[Senate Hearing 106-1061]
[From the U.S. Government Publishing Office]
S. Hrg. 106-1061
POST-CONVICTION DNA TESTING: WHEN IS JUSTICE SERVED?
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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
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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
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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?
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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
------------------------------------------------------------------------
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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.)
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\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'').
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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\
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\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.''].)
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(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.
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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\
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\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.
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\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\
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\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.
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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:]
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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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