston who was released only because, after many years of trying through the courts, District Attorney Ralph Martin consented to DNA testing. It was true for A.B. Butler of Tyler, Texas who was pardoned two weeks ago by Governor Bush after 17 years in jail for a crime he did not commit. Butler attempted unsuccessfully pro se to get DNA testing through the courts for 7years; he only got testing after the Centurion Ministries and attorney Randy Schaffer got involved and obtained consent to testing from a local district attorney. Without adequate counsel, and without resources, it is simply unrealistic and unfair to create a new statute of limitations on post- conviction DNA testing. It should be enough for the inmate to show that a DNA test would provide non-cumulative, exculpatory evidence demonstrating that he was wrongfully convicted or sentenced. 3. There should be a duty to preserve biological evidence while an inmate is incarcerated In 75% of our Innocence Project cases, where we have already determined that a DNA test would demonstrate innocence if it were favorable to the inmate, the evidence is lost or destroyed. Calvin Johnson of Georgia was exonerated after 17 years in prison for a crime he didn't commit but only because, by sheer chance, a court clerk decided not to destroy, as a matter of bureaucratic routine, the rape kit that led to his freedom. The rules for the preservation of biological evidence are totally haphazard across the country. There should be a general requirement to preserve biological evidence and an opportunity for law enforcement, upon notice to an inmate, to move for destruction of the evidence in an orderly way. This would not only preserve the rights of inmates to produce proof of their innocence through DNA testing, but help law enforcement re-test old cases to catch the real perpetrators. 4. There must be more funding to provide competent counsel, especially in capital cases Recent revelations reported by the Chicago Tribune about the lack of adequate counsel for inmates on Death Row in Illinois and Texas are troubling but not surprising. The American Bar Association has long been on record about this crisis, and in our book, Actual Innocence, we discuss at great length the terrible problem of incompetent counsel we found among the individuals exonerated with post-conviction DNA testing. DNA testing only helps correct conviction of the innocent in a narrow class of cases; most homicides do not involve biological evidence that can be determinative of guilt or innocence. Nothing guarantees the conviction of the innocent more than a bad or underfunded lawyer. We have to rely on the adversary system, and the key to that system is a defense lawyer who is qualified, has adequate funds for investigation and experts, and is compensated well enough to provide good representation. I strongly support those sections of the Leahy-Smith bill that provide for standards and more funding for counsel. 5. Requirements about the availability of DNA technology should remain flexible In the vast majority of post-conviction DNA exonerations some form of DNA testing was, in theory, available to the defendant at the time of trial. In some instances the form of DNA testing available was not sensitive enough to produce a result, but later testing was able to produce irrefutable evidence of innocence. For example, Kirk Bloodsworth of Maryland, who received a death sentence, had inconclusive DNA testing using RFLP (Restriction Fragment length Polymorphism Testing) but was exonerated by PCR (Polymerase Chain Reaction) testing. Other times requests for available DNA testing were wrongfully denied by trial courts, or incompetent lawyers failed to request the testing. In other cases, early forms of DNA testing which were not very discriminating (e.g., the PCR DQ Alpha test) and failed to exclude a defendant at the time of trial but a more discriminating DNA test, developed years later, produced proof of innocence. The technology is always advancing and that is why it is wise to provide for the opportunity to prove innocence with new, more accurate DNA testing. Indeed, this is precisely the course Governor Bush adopted in the Randy McGinn reprieve decision. Mitochondrial DNA testing, one of the more sensitive tests that will be used in the McGinn case, can now get results by extracting DNA from the shaft of a hair; previously, one needed a hair with a fleshy root to get a result. This technological breakthrough is of critical importance because microscopic hair comparison--a forensic test that is increasingly being exposed as junk science--has contributed to the conviction of at least 18 men subsequently exonerated with DNA testing. 6. Post-conviction DNA exonerations provide an unprecedent opportunity to improve the criminal justice system Post-conviction DNA exonerations have a special value for improving the entire criminal justice system. Never before have so many people been exonerated so quickly without any debate about their actual innocence. The fact that DNA testing can so exonerate the wrongly convicted is hardly news; what is more important, however, is to figure out how the innocent got convicted in the first place. That is why Pete Neufeld, Jim Dwyer and I wrote Actual Innocence. We not only tell the stories of the innocent wrongly convicted but identify systematically the causes: Mistaken eyewitness identification, false confessions, fraudulent and junk forsenic science, defense lawyers literally asleep in the courtroom, prosecutors and police who cross the line, jailhouse informants and the insidious problem of race. We present mainstream solutions to these problems that conservatives and liberals, Republicans and Democrats, prosecutors and defense lawyers can all support. Certainly one of the most critical reforms is the Innocence Protection legislation you consider today. I urge you to pass a bill this year before more evidence is destroyed or degrades and the slim hope innocent men have to achieve their freedom disappears. The Chairman. Mr. Clarke, we will turn to you. STATEMENT OF GEORGE CLARKE Mr. Clarke. Thank you, Mr. Chairman. I have already asked Barry for a copy of the book with his autograph. Senator Leahy. Give him Senator Hatch's copy. Mr. Clarke. Perfect. I want to thank you also, Senator Leahy and members of the committee, for this opportunity to address you on a topic that I think is of tremendous importance to all of us in the criminal justice system, as well as the public. As was mentioned, I do serve, along with Barry and Jim Wooley, on the National Commission on the Future of DNA Evidence. Since 1998, we have been engaged in a study of various aspects of forensic DNA typing which included, as Barry mentioned, the post-conviction uses of that typing and the important use it has in helping to exonerate inmates who were convicted of crimes prior to approximately 1992, in that range, and so forth. Many of you are familiar perhaps with the study undertaken by the National Institute of Justice and its 1996 report, a copy of which I have, ``Convicted by Juries: Exonerated by Science,'' which chronicles the cases of 26 inmates who were convicted of crimes, again, a number of years ago prior to the availability of DNA typing, who were later exonerated by DNA typing and released from prison. I think that study is very important because it gives us a good deal of instruction about the power of this technology to truly deal with the truly innocent in that context. One of those 26 cases actually took place in San Diego. A man named Frederick Rene Daye was convicted of the 1984 kidnaping and sexual assault of a female victim. He was tried, he was convicted of those crimes and sentenced to a very lengthy term in prison. He was convicted based on not only eyewitness identification by the victim herself, but also eyewitness identification by a totally independent third party who witnessed the kidnaping itself. Frederick Daye just a number of years ago was unequivocally exonerated by DNA typing. My own office has begun a program--this is an in-house program--of reviewing our own older cases--this is in San Diego County--to determine the propriety of post-conviction DNA typing. I am not aware of any other program or any other prosecutor's office in the country that has begun such a program, but we are just in the beginning stages of that. With the assistance of our California Department of Corrections, we have identified 560 inmates who are currently still serving sentences for crimes committed prior to 1992, and it is from that list that we have begun our study. Our goal is to identify those individual cases in which inmates have consistently maintained their innocence and that they were misidentified either by eyewitness identification or other circumstantial evidence indicating that they were the individual who committed that crime. In the appropriate cases that we discover, we will offer DNA typing to those inmates to help resolve the question of actual guilt or actual innocence. I have had the opportunity to closely examine, I believe, both the bill sponsored by Senator Leahy and others, as well as the Hatch legislation. And in my opinion, the standard set forth in the Leahy bill frankly casts too wide a net, and I will explain a little bit more about what I mean by that in a moment. As Ms. Camps pointed out, resources that are currently available for DNA typing can provide for only a fraction of the actual needs of that typing. Evidence, as has already been noted, in tens of thousands of cases of serious and violent crimes are denied the power of DNA typing. Nearly 1 million individuals, we were told as a commission, have provided convicted offender samples and they have yet to be typed and entered into our national database systems. The most important point I think for your consideration is this. Senate bill 2073 requires the granting of DNA typing so long as that evidence is available, obviously, and that it would, if exclusionary, be relevant and exculpatory. Now, as Ms. Camps pointed out, that is a standard that is of some difficulty to me. I think it can be interpreted as has been presented by Senator Leahy and others, which would frankly render it in a manner not totally unlike the Hatch legislation. My fear is that it will not, and that using terms like ``exculpatory'' and ``relevant'' would frankly allow testing of a forcible rape that occurred in a hotel room--allow testing of a semen stain found on the bedspread that the likelihood is has absolutely nothing to do with the rape itself, and I will describe a couple of more examples in a moment. In contrast to that standard, in my view, the Hatch legislation prescribes that an applicant must provide, as has been noted, a threshold or prime facie showing that identity was at issue in the prior proceedings and that results of DNA typing, if exclusionary, would establish the inmate's innocence. In other words, the Hatch bill contains what I think is a fair and common-sense requirement that innocence be able to be established by such DNA testing, similar to what I believe the statutes in Illinois, New York and Arizona provide. The decision of this committee and Congress on this issue, I think, is an extremely important one because interpretation of the significance of DNA results, even if testing is actually conducted, can be extremely difficult. for over 100 years, forensic science has provided us an example already, and that is, as has been noted earlier, traditional fingerprints on the end of our fingers. Fingerprints from crime scenes have proven material in some cases, but frankly they are not material evidence in most cases. Charged defendants are frequently excluded from having left fingerprints at crime scenes, but that evidence proves to provide practically no relevant or even probative information whatever. Most importantly, those exclusions do not normally establish innocence. Examples in biological cases are common-- DNA typing of evidence that may be actually from a husband, a boyfriend, or other consensual partner. Multiple-assailants DNA may, in fact, exclude an individual charged, or in this case convicted of a crime and yet not establish innocence. The standard that we will apply in our own office program closely mirrors that in the Hatch suggested legislation. The criteria in that bill, I believe, strike a necessary balance between the interests of society and our community, and the interests in exonerating innocent individuals. Importantly, the standards set forth in the Hatch legislation, in my view, would allow Fred Daye to receive testing, in the example I gave you earlier. And I think that is a critical standard that that testing, in fact, would be available. I want to commend the Hatch legislationas well for the funding that has been provided as well. But I think, in conclusion, no one should question the benefit that post-conviction DNA testing can provide. The integrity of that same justice system, however, demands that any decision be based on material evidence demonstrating actual innocence. I think our justice system and the American public frankly should demand nothing less. Thank you. The Chairman. Thank you so much. Professor Stevenson, we will turn to you. STATEMENT OF BRYAN A. STEVENSON Mr. Stevenson. Thank you, Mr. Chairman, and it is an honor for me to be back before this committee. No one in this room, and certainly no one who is familiar with the workings of our criminal justice system, could deny that as we sit here today, there are innocent men in jails and prisons in this country. They have been wrongfully convicted. And given the rise in the number of people who have been sentenced to prison over the last 30 years, from 200,000 in 1972 to 2 million today, it is quite likely that there are a lot of men and women who are innocent, sitting in jails and prisons today. In the death penalty context, the recent evidence that we have seen of 87 people being released from death row after evidence of innocence being presented--as we sit here today, it is very likely that there are innocent people awaiting execution, moving ever closer to execution. The legislation pending before this committee is critically urgent in identifying some of those innocent people and preventing greater injustice. It is not a resolution of the problem. After someone has been in prison for 12 years or 15 years, or been on death row for 6 years or 10 years, to simply say we now recognize that you are innocent is a great injustice. Someone's life has been taken away from them in very fundamental ways. That is why I am so pleased that this committee has taken the urgency of this matter and made it a priority in dealing with this very critical problem. Yesterday, the Columbia University report indicated that in two-thirds of death penalty cases, we have made mistakes. It is not a report that suggests that in 66 percent of all death penalty cases, the people were innocent. When you consider the fact that we have had thousands of cases in this country where people have been sentenced to death and in nearly two-thirds of them their convictions or death sentences were illegally imposed, I think it imposes on all of us the need to begin to seriously question how we are thinking about criminal justice enforcement in this country. There was a lot said earlier today about how, when we try to improve the workings of the criminal justice system, we necessarily burden the interests of victims of violent crime. And I would really like to challenge that because as someone who has lost a family member to homicide, as someone who has seen a family member murdered, as someone who has relatives who have been sexually assaulted and brutally assaulted, we do a disservice to victims when we suggest that protecting the innocent, be they folks who have never had exposure to the criminal justice system or people who are wrongly sitting in jails and prisons, is something thatvictims are against. Victims of violent crime and survivors of people who have been victimized by violent crime don't want just anybody convicted for the crime that took their loved on. They want the somebody who actually committed the crime. And what this legislation does today is allow us to move closer to giving them that assurance. Now, post-conviction DNA testing will do something quite useful. It will allow us to identify those cases where biological evidence can lead to the identification of those wrongfully convicted. But it would be wrong for any of us to conclude that post-conviction DNA testing is the answer to the problem of innocent people on death row or in jails and prisons. In my State of Alabama, we have 187 people under sentence of death. In only 8 percent of those cases was the aggravated murder for which someone was convicted aggravated by rape or sexual assault. It is likely that in even fewer of those cases will there be biological material and DNA testing that will be useful. In half of those cases, they were tried in the last 5 years, where presumably DNA testing has already been applied. So we are talking about a very small number. Our review of cases nationwide suggests that less than 10 percent of death penalty cases are even eligible at the conceptual level of being cases where biological material may make a difference. Tragically, many of the innocent people for whom DNA evidence could make a difference won't get the benefit of this bill because, as Mr. Scheck has indicated, we have destroyed the biological material and rape kits that might lead to those tests. Again, that is why I think this bill is so urgent. But the critical point that I really want to stress for all the members of this committee is that under neither of the bills that we have discussed today will we advance in any significant way the opportunity to identify the innocent if we do not provide counsel. It would be a mistake for anyone in this room to think we are doing something useful in creating a right or remedy of post-conviction DNA testing if we don't match that right with counsel. The controversy that we have been discussing about what is the requisite showing of what is necessary to implicate testing underscores the value and the need for counsel to be involved in these proceedings. And in too many States, in even death penalty proceedings, that is simply not the case. In my State of Alabama, we have 187 people on death row as I sit here right now. We have some 27 people on death row who do not have legal representation. After this Congress passed the Antiterrorism and Effective Death Penalty Act and created a one-year deadline, many of those people are within months of having that deadline permanently foreclose having their cases reviewed. We have already had people miss the deadline. I can't tell you what is going to happen to those folks, but I can tell you that if we don't provide for counsel in these cases, none of the remedies that we are talking about, none of the remedies that we are grappling with are going to make a huge difference. It was interesting to note in the Columbia report that the leading cause of error in death penalty cases is bad lawyering. It is something that we cannot disconnect from our efforts to deal with DNA testing. No one is going to be able to write a note saying I want a DNA test and, based on either bill, get a test. They are going to have to do more than that. And for the illiterate, mentally ill, imprisoned disadvantaged people who are usually the victims of these wrongful prosecutions, we cannot expect either bill to make a difference without providing people with lawyers. We have, I think, an opportunity as the leading democracy in the world, as a nation that is activist on human rights in the international context, to improve our system of justice. But I also think we have an obligation as people who care about justice, people who insist that we do all that can be done to prevent people from being wrongfully convicted and certainly being wrongly executed, to take what is offered in the Leahy bill and use it as an opportunity to begin to think more critically about these issues. Without the counsel provisions in the Leahy bill, we will do very little today, very little. We will not advance this issue at all. By providing counsel, we can not only make post- conviction DNA testing a useful tool for identifying wrongly convicted people, but we might also get to the other people who have been wrongly convicted. Again, 90 percent of the people who have been innocent on death row and had their cases overturned and been released could not use post-conviction DNA testing. It is a critical issue that I think warrants this committee's attention, and I am grateful for the opportunity to speak to it, and especially grateful that this committee and the chairman and committee members have taken this issue on. We desperately need your intervention. My Senator, Senator Sessions, has talked about whether things have gotten better. In our State of Alabama, things have gotten better in a lot of areas. But in the area of post- conviction counsel, things have gotten worse. In 1990, I could tell you if I were sitting here that we had a resource center that made sure that there were no people on death row that did not have legal representation. Today, as I sit here, I have to tell you that we have dozens of people without legal representation. The State law in Alabama still limits compensation for lawyers in post-conviction cases to $1,000 per case. We cannot advance justice, we cannot effectively deal with post- conviction DNA testing, we cannot get to the core problems of innocent people wrongly convicted until we deal with that problem. I am grateful that the Innocence Protection Act has taken that on and matched it with the critical issues that are presented by DNA testing, and grateful for the interest and work of this committee. Thanks very much. The Chairman. Thank you, Mr. Stevenson. [The prepared statement of Mr. Stevenson follows:] Prepared Statement of Bryan Stevenson I greatly appreciate the opportunity to address the important legislation pending before this Committee. The ``Innocence Protection Act'' or Senate Bill 2690 is an enormously important step forward in the effort to improve the administration of criminal justice in the United States. The advent of DNA testing technology has dramatically advanced forensic science as applied to law enforcement and criminal investigations. However, notwithstanding our ability to now identify some innocent people who have been wrongly convicted of a crime, there are several procedural and technical obstacles that prevent many imprisoned people from proving their innocence through DNA evidence. By creating an appropriate and efficient mechanism for postconviction testing and by affording indigent people with the essential assistance of counsel, S. 2690 provides much needed reform in a critical area where the demands of justice are most compelling. dna testing Which were the primary methods of scientific identification used before DNA testing became widespread. As a result if improved DNA testing techniques and more reliable testing protocols, forensic scientists and lab investigators can now make definitive determinations about the identify of someone's blood, hair, semen and other genetic evidence. This technological advance had revolutionized pretrial and trial proceedings in criminal prosecutions in the last five years. Forensic scientists can offer dramatically greater assurances in some cases that the accused is guilty of the crime for which he or she has been charged. Similarly, in the last several years, DNA testing has prevented hundreds of wrongful prosecutions against people suspected of committing a violent crime who were in fact innocent. Law enforcement agencies across the county now routinely send DNA samples to the Federal Bureau of Investigation for testing in any case involving the arrest of someone for rape or rape-murder. As has been previously reported, of the first 18,000 results analyzed by the FBI labs, DNA testing excluded the suspect in 26 percent of the cases. This evidence of error regarding those whom the police wrongly suspected of committing a serious violent crime compels more effective use of DNA testing in the postconviction context and makes the elimination of testing barriers absolutely crucial. As an attorney who has primarily represented capital defendants and death row prisoners for 15 years, I am very impressed with the revealing influence of DNA testing in some capital cases. In new capital cases, it is rare that an aggravated rape-murder or sexual assault case is prosecuted without some effort to introduce DNA test result evidence. There have also been dozens of cases where people suspected of capital crimes have been cleared pretrial as a result of DNA tests. postconviction dna testing In the postconviction context, DNA testing has proved somewhat more complicated. Because DNA testing was not readily utilized in many jurisdictions until after 1994-1995, there are many people who have been wrongly convicted of crimes in the 1970's and 1980's who are still in prison. Some of these wrongly convicted prisoners could be exonerated by DNA testing if a procedural mechanism were available to assist both in facilitating a test and in providing the necessary relief if the test result revealed that the imprisoned applicant was not guilty. While dozens of imprisoned people have already won their release after DNA testing established their innocence, many others have been blocked from DNA testing because postconviction remedies are not longer available to them. Many states have statutes of limitation which bar new evidence claims in postconviction proceedings. Many innocent people have been unable to obtain adequate legal representation to secure a test and have an attorney advocate on their behalf. Consequently, many innocent men and women remain imprisoned or under a sentence of death. Each month the effort to provide relief to these wrongly convicted prisoners is undermined by the destruction of biological material necessary to conduct DNA testing. The failure of some law enforcement agencies to preserve scientific evidence has eliminated any hope for somewrongly convicted prisoners to prove their innocence.\1\ --------------------------------------------------------------------------- \1\ There are dozens of examples of law enforcement agencies destroying critical biological evidence even where there is evidence that some accused have been wrongly convicted. In 1997, Harris County, Texas court officials destroyed DNA samples in 50 cases within days after Kevin Byrd, who had been convicted in Harris County, was released from prison after DNA tests showed that he was not guilty of the crime for which he had been convicted. --------------------------------------------------------------------------- The Innocence Protection Act provides for important new procedures and requirements that would address many of the problems currently preventing the identification of wrongly convicted prisoners through postconviction DNA testing. Requiring the preservation of biological evidence, affording wrongly convicted prisoners a right to DNA testing regardless of time restrictions under existing postconviction procedures, and improving defense services to the poor who have been falsely accused and wrongly convicted, as provided in S. 2690, is an extremely important step forward. A. While improved procedures for obtaining postconviction DNA testing are crucial, DNA will uncover only a small percentage of the cases where innocent people have been wrongly convicted The Innocence Protection Act will do much to restore confidence in many criminal cases where biological evidence can resolve lingering questions about guilt or innocence. Our nation's status as the world's leading democracy and our activism on human rights in the international context requires us to take all steps possible to protect against wrongful convictions and execution of the innocent. Improved procedures for postconviction DNA testing will tremendously aid the goal of a more reliable and fairer administration of criminal justice. However, it is worth keeping in mind that DNA testing will touch a relatively small subset of cases where innocent people have been wrongly convicted. Improved access to DNA testing for prisoners will be useful only in those case where (1) biological evidence can determinatively establish guilt or innocence, most notably rape, rape-murder and sexual assault cases, (2) the accused is still in prison or on death row and, most likely, had his case tried before 1994, and (3) the biological evidence has been preserved and is still available for testing. This is a relatively fixed and finite universe of cases. The Innocence Protection Act can over a relatively short period of time accomplish much of what it intends by affording wrongly convicted prisoners a meaningful opportunity to obtain relief through DNA testing. It is hoped that after a few years, DNA testing will become less critical in the postconviction review of criminal cases where legitimate claims of innocence can still be made. This is certainly true, assuming improved access to counsel, in the death penalty context, where there is a relatively narrow category of cases that can benefit from postconviction DNA testing. Only 8 of the 87 innocent people who have been released from death row since 1973 were proved innocent based on DNA evidence. The incidence of rape-murder or sexual assault-murder as the basis for a capital prosecution and a sentence of death is comparatively small in the universe of cases in which the death penalty has been imposed. In my state of Alabama, it is estimated that only 23 of the 187 people who are currently on death row have been convicted of murders aggravated by rape or sexual assault where biological evidence may be determinative of guild. In 10 of the 23 cases where death was imposed, the trials took place after 1994 when DNA evidence was presumably available and utilized. While DNA evidence may sometimes prove useful in cases where the condemned has not been convicted or charged with an accompanying rape or sexual assault, a reasonable presumption exists that postconviction DNA testing will be meaningful in only about 6% of death penalty cases in Alabama. The availability of physical evidence and the credibility of an innocence claim based on other evidence will further reduce the viability and likelihood of postconviction DNA testing in these cases. While the identification of a single innocent person on death row would justify this important legislation, no one should believe that this Act will trigger an enormous number of applications for postconviction DNA testing in the capital punishment context. A random review of about a third of the death penalty cases nationwide in which data was readily available reveals that in only 116 of 1403 cases was a death-sentenced prisoner convicted of a crime accompanied by rape of sexual assault of the victim prior to 1994. While there may be significant differences between jurisdictions in the number of capital convictions where biological evidence can be tested, it is worth noting that it appears that less than ten percent of those sentenced to death have been convicted of crimes accompanied by rape and sexual assault prior to 1994. Again, given the other limiting factors that restrict the viability of DNA testing in postconviction cases, we can make important but limited progress in the identification of innocent people who have been wrongly convicted through expanded DNA testing. There will still be much work to do to avoid executing the innocent and to identify the wrongly convicted after postconviction DNA testing procedures are improved. B. The Importance of Providing Counsel In most instances postconviction DNA testing has required the assistance of counsel to accomplish the exoneration of an innocent person who has been wrongly convicted of a crime. The provisions in S. 2690 for improving defense services to prisoners who have been wrongly convicted are thus crucial to the effectiveness of any effort to protect innocent people from further incarceration or execution. In many DNA exonerations, the accused had been coerced into making a confession or other false or unreliable inculpatory evidence was presented. On April 15, 1999, Ronald Williamson was released from death row in Oklahoma after DNA evidence cleared him of the crime for which he had been convicted. Mr. Williamson was sentenced to death in 1988 and had come within five days of execution in 1994. His trial lawyer had failed to investigate his extensive record of mental illness or the fact that another man had confessed to the crime. Without postconviction counsel and assistance, Mr. Williamson's innocence could not have been established even with DNA testing. The assistance of counsel for the convicted prisoner is essential whenever postconviction DNA testing is employed to correct a wrongful conviction of an innocent person. In the last 30 years the number of people incarcerated in the United States has increased dramatically. In 1972, there were 200,000 people in jails and prisons. Today there are over 2 million people incarcerated in federal, state and local jails and prisons. The dramatic increase in the number of people imprisoned has presented enormous challenges to the administration of criminal justice. One frequently ignored problem associated with the enormous increase in the number of people prosecuted and imprisoned is the ability of state governments to provide adequate legal representation to the accused or the imprisoned and to protect against wrongful conviction of the innocent. In the death penalty arena this problem is especially acute. There are now close to 3,700 people on death row in the United States. Hundreds of these condemned prisoners have no legal representation. The ability of indigent death row prisoners to find competent legal representation throughout the litigation process has created tremendous uncertainty and raised serious concerns about the fairness and reliability of capital sentencing in many jurisdictions. The problems involved in providing adequate counsel for capital defendants and death row prisoners are the primary reasons why the American Bar Association has recommended that a nationwide moratorium on capital punishment be implemented. In Alabama, our death row population has doubled in the last ten years. There are dozens of death row prisoners who are without legal representation and who cannot present compelling claims that their convictions and death sentences are legally and factually invalid. While state law permits an Alabama circuit judge to appoint a lawyer for postconviction proceedings, the law does not authorize any appointment of counsel until after a petition has been filed. Petitions cannot typically be filed until the case has been investigated and a lawyer has expended hundreds of hours of work. Even with appointment, state law in Alabama limits compensation for appointed counsel to $1000 per case.\2\ This rate is so extraordinarily low that no lawyer can reasonably take on one of these difficult cases unless he or she is willing to represent the client for what amounts to pro bono service. Finding attorneys to handle these cases pro bono requires active recruitment, support services for recruited counsel, and basic, practical assistance to those who agree to take on a case.\3\ The general crisis surrounding adequate legal services for death row prisoners has been exacerbated by the Anti-Terrorism and Effective Death Penalty Act (AEDPA). The AEDPA has now created a one-year deadline for people who have been wrongly convicted to present their claims in federal habeas proceedings. The initiation of this one-year time line is not tied to the requirement that indigent prisoners, even death row prisoners, have counsel available to them. Many death row prisoners are therefore now failing to have claims of innocence presented solely because they cannot secure legal representation. The elimination of federal funds for capital representation resource centers by Congress in 1995 has further added to the difficulty of making sure wrongful convictions in death penalty cases can be adequately brought to state and federal courts. From the late 1980's until 1995, federal funding was available through the U.S. Administrative Office of Courts, Defender Services Division to support resource centers which recruited and trained lawyers to handle capital cases in postconviction proceedings. Capital resource centers also provided direct services to dozens of death row prisoners and greatly reduced the number of prisoners for whom no lawyer had been found. After Congress eliminated federal funding of resource centers around the country in 1995, many centers, including the center in Alabama, were forced to close. --------------------------------------------------------------------------- \2\ The $1000 rate was authorized by the state legislature in 1999; the rate until 1999 was $600 per case. Section 15-12-21, Code of Alabama (1975). \3\ Recruitment efforts by volunteers and the American Bar Association to meet the demand for pro bono services to death row prisoners have been unable to keep pace with the growing number of death-sentenced prisoners in the United States. Funded counsel for death row prisoners has thus become a critical issue. --------------------------------------------------------------------------- The provisions in S. 2690 that provide for better-funded legal representation to death row prisoners are absolutely critical if any meaningful effort is going to be made to minimize the risk of wrongful executions in this country. The problem of poor lawyering at trial contributes directly to the risk of convicting the innocent. In capital cases, mounting evidence of how poorly many death-sentenced prisoners were represented at trial continues to surface. Hundreds of death- sentenced prisoners were represented at trial by lawyers who were subsequently disbarred or suspended from legal practice for incompetent, unethical or criminal conduct. In Illinois, at least 33 death sentenced prisoners were represented by lawyers who were later disbarred or suspended from practice.\4\ Much has been written about capital trials in the U.S. where defense attorneys were asleep, intoxicated, publicly stating a belief that their client should be executed, directing racial slurs at the client, or otherwise providing ineffective assistance of counsel.\5\ --------------------------------------------------------------------------- \4\ Amnesty International, ``U.S. Death Penalty: Failing the Future,'' (April 2000 Report, pg. 66). \5\ See e.g., Stephen Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale Law Journal 7, May 1994. --------------------------------------------------------------------------- In 1999 a federal court agreed that a Texas death row inmate in effect had no lawyer at his 1984 trial. Calvin Burdine, whose lawyer had slept during most of his trial, was ordered to receive a new trial after a federal judge concluded that Mr. Burdine's constitutional right to counsel had been denied by his lawyer's sleeping. However, without legal representation in postconviction proceedings, Mr. Burdine's claims could not have been presented. There is no constitutional right to counsel for postconviction review, and many people on death row cannot effectively file the appeals that have frequently proved vital in demonstrating innocence or otherwise establishing that a conviction or sentence is illegal.\6\ --------------------------------------------------------------------------- \6\ Despite the elaborate review process surrounding capital cases in the United States, there have been eighty-five documented cases to date of innocent people who have been wrongly sentenced to death for crimes they did not commit. Some of these innocent men and women came within hours of an execution before being spared. For every seven people executed in the United States, an innocent death row prisoner has been identified. This shockingly high rate of error has caused a few states to consider a moratorium on capital punishment, but has left most proponents of the death penalty undeterred. Recent advances in DNA testing have played a role in identifying some of the innocent on death rows across the United States. However, police and prosecutorial misconduct, mistaken identifications, inadequate defense lawyering and other problems have accounted for most of these unjust death sentences. --------------------------------------------------------------------------- C. Other factors leading to the wrongful conviction of innocent people Too many capital cases have been tried by defense attorneys who called no witnesses, made no argument or otherwise failed to act as an invested advocate. The risk of wrongful conviction in these cases is unquestionably high. Convicting the innocent is also a function of other factors, including incompetent or malicious suppression of exculpatory evidence by police and prosecutors, a reliance on jailhouse informants, and other misconduct or overreaching in capital proceedings. Prosecutorial misconduct or the suppression of exculpatory material has been especially prominent in the cases of innocent people who have been released from death row. Walter McMillian was released from Alabama's death row after it was established that exculpatory statements from the state's primary witness against Mr. McMillian had been concealed. The witness had told investigating officers repeatedly that Mr. McMillian had no involvement in the murder for which he was subsequently convicted. Statements by this witness to another state investigator that he was ``framing and innocent man for murder'' were similarly never turned over to defense counsel. The desire to achieve a capital murder conviction at any cost frequently results in proceedings where a reliable determination of guilt or innocence is not likely. Mr. McMillian was actually placed on Alabama's death row for 15 months while awaiting his trial. In some cases, the innocent have been sent to death row due to flaws in blood or semen testing but to equally unreliable evidence from jailhouse informants. Jailhouse informants or ``snitches'' are convicts who seek favorable treatment in their own cases in exchange for providing prosecutors with incriminating evidence in another case, often one in which competent evidence is lacking. These snitches frequently provide the only ``confession'' from a man who has otherwise insisted on his innocence to law enforcement and the public. One of the men released in recent years from Illinois' death row, Steven Manning, was convicted in 1993 on the word of a jailhouse informant who testified thatMr. Manning had twice confessed to the crime when the two shared a jail cell. For his testimony convicting Mr. Manning, the informant had eight years shaved off his own sentence for theft and other offenses. Mr. Manning was exonerated and charges were dropped this year after FBI tapes surfaced showing that in none of his conversations with this convicted felon did Mr. Manning admit any guilt of the crime. There are few cases where such tape recordings will be available to prove that the snitch has fabricated his testimony in a capital prosecution for his own benefit. In some cases informants have testified against innocent capital defendants in an effort to deflect guilt from themselves. The United States Supreme Court granted relief to Curtis Kyles of Louisiana in 1995 because the prosecution had suppressed evidence about its paid informant who may himself have been the actual murderer. While the informant gave detailed testimony implicating Mr. Kyles, there was undisclosed evidence indicating that it was the snitch himself who had possession of the victim's belongings and who had been described by the eyewitness to the crime. The Supreme Court criticized the ``uncritical readiness'' of the prosecution to accept this informant's doubtful story. Yet it was on this testimony that Mr. Kyles was convicted and sentenced to death. Moreover, his relief did not come until years later when his pro bono lawyers pressed his case on federal habeas corpus--a result now jeopardized by the strict timelines and standards of the Anti-Terrorism and Effective Death Penalty Act that currently governs habeas corpus cases. There have been and continue to be cases in which innocent people find themselves behind bars and cannot depend on scientific testing for exoneration. In 1987 charges were dropped against Oklahoma death row inmate Clifford Bowen when the state had failed to disclose information pointing decidedly to another suspect. There had been no physical evidence tying Bowen to the crime, and he was on death row despite the existence of 12 alibi witnesses who placed him 300 miles away from the scene. In a better-known case, Anthony Porter was released last year from Illinois' death row after volunteers found, among other things, that someone else had committed the crime, and that a witness had been pressured by the police to incriminate Mr. Porter. Indeed, a study indicated that, prior to Governor Ryan's establishing a moratorium on executions, Illinois capital cases were riddled with a myriad of errors, including that (1) in at least 46 death penalty cases, the prosecution's evidence included testimony from prison informants, a notoriously unreliable source of evidence; (2) in at least 20 cases, the prosecution's evidence rested partly on the visual comparison of hairs by laboratory technicians, a forensic method known to be unreliable; and (3) in at least 35 cases black defendants had been tried by all-white juries. Steps must be taken to ensure that such methods do not continue to be utilized to trap the innocent, and that those wrongly convicted will have both the time and the legal resources necessary to establishing the truth. conclusion The Innocence Protection Act is desperately needed. Postconviction DNA testing and improving legal representation for death row prisoners is absolutely critical if we are to prevent innocent people from being executed and if we are committed to providing equal justice for all. I strongly urge this Committee to recommend passage of this important legislation. The Chairman. Mr. Fritz, we are happy to hear your testimony at this time. STATEMENT OF DENNIS FRITZ Mr. Fritz. Good morning, Chairman Hatch, Senator Leahy, and other members of the committee. My name is Dennis Fritz and I currently reside in Kansas City, MO. I want to say that it is such a great honor and pleasure to be before this committee today representing all wrongfully convicted people around the world, even, for unjust crimes that they are currently serving. Actually, before I get into my presentation, I would just like to say that unless that shoe is on the other foot, we don't realize actually what we are going through. I mean, we can look at someone else and their problems and their dilemmas and we can make a judgment and we can look at this and go forth with our decisionmaking, which is good. But I went through such a devastating time. As a matter of fact, in May 1987 I was arrested for a rape and murder that I neither committed nor had any knowledge of whatsoever. I was arrested 5 years after the crime had occurred, and from that day forward everything just went straight downhill in the judicial process. I spent the next 12 years serving a life sentence until I was finally able to prove my innocence, for which I give many, many thanks to Barry Scheck and Peter Neufeld and the Innocence Project for their many, many efforts in securing not only my release, but other wrongfully convicted people. My co- defendant, Ron Williamson, as was previously mentioned, was also wrongfully convicted of the crime and was sentenced to death. He had come within 5 days of being executed. We were both freed on the same day in April 1999, after it was proven through DNA evidence that neither of us could have committed the crime. The prosecutor agreed with defense counsel to dismiss the charges. As a matter of fact, the DNA evidence also established who the real killer was. That was a blessing. At the time of the murder, I was a science teacher and a football coach at a junior high school in Ada, OK. My daughter, Elizabeth, was 11 years old. I loved my family, I loved my job. Just the fact that I was a murder suspect got me fired from my teaching position. Five years later, I was then arrested. The detectives then told me they knew I had not committed the crime, but they believed I knew who did it. From the very beginning, I always told them that I was innocent, but it made no difference with these people. They were bent on conviction. They needed a conviction in this case. It had been 5 years. It was an election year, and anything that I said didn't make any difference. My trial began on April 8, 1988. To say the very least, it was a total living nightmare. The prosecutor's case was almost entirely built on the lies of jailhouse snitches who got their sentences reduced for testifying against me. Even the real killer himself was used as a prosecution witness against both myself and the co-defendant. At the time of the trial, no one had even bothered to test his DNA evidence, even though he had been the last one seen with the victim shortly before her death arguing and shoving her against a car. But no one bothered to test his DNA evidence. At that time, in 1988, DNA evidence was actually available for testing in my case. The only reason that it was not is because the proper laws were not enacted for that DNA to have been tested. Otherwise, if they had been, I would not have had to endure those 12 years of suffering and misery and pain that not only I went through, but my blessed family members did. That is where the real pain goes. I mean, I was a sacrifice, maybe, to see the perpetuation of the advancement of your ideals, your decisions today. I will accept that, but that hurt my family. That disturbs me very much. I am mad, but on the other hand, I am happy that this committee has convened today and that these steps are being made for enactment of laws that definitely need to be enacted. After I was convicted, I appealed my case throughout both the State and Federal Oklahoma courts. My appeals were denied at every stage of the judicial proceedings. At the time of my conviction in 1988, DNA testing actually, like I have mentioned, was just accepted by the scientific community. For years while I was in prison, I repeatedly petitioned the courts to allow me to get the DNA testing done on the crime scene samples. Every time, I was flat out denied. By the time I got in touch with Barry Scheck and Peter Neufeld, I had already lost seven court decisions and had just about lost actually all hope of ever being a free man again. Twelve long and tormenting years passed after that time and I did not see my daughter, Elizabeth. I could not bear for her to see actually what was going on in the prison. The visiting room was so disgusting, I wouldn't allow her to come. So I restricted her visitations and I spoke with her over the telephone. I knew that she loved me, I knew that she believed that I was innocent. And my mother as well supported me throughout this terrible, hellish nightmare. I was subjected to indignities that no person should have ever had to suffer or suffer in the future, let alone being a person who is actually innocent of a crime. The refusal of the State of Oklahoma to compare my DNA with the crime scene evidence was only one of the reasons why I lost all those years of my life. The other reason was my trial attorney's total ineffectiveness. First, he had no real incentive to defend me because he had only received $500 for representing me in a capital murder case. Besides that, he had never handled a capital murder case in his life. In fact, he had never handled any type of criminal case whatsoever due to the fact that he was a civil liability attorney. I wholeheartedly believe that if I had had adequate representation from a qualified lawyer, I would have not been convicted. I would have never been forced to endure these cruelties which Senator Leahy's bill seeks to prevent. It is more than past time to put an end to these unmerciful travesties of injustice that occur when the truth is hidden or disregarded. I appeal to you, the members of this committee, to enact the laws to fully assure that no human being will ever have to suffer as I did for something of which they are totally innocent. Thank you. The Chairman. Thank you, Mr. Fritz. Certainly, your testimony is very moving to all of us here today, as it should be, and a good message for all of us to take under consideration on this committee. So you have done the country a great service in coming here today. Mr. Fritz. It was all my pleasure. The Chairman. I have been very moved by your humble testimony and it means a lot to me, and I sure don't want to see anybody else go through that to the extent that we can prevent it. Mr. Wooley, we are happy to have you here. You have a very excellent reputation and we look forward to taking your testimony. STATEMENT OF JAMES WOOLEY Mr. Wooley. Thank you, Chairman Hatch, Senator Leahy. It really is truly an honor and a privilege to be here, and I commend the committee for taking up this topic. Let me introduce myself. My name is Jim Wooley. I am a partner at a law firm called Baker and Hostetler, but up until January of this year I had spent 10 years as a Federal prosecutor in the Northern District of Ohio as an assistant U.S. Attorney. Prior to that, I was an assistant District Attorney in the Manhattan D.A.'s Office in New York. I am also currently an adjunct professor in criminal procedure at Case Western Reserve University Law School. In 1990 and 1991, I was the prosecutor in a case called United States v. Yee, a homicide case which is often referred to as the landmark forensic DNA case in this country. The case involved the first DNA test ever performed by the FBI lab. The DNA evidence was admitted as evidence after an extensive pretrial challenge which was very ably led by Mr. Scheck and others, who by the way was appointed counsel, and extremely competent appointed counsel, in that matter. Because of my role in the Yee case, I became and remain very active in the forensic DNA community. I was a member of the Ohio DNA Advisory Council, and I am currently serving on the National Institute of Justice's Commission on the Future of DNA Evidence, along with Mr. Clarke, Mr. Scheck, and others. I have been asked to testify here today regarding proposed Federal legislation which, as I understand it, would provide for post-conviction DNA testing on behalf of Federal inmates who were convicted at a time when DNA testing may not have been available. I have seen different versions of proposed and existing legislation on this topic, and it is my belief that a statute addressing this topic needs to be drafted in a manner that allows post-conviction access to DNA testing to innocent Federal inmates without over-burdening the system with post- conviction proceedings on meritless requests. Of the existing and proposed statutes I have seen, I believe the statute proposed by Senator Hatch does the best job of striking this balance, for the following reasons. I will say that I believe they all attempt to strike the balance. I prefer the Hatch statute and its effort to strike the balance for the following reasons. Most importantly, the Hatch bill does provide access to DNA testing for the innocent Federal inmate who was convicted at a time when DNA testing may not have been available to prove his or her innocence. I have reviewed other statutes that provide for post-conviction DNA testing on a lesser standard than the Hatch bill, but I have not yet seen one that would give a truly innocent Federal inmate relief in a case where the Hatch bill would not. The Hatch bill allows an inmate to make a motion when evidence, ``was not subject to DNA testing because the technology for such testing was not in existence at the time of trial.'' Other proposed statutes draw no distinction between inmates who have pleaded guilty and inmates who may have been convicted after trial. There is equal access to both classes of inmates. I believe it is important to draw the trial/guilty plea distinction here in the context of a proposed Federal statute. I may be the only former or current Federal prosecutor who has testified on either of the two panels, and I am very familiar with Federal criminal Rule 11 which, as I am sure you all know, mandates a very thorough inquiry by a Federal judge before any guilty plea can be accepted. As part of that inquiry, under rule 11(f), the court must satisfy itself that there is a factual basis for the plea. In my 10 years as a Federal prosecutor, the factual basis was invariably established by the defendant admitting in open court that he or she engaged in the conduct that he or she was accused of committing. Often, this admission is under oath and includes the defendant describing in his or her own words exactly what they did. I believe that a Federal inmate who has confessed hisguilt in open court while represented by counsel should not have the same access to post-conviction DNA testing as an inmate who has consistently maintained his or her innocence, but was convicted after a trial. I think that is an important distinction in the context of a Federal statute. The Hatch bill provides a reasonable time limit of 2\1/2\ years from the date of its enactment to allow Federal inmates to file requests for post-conviction DNA testing. In 1996, Congress amended the habeas corpus statute to incorporate a one-year time limit on collateral attacks on Federal convictions. I think that amendment reflected the sentiment that it is appropriate to place reasonable time restrictions on post-conviction claims. I think that thinking also applies here. If there are innocent Federal inmates who were convicted before DNA was available, even if they were convicted 12, 13, 14 years ago, those cases shouldn't be barred from consideration. But a reasonable window of time of 2\1/2\ or 3 years, or whatever, to have those matters considered I think is appropriate. The Hatch bill provides that a court should not order post- conviction testing if, after the review of the record of the trial of the applicant, the court determines that there is no reasonable possibility that the testing will produce exculpatory evidence that would establish the actual innocence of the applicant. This gives the court the ability to deny a post-conviction request if it determines that the DNA testing would not be material to the finding of guilt. There is no need to burden the system with mandatory post- conviction DNA testing in cases where the results of a DNA test could have no bearing on the finding of guilt. In imposing a materiality requirement, the Hatch bill is consistent with the Illinois statute, the New York statute, and also well-settled legal precedent that imposes a materiality requirement in other settings involving post-conviction requests for relief. I have seen other statutes, including the Leahy statute, that would require post-conviction DNA testing in cases upon a showing merely that an exculpatory DNA test would be relevant. Relevant evidence covers a very broad spectrum, much broader than relevant and material evidence. For example, it would be certainly relevant to show that a Federal inmate convicted of extortion did not lick a postage stamp on an envelope that contained an extortionate demand. But it would certainly not be material if the other evidence in the case included legal wiretap recordings of the inmate's extortionate demands. There is no basis in law or logic for abandoning the concept of materiality in the limited context of a post-conviction request for DNA testing. In this regard, I should also note that the proposed statutes that mandate DNA testing without a finding that it would be material also draw no distinction between the trial and the guilty plea, which I think is important in the Federal system. The combination of those attributes of the statute would allow a Federal inmate who has confessed and pleaded guilty in open court to force the system to conduct DNA testing even if the results would not prove his innocence, but would instead produce evidence that would merely be relevant to his claim. In other words, the Federal extortion inmate would be entitled to mandatory DNA testing of the postage stamp even though he pleaded guilty and his extortionate demands were lawfully tape recorded. In closing, I would say that the Hatch bill does an excellent job of allowing access to post-conviction DNA testing to innocent Federal inmates without creating the possibility that the system could be burdened with meritless requests that would obscure the ones with merit, and that is why I support the Hatch bill. I thank you for your time and your consideration. The Chairman. I want to thank this panel for being here. I feel badly that I have to leave. I am going to turn the committee over to Senator Sessions to begin the questioning and then he will go to Senator Leahy. But this has been a very good panel. Both panels have been excellent. We are going to try to get these problems resolved. We need your help. I would like to get it out of the realm of politics. I would like to get it out of the realm of prodeath penalty/ antideath penalty. I would like to do what is logical, just and right, and if we can do that, you will have a bill this year. If we can't do it, if it is just another big, broad way of trying to get rid of the death penalty, we are going to go nowhere. Or if it is just a bill that is trying to implement the death penalty, we are going to get nowhere. So I would challenge you to help the committee. Each of you has your beliefs about the death penalty, but to me that is not the real issue here. The real issue is how do we do justice and do we implement justice and how do we ensure that justice is going to occur. So I am challenging you to help us to do that. I think Senator Leahy and I work very well together on many matters, and I intend to work very closely with him on this one. And I would like to get it out of politics, if we can, and there has been a little bit of a temptation here to put into politics by some. Justice is more important to me than anything else. Senator Leahy. Mr. Chairman. The Chairman. Yes. Senator Leahy. I might say I couldn't agree with you more about keeping it out of politics. That is why on my legislation we both Republicans and Democrats on it. The 45 people who will join similar legislation in the House, LaHood-Delahunt, they have both Republicans and Democrats on that. We have both supporters and opponents of the death penalty on it. That is why I have spent nearly a year in putting this together to make sure that we would have both those who support the death penalty and those who oppose the death penalty, both Republicans and Democrats, conservatives and moderates and liberals, on it. We have tried very much to keep it out of politics. And when I have been asked questions about this, even to interject this in any way into the presidential race, at each of my interviews on that I have stated very clearly this is not intended for it. Now, the assistant attorney general from California spoke of the Leahy bill. One of the reasons I corrected her was to make sure she understood this was not just a Democrat bill. This is a Democrat andRepublican bill, as it is in the House. The Chairman. Well, there are a lot of Republicans who don't think it is a Republican bill at all, and there are some Democrats who don't think it is a Democrat bill. So the point I am trying to make is that we have had lots of criticism of both bills here. That is the purpose of this. It isn't to sit here and triumph our own bills. I am not trying to do that. We are going to file our bill to create the discussion because there are differences between these two bills that are very significant. I think some of the criticisms of the Leahy bill and of the Hatch bill we have to look at, and what I want to do is come up with a bill that is truly bipartisan in every way and gets a hundred percent of the people, if we can, or at least a high percentage of Democrats and Republicans to vote for it. That is what I want to do. If we can do that, I will feel like Senator Leahy and I and other members on this committee, including the distinguished Senator from Alabama, who plays a significant role in this area, will have done something really worthwhile for the country. So, again, I am calling for everybody to put aside politics, triumphing one bill over another, and let's just see if we can come up with a bill that literally will solve the problems and yet be fair to both sides, prosecutions and defenses, and hopefully prevent people like Mr. Fritz from ever having to go through that kind of suffering again. Your testimony probably is the most relevant here today because you are the one who has really suffered from an injustice in the law. And I think that these people that Mr. Baird brought up, Mr. Criner--if the way he has described it is right, that is despicable that he is still in jail. Frankly, I don't care who wants to make political hay out of what. All I can say is that I think both of our presidential candidates would agree with what I am saying here, so I don't want to see anybody trying to make hay against one or the other candidates. Mr. Fritz. Mr. Hatch, I have heard mentioned here a couple of times today talk about State sovereignty. You know, I am very respectful of that myself, but also I think one thing that I really see that is just as equally important is judicial economy. Moving the courts and getting these cases going and the financial considerations that several members spoke about is going to have to take place to initiate this. But I think the only way that something like this is going to truly work is through a federally-funded bill. The Chairman. Well, we have got that point and, of course, that is what we are talking about, and I hope we can prevent convictions like yours from ever happening again. I would like to do that. The history of this world is a history of some injustice, and a lot of us are trying to work through that and trying to find ways of overcoming injustice. I just want to thank you all because I think these two panels have been just excellent, irrespective of what our differing points of view are on the death penalty. To me, that is almost irrelevant to this discussion. We want to make sure that we can do what is right. So let me turn the time over to Senator Sessions, if you can take over and be the first questioner. Senator Sessions [presiding]. I thought I would ask a couple of questions that I know Senator Hatch was concerned about. Two of our witnesses, Mr. Scheck and Mr. Clarke, worked on DNA evidentiary issues in the O.J. Simpson murder prosecution. Mr. Scheck worked on behalf of Mr. Simpson and Mr. Clarke worked on behalf of the State of California, so I have a question. One of our panelists was convicted, Mr. Fritz, before the DNA technology was commonly available. As we all know, he was released last year after DNA tests revealed that the biological evidence found at the crime could not have come from him. Is there any doubt that Mr. Fritz could have obtained post- conviction DNA testing under the standard in the Hatch legislation? Mr. Scheck. Well, I think that one good thing about all of this is that Mr. Clarke and I and our DNA Commission are in agreement. If Mr. Clarke and I sat down and looked at the cases, I think he will tell you, as well, 99 percent of the time, 99.9 percent of the time, we would agree on how to do this. I think the real problem is that we really don't have a lot of training for lawyers certainly in the forensic area, and we all know the terrible problems of counsel in capital cases, frankly, and non-capital cases in order to get this done. The problem, as I mentioned to the chairman, is that arguably one could say that in Dennis' case that in 1988 I think Oklahoma was the first State--Life Codes introduced DNA testing in the State of Oklahoma, so it was actually around then. There are other cases in the State of Oklahoma that the same thing happened. There is a guy named Robert Miller who is profiled in our book, who again was sentenced to death for the worst and most brutal kind of rape and murders of elderly women. And DNA testing proved that he was innocent, and also identified the person who committed the crime in the State of Oklahoma. He tried to get DNA testing, too. The answer is, under that provision, there is serious doubt that Dennis could have gotten the test. And, frankly, it took him over four years of petitioning the courts to get it. So under the statute of limitations, there is again a difficulty here; in other words, the new statute of limitations that says within a certain number of years--I think the latest version I saw was 30 months--you have to make an application to get the DNA tests and get all the records together. And that would be difficult in Dennis' case and many of the others. Senator Sessions. Well, Mr. Clarke, I understand at the trial of Mr. Fritz, identity was an issue and the State's evidence rested on biological evidence. So under the Hatch bill, certainly would you agree that he would have been able to obtain relief? Mr. Clarke. There is no question in my mind. As I was becoming familiar with Mr. Fritz' case, including through what he was describing today, I was thinking of our own in-office review program, and this is the type of case that would stand out, I think, as clearly one under the program that we have instituted that again will mirror the standard described in the proposed Hatch legislation. This is a case that would cry out for DNA typing, an individual who claimed all along ``it wasn't me.'' The question is, is there evidence that could help resolve that clearly, and I think this is exactly the type of case that the Hatch legislationwould demand testing in. Senator Sessions. Mr. Wooley, perhaps, and Mr. Scheck, in the Hatch legislation you have got a 30-month requirement to get your request in, I guess, and filed. Let's talk about that a little bit. In one instance, it doesn't seem to bother me whether it was indefinite because as each year goes by, fewer and fewer people are going to be available to claim it. So at first blush, it doesn't. But it does suggest to me that if you have an unlimited time, people would be delaying and seeking the request and the evidence may be less available. But primarily it could be used as a last-minute tool to file on the eve of a date set for execution to delay executions. Mr. Wooley, would you comment on whether or not you could agree to anything other than a 30-month rule in your theory there? Mr. Wooley. Senator Sessions, I look at it as a former Federal prosecutor. In the Federal system, I think it is a very reasonable time limit. What it is not is a statute of limitations, and I think on the first reading of it some people look at it and say it looks like a statute of limitations. But the fact is the Hatch bill would allow someone who was convicted at a time when Mr. Fritz was convicted to bring his matter before a Federal judge. It would just say from the date of the enactment of the statute, you have 30 months to try to get that together. Within the Federal system, where I think we are going to see a very limited number of situations that fall in this category, given the different nature of Federal prosecutions, I think it is a very reasonable, workable time limit. I wouldn't begin to opine about how that would work in different State systems, where I have never practiced. Mr. Scheck. I think that is a big difference because the bill is really directed, when you get down to it, to the States. And in the States, our DNA Commission reached the judgment after much debate that a statute of limitations, that 30 months, wouldn't make sense because it just takes so long. The older the case, the more difficult it is to gather the transcripts and get everything together. Senator Sessions. But the time commences after you make the claim, does it not, not after the judge makes a ruling? You have to make a claim and commence the process within 30 months. Mr. Scheck. We are talking about people who are indigent. Some of them could be mentally retarded in many instances. Take Earl Washington, in Virginia, who is going to get tests that I have a high degree of confidence are going to show he is innocent. That is another case profiled on the ``Frontline'' special tonight. You really can't expect that people are going to be able to get the materials together, particularly without counsel, as Mr. Stevenson says, with any particular time limit. The bottom line is--and let me try to be non-political about this--I think Governor Bush made the right call in the McGinn case, which is exactly this kind of case, because I came in within 2 weeks. The lawyers previous to that had never been able to focus the presiding judge on the appropriate tests because they didn't understand them, frankly. They never said we can have an STR DNA databanking test done on semen in the underwear, and a mitochondrial DNA test done on the pubic hair that would be determinative perhaps of guilt or innocence, but certainly as to whether or not he was death-eligible. And there were all of these appeals that went on and nobody really frankly had the training or understanding to make that clear. And then when the presiding judge saw it, he made the right call, and it went to Governor Bush and he made the right call. You know, I have real doubts under the Hatch statute as written right now whether McGinn would get relief. But I think it is appropriate, as Governor Bush decided in that case, that he get relief, and we have to draft these statutes so that kind of--and I have no idea how it is going to turn out in his case, but watch Earl Washington in Virginia, where Governor Gilmore just 2 weeks ago finally agreed to do the testing. I have a high degree of confidence he is going to be exonerated based on the prior results, and that man was sentenced to death. Senator Sessions. Well, I would just say this. The Supreme Court, Justice Powell writing a number of years ago, said a pattern seems to be developing in capital cases of multiple review, which is true. Before anybody is ever executed, it always gets to the Federal court of appeals and the State supreme court, often two or more times. But, anyway, patterns of review in which claims that could have been presented years ago are brought forward often in piecemeal fashion only after the execution date is set or becomes imminent. Federal courts should not continue to tolerate, even in capital cases, abuse of the process. So I guess if we could figure out perhaps a 30-month statute to make sure we are not ending up with a devise to piecemeal delay cases even longer than they are today, I might be willing to listen. The 30 months seems to me an adequate amount of time. Senator Leahy. Senator Leahy. Thank you. Mr. Clarke, you are a member of the National Commission on the Future of DNA Evidence. Do you support the Commission's recommendation that there should be no statute of limitations on claims of post-conviction DNA testing? Mr. Clarke. Well, I think one of the items that we looked at in the context of post-conviction review was a question of whether there should be a provision where--and in the ultimate version there is--that a court in deciding whether or not to grant relief, that is grant DNA testing, must reach a threshold decision, is this for purposes of delay or not. In other words, is this the fifth, sixth, seventh Federal habeas corpus petition in a State capital verdict? That is obviously much of what was addressed by Congress in terms of death penalty habeas corpus reform, and so on. I think that provision in not only our recommendations, but also the model statute that our commission provided helps account for that. There is not a strict time limit contained in our recommendations and model statute. There is, however, a provision that in a sense deals with that which is designed to eliminate the use of such a device simply to delay execution. So I think in many respects that solves it. I don't have an objection to either a fixed amount or a provision similar to the one that we utilized in our model statute. Mr. Stevenson. Senator, if I could just comment on that, I do think it is worth acknowledging that to the extent that we put restrictions on when these petitions must be filed, we have to increase the resources we are going toallocate in the defense community to manage them because the community of people who are going to actually get the most requests are defense communities. They are going to get a hundred requests and have to decide among that hundred requests which of them meet the guidelines. And under the Hatch bill, unless there is going to be some allocation for counsel, Mr. Fritz would not get relief. In my State of Alabama, there is no place for Mr. Fritz to write. Who is he going to write for the assistance? We don't have an appellate defender office, we don't have a post-conviction defender office. He would have to write a private lawyer and convince that private lawyer, for $1,000, to look into his case. And I suspect it would take him longer than 30 months in many instances, and certainly a lot of people, to even find that lawyer. And so I think it is fine for us---- Senator Leahy. And even be assured that that lawyer was a competent lawyer. Mr. Stevenson. Absolutely. Senator Leahy. As you and I both know, around courthouses there are some lawyers who basically--their office is the pay phone booth in the courthouse. Mr. Stevenson. Well, that is absolutely right. I think that if we provide people with adequate representation--as Senator Sessions suggests, you know, this thing can exhaust itself over a period of time. In several years, we should see a very small number of these kinds of requests being made because people have either disqualified themselves by having the technology available at trial or they have exhausted the remedies. Innocent people on death row in jails and prisons are not anxious to stay in jail and prison. If you afford them this remedy, I guarantee you the innocent people will demand testing as soon as possible. They have no interest to stay in prison longer, kind of waiting to see what happens. Senator Leahy. Well, I agree with you on that, and let me just follow up, then, with the real-life situation of Mr. Fritz. Mr. Fritz, you were a science teacher, a coach; by nature of that position, a respected member of the community, a family man. And then, as you have testified, your world came crashing down on you when you were charged with a crime that you did not commit when the Oklahoma authorities basically put you at the scene even though you hadn't been there. Then once convicted--as we now all acknowledge, both the prosecutor and everybody else acknowledge was a mistake--you asked the State of Oklahoma to have your DNA tested. In other words, you wanted to say, look, I am willing to take this chance; I will prove I am not the person. Why did they say no? Mr. Fritz. Well, every time I petitioned both the State and Federal courts for the motion to test and inspect the DNA evidence, they always answered back that I had never raised a constitutional claim. And I always replied, well, how unconstitutional is it to keep an innocent man in the penitentiary. I always briefed immediately all kinds of different labeled motions that I would, in my unskilled desire to get the testing done---- Senator Leahy. You weren't able to get an attorney? Mr. Fritz. No; As a matter of fact, the only attorney that I had as a matter of right was after my State direct appeal. And since I didn't have any money, I couldn't afford an attorney, so I worked on my own case from that point on. Senator Leahy. So, Mr. Fritz, when the court said it is not a constitutional claim--I don't want to put words in your mouth, but would you say that perhaps you took a less abstract view of it than they did insofar as you were the one who was locked up? Mr. Fritz. Most definitely. Senator Leahy. You were the one who was innocent and you were the one who thought that perhaps that affected your constitutional rights. Is that a fair statement? Mr. Fritz. Yes. I could actually see what was happening. It was just a procedure whereby me being a pro se litigant, I got the cursory review that I was expecting. No real attention was ever paid to my case circumstances or my challenges that I made. Actually, where my mistake came in was that I argued the sufficiency of the evidence all the way through to the U.S. Supreme Court under the weight of the evidence because I didn't know that after you get out of the State courts, you have to argue the elements. So that was their hole in the fence. Senator Leahy. You weren't a lawyer? Mr. Fritz. No. Senator Leahy. Mr. Scheck, Chairman Hatch's proposal says DNA testing is allowed only if the technology was not available at the time of trial. When did DNA technology become available, and how would this threshold requirement have affected Mr. Fritz in his case or any of these other people you have helped exonerate? Mr. Scheck. I think in almost virtually every case one could say, in theory, DNA testing was available at the time of the trial. And DNA testing has changed. We have more discriminating tests than we had in the past. I think that the Leahy-Smith bill accurately captures the balance and is consistent with exactly what we put in our DNA Commission report, in that you want to make a showing that there is an accurate test available that could be dispositive of the issue of guilt or innocence. None of us are here suggesting that in a case where somebody has done DNA testing which is pretty incriminating, like an RFLP test, that that person is ever going to get the test. We are saying, all of us here, that if there was, let's say, what they call a DQ-alpha test which wasn't very discriminating, like in the case of Tim Durham of Tulsa, OK, that a retest with a more discriminating technology can prove innocence. That is the kind of balance we can strike and I think it is accurately and correctly put in the Leahy-Smith bill. And the language, unfortunately, in the Hatch bill, in theory, read literally, could preclude virtually every one of our clients from getting the test. And the problem, I have to say, is let's be frank. In cases where there were heinous crimes committed, in many jurisdictions where the prosecutors and the judge are either running for reelection or are heavily invested in the verdict, nobody really likes looking into these cases and doing the DNA tests. They really don't in many instances. Some people do. We have our commission recommendations that say people should consent to the DNA testing notwithstanding the statute of limitations. Fifty percent of the time, theprosecutors in appropriate cases stand up and do justice, like my friend Woody here, but a lot of times they don't. That is why we need real requirements and a standard that is reasonable. Senator Sessions. Senator Feingold. Senator Feingold. Mr. Chairman, briefly, I was intrigued by your reference to Justice Powell because at the end of his career, after he saw this mess of the death penalty, the one thing he said he would do over basically was he would get rid of the death penalty. That is how he ended his career, even though he was one of the architects of the Federal death penalty. I understand Chairman Hatch's admonition about politics with regard to this issue. We have to be very careful. The problem is that one of the places where the death penalty is terribly active happens to be the State of Texas, and it is simply not possible for us to talk about this problem without, on occasion, referring to what is going on in Texas in some of the cases. In the spirit of just making the record correct, I want to make a point with regard to this issue that the chairman raised, which is the requirement in Texas that there be two counsel as somehow an answer to the question of adequate representation. Take the case of lawyer Joe Cannon, in 1979, when Mr. Carl Johnson was convicted of murder and sent to death row by a Texas State court. During the trial, his lead counsel, Joe Cannon, was often asleep. Now, Mr. Cannon had co-counsel, as apparently required by Texas law. Mr. Philip Scardino, who was two years out of law school and recalls the whole experience as ``frightening.'' He said, ``All I could do was nudge him sometimes and try to wake him up.'' Johnson's appellate attorney, David Dow, said the trial transcript gives the impression that there was no one in the courtroom defending Johnson. It, quote, ``goes on for pages and pages and there is not a whisper from anyone representing him,'' unquote. Mr. Johnson was executed in 1995, the twelfth execution under Governor Bush's period as governor. It is literally cold comfort to Mr. Johnson that there is this second counsel requirement. And I would add that Mr. Fritz here would not have had the problem of his incompetent counsel resolved by the Hatch bill. That isn't dealt with by the Hatch bill, so the bill is inadequate in that regard. A second point for the record. Some have suggested that the Hatch bill is adequate and that it is okay; that as long as somebody has happened to plead guilty, that should be a bar in some cases to future DNA tests. Let me just suggest that in some cases people might plead guilty to avoid the death penalty. Maybe they would take life imprisonment out of fear that they would get the death penalty. I think we have to at least look into whether that is a very wise provision. Mr. Scheck. Senator Feingold, I should add that there is a case, David Vasquez, in Virginia, who was a mentally retarded man who pled guilty and took a life sentence. And DNA proved that he did not commit the crime, but a man named Spencer who was ultimately executed in the State of Virginia for a series of rape homicides. So, that does happen. Senator Feingold. Well, I thank you for that. I just want it noted for the record that these two are specific examples of particular points about how we draft this legislation. It is not about politics; it is about trying to make this really work. Mr. Scheck, I want to thank you especially. I want to say that I have read every word of your book already. Senator Sessions. Senator Feingold, if I could make one response, and I will give you extra time. As I understand it, this trial in 1979 was before the counsel law passed, and Governor Bush did sign that law. Senator Feingold. I appreciate your point. Senator Sessions. So the point is not invalid that you made, but I did want to correct that bit of the record. Senator Feingold. Mr. Chairman, if it is just a question of two counsel, that doesn't mean you have got adequate counsel. Senator Sessions. Well, one of them ought to be awake if they have got two of them. Both of them ought to be awake. Senator Feingold. As I say, cold comfort for the gentleman who is no longer with us. Mr. Scheck, I want to thank you for this book. It was truly an eye-opening examination of the failings of our criminal justice system. I commend you and Peter Neufeld and Jim Dwyer, and you and your colleagues at the Innocence Project for what you have contributed. It has been very helpful with regard to all that we have done. Mr. Scheck. Thank you, Senator. Senator Feingold. And I just want to ask one question because I know it is very late, and I thank the chairman, of Mr. Stevenson. I understand that you often speak of the problems of discrimination in our criminal justice system, and in particular in the administration of capital punishment. You mentioned that topic only briefly in your written testimony and I thought I would just give you a minute or two here to say a little bit about what the committee should know about this and whether the Innocence Protection Act addresses the problem. Mr. Stevenson. Well, there are obviously a lot of factors that we can identify that are common in cases where innocent people end up wrongfully convicted. The Illinois review, for example, showed that in 33 of the cases where people had been sentenced to death, the lawyers had been subsequently disbarred or disciplined for bad lawyering. We know that there is this problem of using jailhouse snitches or informants and witnesses who are inherently unreliable. We know that there is this problem of suppressing exculpatory evidence and misconduct. The dynamics surrounding many of these capital cases where everybody is invested in getting the right result are very compelling. I represented a man who spent 6 years on death row for a crime he didn't commit, where he was actually placed on death row for 15 months before going to trial. And that was justified by the atmospherics that a capital case sometimes creates. And then there is a problem of race. In 80 percent of the cases where people have been executed in my State of Alabama, they were tried by juries that grossly underrepresented African-Americans. It is not a Southern problem. Illinois made the same finding with regard to racial bias in jury selection in those proceedings. My office has been involved in 23 cases where courtshave reversed capital murder convictions after finding that prosecutors exercised peremptory strikes in a racially discriminatory manner. And I think if we are going to comprehensively deal with this problem of innocence, we have got to be thinking about all of these issues because when we look at the capital context and we see that only 10 percent of the 87 people who have been released have been released on DNA evidence, there are other factors that explain the other 90 percent that are critically important if we are going to make a difference. Senator Feingold. Thank you very much. Thank you, Mr. Chairman. Senator Sessions. Thank you, Senator Feingold. Some progress has been made, Mr. Stevenson, I think you would recognize, subsequent to Batson, which was the requirement by the United States Supreme Court that judges scrutinize the jury strikes of a prosecutor. Some of these reversals, I assume, are based on the Batson Supreme Court ruling that you obtained? Mr. Stevenson. That is correct. In fact, almost all of them are. Before Batson, there would have been no opportunity to bring these issues to court, and they have all been subsequent to Batson. I think Batson has made a huge difference. Unfortunately, because of the way in which these proceedings take place, now what happens is a prosecutor has to give a race-neutral reason for explaining why people of color have been excluded. Unfortunately, in too many places, that hasn't solved the problem. It has just made jury selection a lot more entertaining because you get these wonderfully creative reasons about why people are being excluded which we continue to believe are pretext. But it has advanced this effort. I think we have made some progress on this issue, but I think there is a lot more progress to be made. Senator Sessions. It is my observation, post-Batson, that juries probably overrepresent the African American community on the jury. In other words, you will tend to have routinely a larger percentage of the jury that is African American than in the community in Alabama. Would you agree with that? Mr. Stevenson. Well, I think it really depends on where you are. We just had an execution in the State of Alabama where the prosecutor, prior to the execution, admitted that peremptory strikes were used in a racially-conscious manner. In that particular county, Russell County, no one has ever been tried in a capital case where the representation of African-Americans has been proportionate to the community percentage. That is a county that is 40 percent black. They have never had a trial jury with more than one African American on it. Senator Sessions. That case would have been tried prior to Batson. Mr. Stevenson. No. It was tried after Batson. Senator Sessions. The conviction? Mr. Stevenson. Yes. The appeal took place after Batson as well. But Batson does not apply to any case that was not tried or pending on a direct appeal before 1986. Senator Sessions. I would have thought that would have been a good basis for appeal. Mr. Stevenson. Well, we thought so too, Senator. [Laughter.] Senator Sessions. Well, a lot of things have happened. The legislature has improved and narrowed their statutes for death penalties. Congress has passed Federal laws that are effective. I think we should be constantly conscious of the possibility that prejudice or other factors, or than evidence of guilt or innocence, enter into a case, and I think that is important. Mr. Fritz, thank you for your moving testimony that strikes at the heart of what our justice system is about. It ought to cause all of us to pause and think, those of us who have been in the prosecuting business for a long time, to really think about it. One thing I would mention with regard to the time limit is I think, Mr. Stevenson, you are correct. An innocent person is going to promptly demand his DNA evidence as soon as he feels like he has a right to get it. But a person who is guilty may use that by waiting until the last minute as a delay, and if we could deal with that possibility, I would be open to working with Senator Leahy on maybe getting around the 30-month rule. Mr. Scheck, you shared in your book some comments about eyewitness testimony. I have seen two cases, one of which was in Federal court when I was an assistant United States Attorney that turned out to be an innocent person. A person robbed a bank. He had a certain briefcase and a pistol, and he was identified in photograph display. The individual was arrested and was brought in All five bank tellers identified him. Sometime later, an individual was caught in nearby Pensacola, FL, with a briefcase with a latch that didn't quite open, a chrome-plated revolver, and a briefcase of money that came from the bank. And we held a lineup and two of the tellers still picked out the wrong guy and three of them picked out the correct guy. I don't know that there is any way we can deal with that. Sometimes, maybe I think a cautionary jury charge might be appropriate. But when you have never seen a person before and you are having to make an I.D. under stressful circumstances, there has been some history that errors have occurred. You mentioned that in your book. Do you agree with that? Mr. Scheck. Oh, absolutely. There is no question that the mistaken eyewitness identification is the single greatest cause of the conviction of the innocent. We found that in our study, in actual innocence of the post-conviction DNA exonerations. Historically, that has always been true. I appreciate the fact that you mentioned five eyewitnesses in your case. Kirk Bloodsworth was a man who was sentenced to death in Maryland and there were five eyewitnesses who said he committed the rape and murder of this little girl. DNA testing proved him innocent. We actually have, Senator, some suggestions that DNA teaches us. That is why these post-conviction DNA cases are so important. There is a Justice NIJ report, ``A Guide for Law Enforcement on Eyewitness Evidence,'' that sets out some recommendations that I think would greatly reduce the conviction of the innocent without in any way reducing correct identifications. It is a real series of recommendations here that advances justice. Be generous to us in our ability to identify these miscarriages with DNA. We will learn a lot about the system and how to fix it. Senator Sessions. Well, I agree. It is just scary if that is all you have is an eyewitness. There is one othercase that I knew, and I talked to the mother, a convenience store robbery. The man was at her home and he came outside and the victim identified him, and he was tried and convicted and he was at home with her all night, and she knew he didn't do it. Eventually, they overturned the conviction and he was released, but he served, unfortunately, some time in jail. That was an eyewitness identification that was somewhat troubling. Mr. Clarke. Actually, in that vein, Senator Sessions, if I might, I think one of the benefits of this experience has been a, I will call it healthy skepticism that jurors have about eyewitness identification. I mean, there is an expression that I am sure you are familiar with and we are all familiar with who have tried cases before: give me a good circumstantial evidence case any day over eyewitness identification. Senator Sessions. You are exactly right. You give me the briefcase, the pistol, and the money from the bank, and you can have somebody saying that is the guy. In fact, both of those people looked alike when they were put in the lineup. They had the same brown hair and receding hairline, and the same thin features, not exactly, but you could see how a teller with good faith could make an error. I would offer into the record a letter to this committee from the National Association of Attorneys General, signed by 30 attorneys general asking us to be cautious with the Leahy legislation. So I would offer that into the record. Senator Sessions. Anything else you have, Senator Leahy? We have a vote going on, I believe. Senator Leahy. We had one witness that we had asked to have before us, Calvin Johnson. He was exonerated by DNA after 16 years in prison. I will put his handwritten letter in the record, but let me just take a moment to read from it. He speaks about being released when they found they had the wrong person and the Innocence Project released him on DNA evidence. Just listen to the last part of his letter. ``But at 42 years of age, I have so much catching-up to do. Where would I have been if those 16 years had not been stolen from me? Would I have a family of my own? Would I own my own home? Would I have money saved for my children's future? Could I go to a bank and obtain a loan? My answer is yes. And now after 16 years, with no family of my own, no home of my own, no real credit established, all I want is the opportunity to fulfill my dreams, to help my parents in the later years of their life, to live the American dream, and to be a productive and active citizen in our society.'' [The letter referred to follows:] [GRAPHIC] [TIFF OMITTED] T4753A.022 [GRAPHIC] [TIFF OMITTED] T4753A.023 [GRAPHIC] [TIFF OMITTED] T4753A.024 [GRAPHIC] [TIFF OMITTED] T4753A.025 [GRAPHIC] [TIFF OMITTED] T4753A.026 Senator Leahy. Frankly, being innocent, being locked, whether facing the death penalty or life imprisonment, being in the situation Mr. Fritz was, being in the situation Calvin Johnson was, I suspect that if that happened to any member of the United States Senate, he or she would probably go insane. And I think that we owe it to all these people to do the right thing. Mr. Stevenson, there is some suggestion that the appropriate standard for counsel is the standard announced by the Supreme Court in the Strickland case. Do you agree with that? Mr. Stevenson. No. I think we have to do better than the way in which that decision has been interpreted. Even the Court I think is beginning to rethink that, as the most recent decision handed down a few months ago suggests. We can do a lot better, and I don't think there is much disagreement about how we can do that. It is just can we get the resolve to make it happen. Senator Leahy. I will put in the record a memo of my own, Mr. Chairman, saying how my bill does respect State sovereignty and does not violate any federalism principles. [The memo referred to follows:] Memo of Senator Patrick J. Leahy the effect of the innocence protection act on state sovereignty In the view of former Associate Deputy Attorney General under President Reagan, Bruce Fein, the Innocence Protection Act of 2000 ``respects our traditions of federalism in the field of criminal justice, and represents a measured and fact-bound response to the documented truth-finding deficiencies in death penalty and sister prosecutions, especially where DNA evidence might be conclusive on the question of innocence.'' Any concern that this legislation intrudes on state sovereignty and state interests in law enforcement is misplaced. On the contrary, as detailed in the following section-by-section analysis, the bill addresses serious problems in the criminal justice system in a way that respects the states and complements their own efforts on the same fronts. Title I Section 102: DNA Testing in the Federal Criminal Justice System. The first section would ensure that DNA testing is available in appropriate cases in federal court and would not affect the states at all or implicate state interests of any kind. Recent reports establish that innocent men and women are erroneously convicted and sentenced in a disturbing number of cases. Congress certainly has authority and responsibility to do something about that. This section would constitute a careful, measured approach and sets forth only the most basic elements of an effective DNA testing scheme. Section 103: DNA testing in State Criminal Justice Systems. This second section would encourage the states to make DNA testing available in appropriate cases in state court, under conditions and according to procedures that parallel the standards and processes that Sec. 102 would establish for federal criminal cases. Importantly, however, this section would only encourage the states to act; it would not require them to do so. Under this section, the states would have to give assurances that they make DNA testing available as a condition to their eligibility to receive federal funds from specified federal assistance programs. If a state preferred to do nothing regarding DNA testing, it would have the option of simply forgoing an application for funds under any of the listed programs. Congress sometimes enacts ``unfunded mandates,'' i.e., requirements that the states undertake costly activities with no federal financial assistance. Section 103 avoids that problem. In effect, this section would merely establish that states receiving funds from one of the specified programs must devote some of that federal money to DNA testing. To complain that this section would intrude upon state sovereignty is to argue that the states, rather than Congress, are entitled to decide how federal money will be spent. Moreover, Sec. 103 makes it clear that states could qualify for federal funds by establishing a DNA testing scheme that goes no further than the bare-bones system that Sec. 102 would create for federal cases. The states would have to preserve biological material for testing, ensure that testing occurs in appropriate cases, and give defendants an opportunity to present exonerating test results in a hearing in state court. The scheme is carefully thought out and conditioned in various ways that forestall needless expense and delay. For example, a state may destroy biological material if a defendant does not make a timely application for DNA testing. And, in any case, DNA testing need only be undertaken if a state court first determines that there is a chance that testing will produce exonerating results. A few states already have comparable DNA testing programs. Other states have similar programs on the drawing board. Certainly, those states have no complaint about Sec. 103. Only states that thus far have not addressed the demonstrable problem of erroneous convictions would be affected. Again, those states would only be invited to act by the promise of federal funding. Section 104: Prohibition Pursuant to Section 5 of the 14th Amendment. This third section would address a common problem in many state criminal justice systems. Once criminal defendants are convicted and sentenced, they typically have only a specified period of time in which to seek a new trial on the basis of newly discovered evidence. Time limits of that kind make sense in most instances. Yet they were enacted at a time when DNA testing was unheard of. As states have come to understand the value of DNA testing, they have made testing available in ongoing and future cases. But many states have made no provision for older cases, in which defendants may have been wrongly convicted and sentenced in the absence of DNA testing that is only possible now. This section would require states to lift the time limits that ordinarily apply and allow prisoners in some cases to present newly discovered DNA evidence. No one doubts that it would violate the Fourteenth Amendment for a state to imprison or execute an innocent person. Section 104 is a modest measure meant to forestall that by eliminating filing deadlines as a bar to the presentation of DNA test results in appropriate cases. The bill identifies and addresses any concerns that the states might have. Section 104 would only create a right to DNA testing under compelling conditions and a right to present exonerating results to a state court or, perhaps, a state administrative agency, despite a filing deadline that ordinarily would bar a newly discovered evidence claim. It contains numerous conditions that protect legitimate state interests. It states, for example, that prisoners are entitled to testing only if there is some biological material related to their cases, if that material is in the state's custody, and if it has not previously been tested according to the most effective procedures. Even then, a state need not grant a prisoner's request if a state court concludes that testing could not produce results establishing a ``reasonable probability'' that a prisoner was erroneously convicted or sentenced. Section 104 also states that prisoners are entitled to present test results to a state court or agency only if the results are ``noncumulative'' and ``exculpatory.'' Thus this section protects the states from frivolous applications for DNA testing that can make no difference. The enforcement provision in Sec. 104 also respects state sovereignty. That section does not authorize federal courts to consider the merits of claims resting on exonerating DNA evidence. Itonly authorizes prisoners to file suit in some court (federal or state), asking for an order requiring the state to allow testing and a chance to present favorable results to a state court or agency. Title II Section 201: Amendments to Byrne Grant Programs. This initial section in Title II is another conditional spending provision. It would encourage the states to provide effective legal assistance to indigent defendants in death penalty cases. The Anti-terrorism and Effective Death Penalty Act of 1996 also invited the states to improve the legal services available in capital cases. That Act promised the states that if they established effective systems for providing counsel at the so- called ``post-conviction'' stage of state proceedings, the states would receive certain procedural advantages when and if death penalty cases reached the federal courts. Unfortunately, that provision in AEDPA was unsuccessful. Apparently, the procedural advantages it promised in federal court provided an insufficient incentive to persuade the states that they should adopt a qualifying scheme for counsel in state post- conviction proceedings. This section in our bill is more ambitious than the provision in AEDPA, inasmuch as it hopes to convince the states that they should improve counsel services at all stages of death penalty prosecutions. Importantly, however, Sec. 201 offers what AEDPA withheld--economic incentives. There is ample evidence that the states often provide poorly prepared and compensated attorneys to indigents in death penalty cases, that those attorneys contribute to an extraordinarily high rate of errors, and that a great deal of time and effort is required thereafter to correct erroneous convictions and sentences. The reason typically given for these difficulties is that an effective defense counsel system is expensive. Section 201 offers the states the financial assistance they need. This section would establish the basic outlines of an qualifying system, makes states that create such a scheme eligible for federal funds, and, again, give states that prefer not to participate the option of doing nothing. Section 202: Effect on Procedural Default Rules. This section would apply only in cases arising in states that choose not to improve their systems for providing defense counsel to indigents in the manner described in Sec. 201. The premise, then, is that in the cases to which this section would apply, prisoners either had no counsel in state court at all or had counsel without the assurance of quality representation. In cases of that kind, this section would instruct federal courts not to assume that the state courts arrived at accurate findings of facts and not to hold prisoners accountable for failing to raise federal constitutional claims at the appropriate time. The idea, of course, is that effective defense counsel should ordinarily see that the facts are fully developed and that all available claims are raised. The federal courts should not assume that those functions were performed in cases in which effective counsel was not present. The bill is scrupulous to respect competing state interests. Section 202 would not authorize federal courts to award any kind of legal relief to state prisoners. It would only avoid corrupting federal court consideration of constitutional claims via assumptions about state proceedings that are unwarranted. Again, this section would affect only cases in which states have decided, for their own reasons, that they prefer this result to the alternative of supplying effective defense attorneys to capital defendants. Section 203: Capital Representation Grants. This third section continues the basic theme in the bill: to encourage the states to improve their justice systems in exchange for the financial wherewithal to do it. Section 203 instructs the Administrative Office of United States Courts to make awards and enter contracts with state agencies and private organizations for the purpose of improving the representation that indigents receive in death penalty cases. This section avoids the ``unfunded mandate'' problem in yet another way. It would not effectively ear mark federal funds from established programs for this purpose. It would authorize new, additional funding, available upon application without additional conditions. Of course, no state is obliged to apply for the new grants. There is always the option of doing nothing. Title III Section 301: Increased Compensation in Federal Cases. This section deals only with men and women who were erroneously convicted in federal court and thus affects no state interests. There is already a statute providing for compensation in these cases. The effect of Sec. 301 is only to raise the maximum limits to bring them into line with current values. 302: Compensation in State Death Penalty Cases. This section affects the states, but again, only by conditioning federal funds on a state's willingness to cooperate. Many states already have programs by which innocent people may be compensated for the time they spend in prison. This section would encourage state that have no such schemes to establish them. States that want federal funds from the Criminal Justice Facility Construction Grant Program would have to give assurances that they have a reasonable system for compensating erroneously convicted people. Section 302 respects state prerogatives at two levels. First, this section recognizes that a state may choose not to compensate innocent people and allows such a state to take that position. Second, if a state chooses to establish a compensation scheme, this section leaves it to the state to decide how much compensation to provide. Title IV Section 401: Federal Death Penalty Prosecutions. This first section in title IV recognizes that many states do not employ capital punishment and that the citizens in those states may object if federal prosecutors seek the death penalty in federal cases that arise locally. This section would not absolutely bar federal death penalty prosecutions in noncapital states. It would, however, limit such prosecutions to cases in which state authorities are unable or unwilling to press state charges that would not lead to the death penalty. This plainly is an instance in which our bill is at pains to acknowledge and respect state interests. No state that employs the death penalty would be affected by this provision. It would only affect states that do not use capital punishment and, in those states, would reconcile federal death penalty prosecutions with local policy against the death penalty. Section 402: Alternative of Life Imprisonment Without Possibility of Parole. This technical provision would bring an earlier federal death penalty provision into line with more recent federal statutes and would affect no state interests. Section 403: Right to an Informed Jury. This provision would encourage the states to see that juries in capital cases understand the sentences that are available once a defendant is convicted in a capital case. The point is to avoid jury confusion. Juries sometimes believe, for example, that if a defendant is not sentenced to death, he or she may escape punishment altogether or may receive a sentence to prison that carries the very real possibility of parole within a few years. The Supreme Court has grappled with cases in which juries were given piecemeal information about sentencing options, and the results have not be satisfying. Section 403 would resolve the difficulties in those cases straightforwardly, simply by encouraging the states to give juries a complete and accurate account of the possibilities. Here, too, our bill respects a state's entitlement to take a different position, provided the state conforms to the Constitution. This section is not an ``unfunded mandate.'' It would only encourage the states to provide juries with complete information as a condition for the states' eligibility for federal funding under the Violent Crime Control and Law Enforcement Act. Section 404: Annual Reports. This Section would instruct the United States Attorney General to collect data regarding capital punishment. The Attorney General's reports would assist the states in evaluating the success of their policies. Section 405: Discretionary Appellate Review. This section would cure a problem with one of the federal statutes governing federal habeas corpus proceedings: 28 U.S.C. Sec. 2254(b). That statute provides that a state prisoner must exhaust all the ``available'' avenues for pressing a federal claim in state court before advancing that claim in federal court in a petition for a writ of habeas corpus. In many states, defendants are able to seek appellate review regarding a claim in the state's highest court, but that court may decline, in its discretion, to entertain it. Typically, state supreme courts refuse to consider ordinary claims and reserve their time and effort for claims of broad significance. Accordingly, while a petition for discretionary review at the state supreme court level is ``available'' to prisoners who have ordinary claims, state supreme courts frequently explain in their rules that claims of that nature should not be advanced. Petitions containing common claims only clog state supreme court dockets, taking up time and resources that might be devoted to claims that state supreme courts wish to examine. In O'Sullivan v. Boerckel, the United States Supreme Court concluded that Sec. 2254(b) nonetheless requires prisoners to petition state supreme courts for discretionary review of ordinary claims. If prisoners fail to do so, they typically forfeit the opportunity to advance those claims in federal court. The Court acknowledged that its ruling would not be welcome in many states, inasmuch as it requires prisoners actually to defy state supreme court rules discouraging ordinary claims. Still, the Court construed Sec. 2254(b) to contemplate that discretionary review in a state supreme court must be pursued, so long as that procedure is ``available'' in the state concerned. Section 405 would amend Sec. 2254(b) to state that discretionary review in a state supreme court is not an ``available'' state court avenue that must be exhausted before a prisoner goes to federal court. This manner of resolving this problem is sensitive to state prerogatives. It would prevent the federal statutory requirements prisoners must satisfy in order to obtain access to federal court from frustrating the appellate processes that the states have chosen for proceedings in their own courts. Importantly, Sec. 405 would not bar a state from making appellate review in its highest court mandatory. In those states, prisoners would have to seek appellate review with respect to both ordinary and exceptional claims at the state supreme court level. Again, then, the bill allows the states to make the choice they think best. Section 406: Sense of the Congress Regarding the Execution of Juvenile Offenders and the Mentally Retarded. This resolution would not have the force of federal law and thus would not affect state interests nor any operational impact on states that regard the execution of juveniles and mentally retarded persons as sound public policy. Senator Sessions. I think it is time for us to go vote. We have got just a few minutes. I would just conclude by saying something that I think is fundamentally important for the American people to understand. In the overwhelming number of cases that come forward, there is strong to overwhelming evidence of guilt. There are some that are close calls. I think in some ways, if I could have a magic wand, I would focus more on the close cases than we do on the others. But every case now is provided with attorneys. They go file sometimes 15, 16 years. We had two executions in Alabama when I was attorney general; one was 15 and one was 18 years in the making, with appeals going on for that long. I think we need to bring finality to the cases in which there is a powerful evidence of guilt, and we should be open to evidence that would indicate some may not be guilty. I think that is the philosophy we ought to take. Thank you very much. It was an excellent panel. We are adjourned. [Whereupon, at 2:30 p.m., the committee was adjourned.] APPENDIX ---------- Questions and Answers ---------- Clatsop County, District Attorney's Office, Astoria, OR, July 7, 2000. Hon. Patrick Leahy, U.S. Senator, Committee on the Judiciary, Washington, DC. Dear Senator Leahy: I have received an extensive list of questions which I will try to answer to the best of my abilities. As I said when I testified I do not claim to be a DNA expert and manage a prosecutor's office with five deputies and eleven support staff, so my perspective is that of a working prosecutor. Responses of Joshua K. Marquis to Questions From Senator Leahy Answer 1. I read about your bill in early May and the endorsement given by Senator Gordon Smith from a clipping service I receive from the National District Attorneys Association. I was fixed a copy of S. 2073 on May 12, 2000 by Senator Smith's staff and after I read it I asked to meet with the Senator at his office in Portland, Oregon. I was later contacted by the Chairman's staff, who faxed me a copy of the un- numbered ``Criminal Justice Integrity Act'' proposal. They asked me for constructive criticism of their proposal and to review his proposal and the strengths of both bills. I spoke extensively with Senator Smith's staff before coming to Washington and furnished them with a draft of my testimony before I submitted it to committee staff. Answer 2, 3 and 4. We have a bi-annual legislature which discussed but did not pass any post-conviction DNA legislation in the 1999 session, largely because it is simply unnecessary in Oregon. We have never had a capital case since 1976 in which a defendant claimed wrongful conviction, much less one involving DNA. Therefore the number of years capital defendants were wrongfully incarcerated in Oregon is zero. We have had three non-capital murder cases in recent years in which the local prosecutors joined with defense attorneys to ensure the release of defendants about whom serious doubts were raised. Those prosecutors, from three different large counties in Oregon, met their ethical duties with honor. I must admit I resent the implications of Mr. Scheck and others that it is the criminal defense bar that acts as the last defense for the ``actually innocent.'' As a former prosecutor yourself, I am sure you know my profession's mandate is to ``seek not merely a conviction, but justice above all else.'' Answer 5. Unlike highly unusual and ill-advised law just passed in Illinois, Oregon has no specific law mandating preservation of evidence. A prosecutor's failure to maintain evidence would result in swift and fatal results to his case . . . it would likely be dismissed. I believe it would be inadvisable to create criminal penalties for public servants who accept low pay, when actual official misconduct is already punishable, and can even be a capital offense in states like California. There is no more need to ``mandate preservation of evidence'' through federal statute than to pass a law that says it's wrong to lie to a judge. Both are self-evident, with dire consequences to the prosecutor if violated. Answer 6. The Oregon Judicial Department's State Court Administrator and the staff of the Indigent Defense program manage a rigorous multi-tiered screening and qualification process to ensure that lawyers appointed to many levels of felony indigent defense are peer-reviewed and screened by local judges, who are NOT responsible for the financial costs of indigent defense which is paid centrally by the state court administrator. As I testified before your committee Oregon spends about $1.70 for indigent defense contrasted with the $1 spent by the state and counties for all prosecution services (indigent AND retained defendants). You expressed some disbelief when I said I had been outspent 100 to 1 in a capital case. I would refer you to the one case in which I have sought and obtained the death penalty (State of Oregon v. Randy Guzek, Deschutes County, 1991, 1997). In that case, even if you include ALL my salary, that of my support staff, the police officers, and trial preparation costs, prosecution costs may have totaled $20,000 over two trials while defense costs (still under seal at the request of the defense) are near or over $2 million. Answer 7. We have so few ``wrongfully convicted'' defendants in Oregon that no-one has seen the need for special legislation. In one recent case a city paid over a million dollars to a man whose murder conviction (non-capital) was set aside, even though Oregon law caps state liability at $100,000. Answer 8. Oregon receives NO federal funds for indigent defense. Answer 9 a. The cost of DNA testing is hard to estimate since almost all testing is done by the Forensics Division of the Oregon State Police who will perform tests for both prosecution AND defense at no cost--beyond the budgets already set aside for the state police (to give you some perspective our state spends about 7 percent of our state's budget on ALL lawenforcement functions (except prisons which are another 7 percent) as opposed to about 57 percent for education. We have built a single new prison in the last ten years. Answer 9b. the Oregon department of Corrections estimates the average inmate per year cost at just under $24,000 a year. Answer 10. I think Congress can serve a critical role by setting an example by mandating the way federal cases are handled, but am concerned about huge unfunded federal mandates like federally-drafted indigent defense standards. But there is a difference between what a defense lawyer will call ``newly discovered evidence,''--the interminable number of jail-house lawyers who suddenly ``remember'' an statement that might cloud the conviction of a cell-mate, and ``actual innocence,'' a standard I believe espoused by Mr. Scheck's Innocence Project and a standard I do not consider too high. Answer 11. The Vasquez case once again demonstrates the high ethical standards shown by the overwhelming number of America's prosecutors when faced with credible evidence of ``actual innocence.'' I don't believe any legislation is a substitute for the requirement for career prosecutors to follow their ethical duty to protect the innocent and prosecute the guilty--the motto of the NDAA when you served as Vice President. Answer 12. Mr. Scheck likes to derisively refer to what he refers to as the ``unindicted co-ejaculator'' theory. The Keri Kotler case would be an excellent one to ask Mr. Scheck about. In that case he secured not only Mr. Kotler's release, but also an almost 2 million dollar settlement for wrongful arrest and conviction for a highly distinctive rape. Within weeks of getting his windfall Mr. Kotler raped another woman under virtually identical circumstances. This time Kotler left lots of his DNA on the victim. Scheck now posits that the police must have somehow gathered Kotler's DNA in a spray bottle and planted it on the victim. There are cases in which an ``exculpatory DNA result'' will not answer the more fundamental question of actual innocence. I do not think actual innocence is too high a standard when we are speaking of post-conviction, post-appeal testing procedures. Otherwise we are inviting virtually every person in prison to rehash their case on the grounds that a DNA test might not establish their innocence, but it would have helped them impeach a witness on a collateral matter or improved their argument at sentencing. I strongly believe that the goal of freeing the wrongfully convicted means those who didn't commit the crime. Answer 13a. WAS If DNA was available and his lawyer was competent (and not subject to post conviction relief for ineffective assistance of counsel) I would not expect that the chairman's bill would deal with that situation. As I said before, those cases in which real, actual evidence of innocence is presented, has been largely met by co-operation from prosecutors. Mr. Scheck can cite a handful of un-cooperative prosecutors out of literally millions of felony convictions over the last couple decades. Answer. 13b. In my state a defendant whose lawyer failed to provide adequate counsel could seek post-conviction relief. Answer 13c and d. STATE habeas corpus relief would normally be available to defendants in such cases. In Oregon our state appellate courts tend to extend more rights to the accused than federal courts mandate. Answer 14. I absolutely agree that trial courts should give complete and truthful descriptions of the possible sentences a capital or murder defendant cases (assuming the jury is asked to set the penalty as it does in aggravated murder cases in Oregon). In my state, DEFENSE lawyers have fought ferociously to keep judges from instructing juries as to what life with parole means or what a sentence to the Psychiatric Security Review Board might mean where someone found guilty but insane). Answer 15. In the Winship case Justice Harlan echoed a percept virtually all Americans share--``Better to let ten guilty go free rather than convict an innocent one.'' The next logical question, which no-one wants to ask, should be ``is it better to let 10,000 guilty murderers free to insure that an innocent man might not be convicted?'' What level of risk are we willing to take? You said, quite reasonable, that you would never fly an airline that had a 68 percent risk of crashing, citing the Liebman study. As Senator Biden so ably pointed out that study did not claim that even a fraction of those claimed 68 percent were innocent men. My rhetorical question is whether we would be willing to take a 2 out of 3 risk that you were setting a murderer free every time we tried someone for such a crime. I greatly appreciate the honor of having appeared before your committee and appreicate your interest in the issues than concern all Americans of good will. As an active life-long Democrat I am glad to see a diversity of opinion on this critical issue. Respectfully submitted, Joshua Marquis, District Attorney. ______ Clatsop County, District Attorney's Officer, Astoria, OR, July 7, 2000. Hon. Diane Feinstein, U.S. Senator, Committee on the Judiciary, Washington, DC. Dear Senator Feinstein: I think your idea of placing a date certain in any DNA legislation is an excellent idea in keeping with the need to use precise language that guarantees that such appeals are used to free only the ``actually innocent,'' not hordes of criminals seeking to exploit a well-intentioned loophole in our criminal laws. As a career prosecutor and former speech-writer to John Van de Kamp, I greatly appreciate your considered and reasoned questions about the various DNA bills before the Judiciary Committee. I am confident that a bill can be worked out that most everyone can live with and accomplish the goal or prosecuting the guilty and protecting the innocent. Sincerely, Joshua Marquis, District Attorney. ______ Response of Dennis Fritz to a Question From Senator Feinstein Question 1. To avoid any questions about whether DNA technology was ``available'' at the time of trial, do you think that putting a date certain in the bill would be appropriate--for instance, allow only cases tried before 1999 to qualify for post-conviction testing? Can we safely say that DNA technology is advanced enough to institute such a date cutoff? Answer 1. In the first place, I don't think that the question of whether or not DNA testing was ``available'' at the time of trial should be avoided. If DNA testing was not available at trial, and DNA evidence does exist for such testing purposes, then the evidence should be rightfully tested. I feel that putting a date certain in the bill would be too restrictive and would not allow defendants' a full and fair exposure to the actual testing process. Although I do feel that DNA testing is advanced enough to accommodate such a date cutoff restriction, I believe that such a restriction would limit a certain number of wrongfully convicted inmates to the testing process. If this number was just one (1) wrongfully convicted inmate, then it would be immoral and unjust to put such a type of restriction on a human being's availability to have the DNA testing done in this case. ______ Responses of Dennis Fritz to Questions From the Senate Committee on the Judiciary Question 1. Have you received any compensation from the State of Oklahoma for the 12 years that you spent in prison? Have you received any official apology? Answer 1. No, I have not received any compensation whatsoever from the State of Oklahoma since my incarceration and release, nor have I ever received any verbal or written formal apology concerning my false and unjust conviction. Question 2. To your knowledge, has your co-defendant, Ron Williamson, received any compensation or apology for the years he spent on death row? Answer 2. To my knowledge, my co-defendant, Ronald Williamson, has never received any compensation or apology for the years he spend on death row. Question 3. Chairman Hatch has proposed legislation that would give prisoners a limited right to seek DNA testing. But unlike the Leahy- Smith-Collins bill, which authorizes the appointment of counsel for indigent applicants seeking DNA testing, the Hatch proposal contains no such protection; even death row inmates suffering from mental illness would be forced to navigate the legal system alone. Do you believe that you or Ron Williamson would have been able to obtain DNA testing without the assistance of counsel? Answer 3. Absolutely not! Due to the fact that I had not received the death penalty, I was not afforded the opportunity for representation of counsel past my state direct appeal. Therefore, in having to do my own case, I repeatedly motioned both state and federal Courts for the opportunity to inspect the crimescene evidence for DNA testing. On every such occasion, I was denied by all Courts whereby it was started that I did not have a constitutional right to the testing. Without being able to fully speak for the co-defendant, Ronald Williamson, I can specifically state that in my case circumstances described above, the chances for me to have received DNA testing were zero as my denied motions will reflect. Only after Mr. Barry Scheck and Peter Neufeld entered their record of appearance, were they able to get the Court approved DNA testing in both my case and the co-defendants. Question 4. Do you feel that the criminal justice system worked in your case, since you were eventually able to prove your innocence? Answer 4. No! The only reason that the criminal justice system did work in my case was because the co-defendant received a new trial on Habeas whereby the district attorney proceeded to initiate the DNA testing without wanting to additionally include myself in the testing process. At that time, I had to file restraining motions to stop the district attorney and Oklahoma State Bureau of Investigation from proceeding with the testing, until I had a chance to include my representative Innocence Project to protect and assure the proper testing process. 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