```

[Senate Hearing 106-1061]
[From the U.S. Government Publishing Office]

                                                       S. Hrg. 106-1061

          POST-CONVICTION DNA TESTING: WHEN IS JUSTICE SERVED?

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 13, 2000

                               __________

                          Serial No. J-106-88

                               __________

         Printed for the use of the Committee on the Judiciary

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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

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of 
  Delaware.......................................................    68
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio, 
  prepared statement.............................................    11
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................    85
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................    80
Hatch, Hon. Orrin, a U.S. Senator from the State of Utah.........     1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     4
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................    91
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....    95
Thurmond, Hon. Strom, a U.S. Senator from the State of South 
  Carolina, prepared statement...................................    57

                               WITNESSES

Baird, Hon. Charles F., Former Judge, Texas Court of Criminal 
  Appeals, and Co-Chair, National Committee to Prevent Wrongful 
  Executions, Austin, TX.........................................    49
Edmondson, Hon. W.A. Drew, Attorney General, State of Oklahoma, 
  Oklahoma City, OK..............................................    17
Camps, Enid, Deputy Attorney General, State of California, on 
  behalf of Attorney General Bill Lockyear, Sacramento, CA.......    41
Clarke, George, Deputy District Attorney, San Diego County, CA, 
  and Member National Commission of the Future of DNA Evidence, 
  San Diego, CA..................................................   105
Fritz, Dennis, Kansas City, MO...................................   115
 Levin, Hon. Carl, a U.S. Senator from the State of Michigan, 
  prepared statement.............................................    14
Marquis, Joshua, K., District Attorney, Clatsop County, OR, and 
  Member, Board of Directors, National District Attorneys 
  Association, Astoria, OR.......................................    51
Scheck, Barry C., Professor of Law, and Co-Director, Innocence 
  Project, Benjamin N. Cardozo School of Law, and Member, 
  National Commission on the Future of DNA Evidence, New York, NY   100
Smith, Hon. Gordon H., a U.S. Senator from the State of Oregon...    12
Spitzer, Hon. Eliot, Attorney General, State of New York, New 
  York, NY.......................................................    36
Stevenson, Bryan A., Director, Equal Justice Initiative of 
  Alabama, and Assistant Professor, New York University School of 
  Law, Montgomery, AL............................................   108
Wooley, James, Baker and Hostler, and Member, National Commission 
  on the Future of DNA Evidence, Washington, DC..................   117

                                APPENDIX
                         Questions and Answers

Responses of Joshua K. Marquis to Questions from Senator Leahy...   143
Responses of Joshua K. Marquis to Questions from Senator 
  Feinstein......................................................   145
Responses of Dennis Fritz to Questions from Senate Committee on 
  the Judiciary..................................................   146
Marquis, Joshua, Clatsop County, District Attorney's Office:
    letter to Senator Leahy......................................   143
    letter to Senator Feinstein..................................   145

                 Additional Submissions for the Record

A Broken System: Error Rates in Capital Cases, 1973-1995.........   195
Convicted by Juries, Exonerated by Science: Case Studies in the 
  Use of DNA Evidence to Establish Innocence After Trial.........   147
Excerpt from Habeas Corpus Reform Act of 1993....................    69
Fein, Bruce, Former Associate Deputy Attorney General, letter and 
  attachment.....................................................     7
Johnson, Calvin, letter..........................................   132
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  memorandum.....................................................   137
Postconviction DNA Testing: Recommendations for Handling Requests   165
Sessions, William S., Attorneys & Counselors at Law, San Antonio, 
  TX, letter.....................................................   219
Yackle, Larry W., Professor of Law, Boston University, Boston, 
  MA, letter.....................................................   213

 
          POST-CONVICTION DNA TESTING: WHEN IS JUSTICE SERVED?

                              ----------                              

                         TUESDAY, JUNE 13, 2000

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:04 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch (chairman of the committee) presiding.
    Also present: Senators Thurmond, Grassley, Sessions, Leahy, 
Biden, Feinstein, Feingold, and Schumer.

OPENING STATEMENT OF HON. ORRIN HATCH, A U.S. SENATOR FROM THE 
                         STATE OF UTAH

    The Chairman. Let's begin. This is a very important 
hearing. I want to welcome you all to the Senate Judiciary 
Committee's hearing on the important issue of post-conviction 
DNA testing, entitled ``Post-Conviction DNA Testing: When Is 
Justice Served?''
    No one here today will quarrel with the assertion that 
post-conviction DNA testing should be made available when it 
serves the ends of justice. Reaching agreement on a practical 
definition for justice, however, is a difficult and different 
matter. After all, justice does mean different things to 
different people.
    For the survivors of brutal crimes, justice may mean the 
carrying out of a court-imposed sentence without prolonged 
appeals. For others, especially those who are morally and 
vehemently opposed to capital punishment, justice may mean the 
indefinite delay of constitutionally-imposed death sentences.
    As Members of Congress, we do not have the luxury of 
choosing one side or the other. As the elected representatives 
of the people and as guardians of the Constitution, we have an 
obligation to balance the adequacy of procedural protections 
afforded to defendants against the need for integrity and 
finality of decisions in State and Federal courts. It is my 
hope that in holding this hearing, we can take a first step 
toward reaching consensus on how best to strike this balance in 
the area of post-conviction DNA testing, and in doing so 
serving, of course, the cause of justice.
    Speaking of doing what is just, it is only right that at 
the outset of this hearing I thank Senator Leahy for his 
interest and leadership in this important topic. Those who know 
Senator Leahy as I do appreciate his knowledge of the law, his 
passion for the Constitution, and his willingness to take 
principled positions.
    He was among the first Members of Congress to become 
involved in this issue, and he came to me several weeks ago and 
urged this committee to undertake an examination of this issue. 
His bill, the Innocence Protection Act, has appropriately 
sparked a discussion over several important issues associated 
with capital punishment, and I think we should all be thankful 
for his initiative and his leadership.
    In the last decade, DNA testing has evolved as the most 
reliable forensic technique for identifying criminals when 
biological evidence is recovered. While DNA testing is standard 
in pre-trial investigations today, the issue of post-conviction 
DNA testing has emerged in recent years as the technology for 
testing has improved.
    In the last month, two prominent Governors, George W. Bush 
of Texas and James Gilmore of Virginia, ordered DNA testing for 
defendants on death row. The Governor of Illinois put a 
moratorium on death sentences being carried out. I might say 
while the exact number is subject to dispute, post-conviction 
DNA testing has exonerated prisoners who were convicted of 
crimes committed before DNA technology existed. In some of 
these cases, the post-conviction DNA testing that exonerated a 
wrongfully convicted person provided evidence that led to the 
apprehension of the actual criminal.
    Advanced DNA testing improves the just and fair 
implementation of the death penalty. While reasonable people 
can differ about capital punishment, it is indisputable that 
advanced DNA testing lends support and credibility to the 
accuracy and integrity of capital verdicts. In short, we are in 
a better position than ever before to ensure that only the 
guilty are executed. All Americans, supporters and opponents of 
the death penalty alike, should recognize that DNA testing 
provides a powerful safeguard in capital cases. We should be 
thankful for this amazing technological development.
    I believe that post-conviction DNA testing should be 
allowed in any case in which the testing has the potential to 
exonerate the defendant of the crime. To ensure that post-
conviction DNA testing is available in appropriate cases, I, 
along with 13 other Senators, plan to introduce the Criminal 
Justice Integrity and Law Enforcement Assistance Act. This 
legislation will authorize post-conviction testing in Federal 
cases and encourage the States through a new DNA grant program 
to authorize post-conviction testing in State cases. In 
addition this legislation will provide needed resources to help 
States analyze DNA evidence from crime scenes and convicted 
offenders, and conduct post-conviction testing.
    The legal problem of post-conviction testing is fairly 
straightforward. Under current Federal and State law, it is 
difficult to obtain post-conviction DNA testing, and new trials 
based on the results of such testing, because of time limits on 
introducing newly discovered evidence. These time limits are 
based on the fact that evidence becomes less reliable due to 
the passage of time.
    I believe that time limits on introducing newly discovered 
evidence should not bar post-conviction DNA testing in 
appropriate cases because DNA testing can produce accurate 
results on biological evidence that is more than a decade old. 
Under my legislation, these time limits will not prevent post-
conviction DNA testing, and motions for a new trial based on 
such testing, in cases where testing has the potential to prove 
innocence.
    Furthermore, once post-conviction DNA testing is performed, 
the results of such testing should be considered as newly 
discovered evidence under established precedents and 
procedures. If post-conviction testing produces exculpatory 
evidence, the defendant should be allowed to move for a new 
trial, notwithstanding the time limits on such motions 
applicable to other forms of newly discovered evidence. Courts 
should weigh a motion for a new trial based on post-conviction 
DNA testing results under the established precedents for 
motions for a new trial based on newly discovered evidence. In 
short, there is no need to create an additional legal procedure 
to consider this evidence, provided the time limits are waived 
in this narrow context.
    In the last 30 years, America's criminal justice system has 
experienced the crippling impact of seemingly endlesshabeas 
corpus appeals and frivolous prison litigation. In recent years, 
Congress passed and President Clinton signed into law legislation to 
reform habeas corpus and prison litigation procedures. I am proud to 
have authored these landmark statutes. America is safer and our 
criminal justice system is stronger because of these reforms. I am 
convinced that a properly drafted post-conviction testing statute will 
provide testing in appropriate cases and will not undermine these 
recent reforms.
    But for some critics of our criminal justice system, post-
conviction DNA testing and the resulting exoneration of some 
wrongfully convicted persons serves as a spyhole through which 
one can observe a quote, ``system of law that has become far 
too complacent about its fairness and accuracy.'' We must 
remain vigilant in our efforts to ensure integrity and fairness 
at all levels of the system.
    Yet, for some, DNA testing serves as the foot in the door 
through which more aggressive, and I believe unwarranted 
reforms can follow, including a moratorium on the death 
penalty, an effective repeal of the habeas death row appeals 
reform of 1996, onerous Federal regulations for counsel in 
State capital cases, and more.
    Opponents of the death penalty believe the death penalty is 
on the defensive. They are promoting the tired arguments of the 
past and outdated and recycled studies in a coordinated effort 
to put capital punishment on trial. As Newsweek's Jonathan 
Alter recently opined in what the editors of the magazine 
called a Special Report, ``* * * assembly-line executions are 
making even supporters of the death penalty increasingly 
uneasy.''
    Well, assembly-line executions? That is pretty much 
trumpery as far as I am concerned. According to the Death 
Penalty Information Center, there are more than 3,670 convicted 
killers on death row in America. Since enactment of the 1996 
habeas death penalty appeals reform, 315 convicted murderers 
have been executed. Less than 10 percent of the people on death 
row have had their sentences carried out. There will likely be 
fewer executions this year than last year. Indeed, there were 
fewer executions in 1998 than there were in 1997. In the 
meantime, no one can point to a modern case where an innocent 
person has been executed.
    Now, I support capital punishment, but I believe it should 
be used only when, there is conclusive proof of guilt; the 
crime itself is so heinous or depraved that it warrants the 
ultimate sanction; and, there is no credible and appreciable 
evidence of discrimination.
    It is important to remember that 99.9 percent of capital 
cases are State crimes, not Federal crimes. In our Federal 
Republic, the issue of the death penalty in State cases is 
properly considered and determined by State governments. No 
prosecutor, attorney general, or governor wants to be 
responsible for the execution or imprisonment of an innocent 
person. We will hear testimony today about the steps our States 
are taking to address this issue, and as we hear the testimony, 
let's not forget the past.
    For decades, convicted prisoners, with the help of some of 
today's witnesses, abused the habeas corpus system in order to 
delay the imposition of just punishment. In my home State of 
Utah, for example, convicted murderer William Andrews delayed 
the imposition of a constitutionally imposed death sentence for 
more than 18 years. His guilt was never in question; he was not 
an innocent person seeking freedom from an unjust punishment. 
Rather, he committed a particularly heinous crime, a series of 
murders, and simply wanted to frustrate the demands of justice.
    What were the goals of Andrews' lawyers? I submit that his 
lawyers, and many lawyers who have represented death row 
inmates, saw their mission as making death penalty litigation 
so costly and protracted a prospect for the States that it 
would be effectively abolished. These ardent opponents of the 
death penalty, whose principled views and legal skills I 
respect, used capital resource centers and our Federal courts 
to effectively suspend the imposition of constitutionally and 
factually sound State death sentences. I am loathe to once 
again federally empower this type of activity.
    Manufactured delays breed contempt for the law and have a 
profound effect on the victims of violent crime. For the 
families of murder victims, each delay exacerbates the pain of 
losing their loved one. They are reminded that their son, 
daughter, spouse, or parent will never come home again. No 
birthdays, no holidays to celebrate, only the dreaded 
anniversary of a murder. So as we debate the future of capital 
punishment, we should also remember the past.
    I respect the views of the witnesses that we have today and 
look forward to hearing their testimony.
    So I will turn to the statement for the minority by Senator 
Leahy.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. Thank you, Mr. Chairman. This hearing today 
I hope is going to be the first of a series of hearings that 
might help focus the Congress' attention on steps we can take 
to help solve the national crisis in the administration of 
capital punishment. The hearing is really a first step, but an 
important first step, not just for capital cases but for public 
confidence in the fairness and integrity of our criminal 
justice system as a whole. In a democracy, if you do not have 
confidence in the integrity of a criminal justice system, it 
cannot operate.
    As the Columbia University study published this week 
showed, State and Federal judges have found over the past 25 
years that about two-thirds of death penalty trials nationwide 
have been rendered unreliable by serious constitutional errors, 
and about 5 percent of the cases in which defendants were 
originally sentenced to death have ended in verdicts of not 
guilty on re-trial.
    Now, I say that if we had a hospital where two-thirds of 
the surgeries were botched, that hospital wouldn't stay open 
very long. That is basically what has happened in this part of 
our criminal justice system, and that is what worries a lot of 
people because it attacks the very credibility of our criminal 
justice system.
    The system that the study reveals is one that routinely 
makes grave errors and then hopes haphazardly and belatedly to 
correct them years later by a mixture of State court review or 
Federal court review and a large dose of luck. As prosecutors, 
defense lawyers, a judge, and a victim of the system will 
testify today, we have cast-iron scientific proof that a 
significant number of people sentenced to death in America in 
the late 20th century had been absolutely, undeniably innocent.
    A system that works in one case out of three is simply not 
good enough. And while we do not know whether it hashappened 
yet, a system that sentences a significant number of entirely innocent 
people to death is bound to execute one of them sooner or later. 
Certainly, many have wrongfully suffered, and many continue to endure 
years and decades in prison for crimes they did not commit.
    Now, the American people know this. They understand the 
power of modern science in the form of DNA evidence to help 
prosecutors and innocent defendants alike to establish the 
truth about guilt and innocence and to save innocent lives.
    In a recent poll, more than 90 percent of Americans agreed 
with leaders like President Clinton, Governor Ryan of Illinois, 
Governor Glendening of Maryland, and Governor Bush of Texas, 
and with conservative columnist George Will, with former Reagan 
administration Department of Justice official Bruce Fein, and 
with the American Association of Public Health Physicians. They 
agree that DNA testing should be available to defendants and 
inmates in all cases in which it has the potential to establish 
guilt or innocence. The American people also know that while 
Illinois and New York have made DNA testing available in 
appropriate cases, most of the States that have the death 
penalty have not met that standard.
    DNA testing has opened a window to give us a disturbing 
view of the defects of the capital punishment system 
nationwide. Just as fingerprints, when available, were a major 
part of evidence in the 20th century, in the 21st century DNA 
is the fingerprint. If it is available, then it should be 
available in the same way in the last century we made 
fingerprints available.
    Mounting evidence suggests that the cases in which DNA 
evidence has proved death row inmates innocent are just the tip 
of an iceberg of constitutional violations and wrongful 
convictions in death penalty cases--the tip of the iceberg, but 
DNA is a good starting point.
    For more than a year, I have been working on these issues 
with prosecutors and judges and defense counsel, with both 
supporters and opponents of the death penalty, and with 
Democrats and Republicans. At the beginning of the year, I 
spoke to the Senate about the breakdown in administration of 
capital punishment across the country and I suggested some 
solutions. I noted then that for every seven people executed, 
one death row inmate has been shown sometime after conviction 
to be innocent of a crime. Since then, many more fundamental 
problems have come to light. I want to emphasize that DNA is 
not the magic answer by itself.
    This is not simply a case of whether DNA should be 
available. There is a lot more to it than that--more court-
appointed defense lawyers who slept through trials in which 
their clients have been convicted and sentenced to death. In 
fact, 43 of the last 131 executions in Texas, according to an 
investigation by the Chicago Tribune, had lawyers who were 
disbarred, suspended, or otherwise being disciplined for 
ethical violations. These are the people who have been 
appointed to represent people on trial for their lives.
    We have cases in which prosecutors have called for the 
death penalty based on the race of the victim, and cases in 
which potentially dispositive evidence has been destroyed or 
withheld from death row inmates for years. And the irony is, as 
every prosecutor knows, if you handle the case so poorly to 
begin with and it is sent up and then remanded for a new trial 
5 or 6 years later, it is almost impossible to try the case 
again in the same way. How much better--and as a former 
prosecutor I know this--how much better it is to do it right 
the first time.
    We have heard from the National Committee to Prevent 
Wrongful Executions, a blue ribbon panel comprised of 
supporters of the death penalty as well as opponents, Democrats 
and Republicans, including six former State and Federal judges, 
a former U.S. attorney, two former State attorneys general, and 
a former Director of the FBI. That diverse group of experts has 
expressed itself to be, ``united in its profound concern that 
in recent years, and around the country, procedural safeguards 
and other assurances of fundamental fairness in the 
administration of capital punishment have been significantly 
diminished.''
    For months, I have worked with Senators on both sides of 
the aisle and experts from all parts of the capital punishment 
system to bring about some basic, common-sense reform. The two 
most basic provisions of our bill would encourage governments 
to at least make DNA testing available in the kind of case in 
which it can determine guilt or innocence, and at least to 
provide basic minimum standards for defense counsel so that 
capital trials have a chance of showing innocence if it is 
there by means of an adversarial testing of evidence. That 
should be the hallmark of the criminal justice system in any 
event.
    Our bill will not free the system of all human error. 
Nothing can do that, but it will do much to eliminate errors 
caused by the willful blindness of the truth that our capital 
punishment system has exhibited all too often. That is the 
least we should demand of a justice system that puts people's 
lives at stake. If it puts people's lives at stake, we should 
seek as close to zero tolerance for mistakes as possible.
    I am greatly encouraged that Senators Gordon Smith and 
Susan Collins and Russ Feingold and Jim Jeffords and others 
here in the Senate, and Representatives Ray LaHood and William 
Delahunt and 45 other members of both parties in the House have 
joined me in sponsoring the Innocent Protection Act of 2000.
    Last year, I began urging Chairman Hatch to join us in 
examining these critical issues. I regret that he has thus far 
chosen not to join in our bipartisan bill, but I am grateful 
that he has agreed to hold this first hearing. I am hopeful 
that we can work together, as we have on other issues, to get 
common-sense legislation enacted. So let me just respond 
briefly to a couple of things he said.
    I agree with Chairman Hatch that reforms need to be 
carefully measured. As I have argued on many occasions in the 
Senate, federalism is an important value in the criminal 
justice system. As a former prosecutor and as a former vice 
president of the National District Attorneys Association, I am 
always eager to consult with prosecutors at the State and local 
level to let the States develop their own solutions to 
problems, and to help provide the assistance and resources and 
training needed to make improvements.
    That is why we crafted the DNA provisions of the Innocence 
Protection Act with great care and with very close attention to 
the experiences of Illinois and New York, the two States that 
have led the way in DNA testing. That is why both the DNA and 
competent counsel provisions of the Innocence Protection Act 
work by encouraging States to meet minimum standards, and by 
giving latitude to improve on those standards, not by imposing 
inflexible Federalmandates.
    On the other hand, I am also concerned to ensure that we 
enact reforms that are real and effective. We don't impose 
technical and legalistic barriers to DNA. Our bill does not 
require defendants to prove their innocence before they can 
obtain the access to DNA evidence that might prove their 
innocence. Our bill goes beyond DNA evidence to address the 
more fundamental issue of ensuring that defendants have 
minimally competent counsel at trial.
    I have been greatly heartened by the response of experts on 
federalism and criminal justice across the political spectrum. 
If I might read just partly from a letter from Bruce Fein, who 
is a leading constitutional expert, a former Deputy Attorney 
General in the Reagan administration--he has been quoted often 
by Chairman Hatch and others on this panel, and so while I will 
submit his whole letter for the record, here is what he says.
    ``In my view, the proposed legislation,'' referring to 
ours, ``raises no serious constitutional problems, respects our 
traditions of federalism in the field of criminal justice, and 
represents a measured and fact-bound response to the documented 
truth-finding deficiencies in death penalty and sister 
prosecutions, especially where DNA evidence might be conclusive 
on the question of innocence.'' I appreciate Mr. Fein's 
excellent letter.
    [The letter referred to follows:]
                                               McClean, VA,
                                                     June 12, 2000.
Hon. Patrick Leahy,
U.S. Senate,
Washington, DC.
    Dear Mr. Senator: In response to certain detractors of the proposed 
Innocence Protection Act of 2000 (S. 2690), I am submitting the 
following observations to assist the Congress and the public in 
appraising the wisdom and constitutionality of the bill.
    In my view, the proposed legislation raises no serious 
constitutional problems, respects our traditions of federalism in the 
field of criminal justice, and represents a measured and fact-bound 
response to the documented truth-finding deficiencies in death penalty 
and sister prosecutions, especially where DNA evidence might be 
conclusive on the question of innocence.
    Too often forgotten in our uniquely admired system of justice is 
the understanding that in criminal prosecutions the government's duty 
is not necessarily to win convictions but to see that justice is done. 
That is the unmistakable teaching of the United States Supreme Court in 
Berger v. United States (1935). Moreover, our criminal justice system 
is informed by the venerated theory that it is better that some of the 
guilty go free than that an innocent be wrongly convicted. That 
precept, for example, explains why proof of guilt beyond a reasonable 
doubt is required, not simply by a preponderance or clear and 
convincing evidence. Justice John Harlan sermonized in In re Winship 
(1970): ``I view the requirement of proof beyond a reasonable doubt in 
a criminal case bottomed on a fundamental value determination in our 
society that it is far worse to convict an innocent man than to let a 
guilty man go free.''
    Of course, some tiny risk of convicting an innocent person is 
inherent in any system of criminal justice because re-creating past 
events and motivations inescapably falls short of mathematical 
certitudes. But taking reasonable measures to shrink that inherent 
risk, as does S. 2690, not only celebrates our cherished respect for 
individual liberty but also the overarching government interest in 
seeing that justice is done, which is not synonymous with winning 
cases.
    Federalism is also a cornerstone of criminal justice. Most crimes 
are state or local, as are most law enforcement resources. Generally 
speaking, a respect for state autonomy and self-government counsel 
strongly against congressional forays that would disturb state law 
enforcement schemes and practices. But that time-honored principle is 
not absolute, and should be applied with prudence, without which wit is 
ridiculous, knowledge useless, and genius contemptible, to paraphrase 
philosopher Sam Johnson. Generations of Jim Crow in the South required 
federal criminal civil rights statutes to defend our black citizens 
from the predations of the KKK, the White Citizens Council, and their 
non-member soulmates. More recently, Congress has encroached on 
customary state prerogatives either directly or through the spending 
power because disgruntled with lenient sentencing, repeat offenders, 
laxness in protecting access to abortion clinics, the reliability of 
DNA testing protocols, or otherwise. Moreover, the entire scheme of 
federal habeas corpus law is built on the premise that states may run 
afoul of the Constitution or federal statutes in the administration of 
criminal justice, and that a second layer of federal protection for the 
convicted state criminal is thus justified. That premise is buttressed 
by yesterday's Columbia University death penalty study showing a 21% 
reversal rate in habeas corpus capital cases concerning either the 
verdict or sentence.
    In sum, federalism bespeaks a persuasive but not insurmountable 
presumption against congressional intrusion on state criminal justice; 
intervention is justified when the congressional objective is both 
factually credible and reasonably furthers a strong and legitimate 
constitutional mandate, such as diminishing the probability of 
convicting the innocent.
    Section 103 of S. 2690 would condition federal DNA grants on a 
certification that a recipient state has taken reasonable steps to both 
preserve biological material relevant to a criminal case and to enable 
inmates to obtain non-cumulative DNA testing that might cast reasonable 
doubt on their guilt. These twin federal grant conditions seem 
thoroughly warranted and constitutional. As in the federal unemployment 
compensation law and the opt-in scheme of the 1996 Anti-Terrorism and 
Effective Death Penalty Act, no state is coerced but only encouraged. 
Further, the bill finds that DNA testing has repeatedly exonerated the 
innocent, a virtual constitutional imperative under the United States 
SupremeCourt ruling in Herrera v. Collins, and an urgent government 
objective in the administration of criminal justice generally. Section 
103 is thus reasonably related to forestalling and curing violations of 
the due process clause of the Fourteenth Amendment, and thus easily 
passes constitutional muster as grant-in-aid provisions.
    Separate from the constitutional question is the prudential issue 
of whether the administrative vexations in implementing the DNA testing 
conditions are not worth the candle of exonerating an occasional 
innocent inmate. To answer ``yes'' seems against the spirit of liberty 
that infuses criminal justice; it is also undercut by the practice in 
both New York and Illinois to offer post-conviction DNA testing 
opportunities, which have yielded 7 and 14 exonerations, respectively. 
The government burden imposed by section 103, however, smack more of 
the featherweight than the heavyweight. No gathering of new DNA 
evidence is required; no perpetual preservation of stale evidence for 
the likes of archeologists is mandated; and, no new testing is 
stipulated if the results are unlikely to yield noncumulative 
exculpatory evidence.
    Section 104 is a direct federal post-conviction DNA testing 
opportunity mandate to states bottomed on the power of Congress under 
section 5 of the Fourteenth Amendment to remedy or to forestall 
constitutional violations, which include punishing the innocent. That 
danger has been amply demonstrated in the absence of DNA post-
conviction testing opportunities. As the bill finds: ``In the past 
decade, there have been more than 65 post-conviction exonerations in 
the United States and Canada based upon DNA testing. At least 8 
individuals sentenced to death have been exonerated through post-
conviction DNA testing, some of whom came within days of being 
executed.''
    Section 104 is undisturbing to legitimate federalism concerns. At 
present, States resort to DNA testing to solve long unsolved crimes to 
convict the guilty, an impeccable objective. But States are equally 
enjoined under the Constitution and a cherished principle of criminal 
justice to exonerate the innocent. Section 104 would advance, not 
subvert, that state criminal justice goal. States have no greater 
interest in incarcerating the innocent than in stooping to racial 
discrimination in jury selection or prosecutorial discretion.
    Section 201 addresses the worrisome documented deficiencies in 
defense counsel in capital cases, including non-cerebral slumber, 
through a federal grant-in-aid incentive. It would condition certain 
federal law enforcement funds on the adoption by recipient States of a 
system of defense counsel selection for the indigent in death penalty 
prosecutions that the Administrative Office of U.S. courts certifies as 
insuring effective legal representation. That condition seems 
irreproachable. As the United States Supreme Court lectured in Powell 
v. Alabama (1932), talented defense counsel is necessary not only for 
fair play during trials, but to prevent conviction of the innocent, an 
objective exceptionally compelling in capital cases where punishment is 
beyond belated rectification. What is done cannot be undone, to borrow 
from Macbeth.
    Section 201 should not be burdensome to participating States 
because capital prosecutions constitute but a tiny fraction of all 
criminal prosecutions. The number of reasonably gifted defense counsel 
required should thus be correspondingly untroublesome. The required 
defense counsel standard is not Clarence Darrow, but the far more 
numerous uncoronated lawyers. Finally, section 201 bolsters federalism 
interests by slashing the probability of executing an individual who is 
later and conclusively proven innocent. Such a travesty in any single 
State would invariably arouse invincible political sentiments against 
capital punishment in all States, thus ending a constitutionally 
legitimate sentencing option. I support the death penalty in 
exceptionally egregious cases, and am convinced that as a political 
reality section 201 works to safeguard that sentencing prerogative.
    Section 202 is complementary. It would encourage States to upgrade 
death penalty counsel for indigents (and thus the reliability of 
capital verdicts) by strengthening federal court habeas corpus 
constitutional scrutiny of death sentence verdicts in the absence of a 
system of selecting defense attorneys certified as adequate by the 
Administrative Office of U.S. Courts. Since executing the innocent is a 
Fourteenth Amendment violation, and the Sixth Amendment requires 
provision of competent counsel, section 202 is reasonably related to 
avoiding chilling constitutional injustices; that high goal overwhelms 
its trivial intrusion on federalism where federal habeas corpus already 
exposes States to second-guessing by federal courts to insure 
constitutional rights are scrupulously honored.
    Section 401 wins a federalism blue ribbon. It would instruct the 
Attorney General of the United States to decline seeking the death 
penalty for federal crimes that are carbon copies of state prohibitions 
where the state prohibits capital punishment and has accepted 
jurisdiction to prosecute the case under state law. In such cases, the 
federal interest in persisting in a death sentence over the objection 
of state sentiments seems anemic andunpersuasive, subject to the ``one-
size-fits-all'' reproach.
    Section 403 would establish another federal grant-in-aid condition 
that should command the applause of all who believe in more rather than 
less truthful information in sentencing proceedings. It would encourage 
States in capital cases to inform sentencing juries of all legally 
permitted options, including parole eligibility rules and terms, if 
death is not selected. It seems difficult to concoct any credible 
reason for a State to oppose fully informed sentencing juries in 
capital cases, except to tip the scales of justice in favor of 
execution, which would not be constitutional if practiced overtly under 
Witherspoon v. Illinois (1968). Only last week, the Virginia Supreme 
Court held that judges must inform sentencing juries that the state has 
abolished parole, extending to all criminal defendants a right 
previously confined to those facing potential execution. Federalism is 
not intended as a shield for illegitimate sentencing procedures that 
favor the merciless over the merciful.
    Section 405 deserves at least a federalism honorable mention. It 
would reduce cluttering state supreme courts with unwanted 
discretionary criminal appeals of identified claims by preventing their 
waiver in federal habeas corpus proceedings if that state desire is 
honored. What is the valid congressional interest in forcing state 
inmates to raise discretionary claims in state supreme courts that the 
latter expressly discourage? Doesn't that turn federalism on its head?
            Sincerely,
                                                Bruce Fein,
               Former Associate Deputy Attorney General, 1981-1982.

                   Biographical Sketch of Bruce Fein

    Education: Swarthmore College, University of California, Harvard 
Law School. Graduated with Honors.
    Journalism: Weekly columnist for The Washington Times. Guest 
columnist for USA Today.
    International Affairs: Adjunct Scholar with the Assembly of Turkish 
American Associations.
    Law: Solo Practitioner specializing in international and 
constitutional law.
    Government Experience: Associate Deputy Attorney General, General 
Counsel to the Federal Communications Commission, Counsel to the 
Congressional Iran-contra committee.
    Think Tank Associations: Visiting Scholar with the Heritage 
Foundations, Adjunct Scholar with the American Enterprise Institute.
    Congressional Experience: Testified as an expert witness before 
congressional committees on more than 50 occasions.
    Additional Expertise and Qualifications:
    Impeachment. At the Department of Justice under Attorneys General 
Elliot Richardson and William Saxbe, meticulously examined and advised 
on presidential impeachment issues raised by President Nixon's 
complicity in the Watergate scandal and Vice President Agnew's 
complicity in bribery. Testified before a congressional commission 
exploring problems with impeaching federal judges. Published scores of 
newspaper columns and held two nationally televised press conferences 
addressing Monicagate and potential indictment or impeachment of 
President Clinton.
    Constitutional law. Featured on the cover of the American Bar 
Association Journal for article expounding on the proper role of the 
United States Supreme Court in constitutional interpretation. Authored 
a monograph on the Federalist Papers and importance in contemporary 
constitutional thinking. Testified on scores of occasions before the 
House and Senate Judiciary Committees on pending resolutions and bills 
that raise constitutional issues, including constitutional amendments. 
Testified before the SenateJudiciary Committee in support of the 
Supreme Court nominations of Chief Justice William Rehnquist and 
Associate Justice Antonin Scalia. Private legal practice pivots on 
constitutional law. Supervised constitutional litigation at the 
Department of Justice and claims of executive privilege.
    Criminal Law. Supervised the Criminal Division's litigation at the 
Department of Justice and use of the Foreign Intelligence Surveillance 
Act and the Classified Information Procedures Act.
    Civil Rights Law. Supervised civil rights affirmative action 
litigation and legislation at the Department of Justice, especially the 
issues of racial and gender preferences and workplace liability. 
Similar issues were handled regarding race and gender preferences as 
General Counsel of the Federal Communications Commission.
    International Law. Have advised numerous foreign countries in the 
drafting of constitutions. Prepared commentaries on the proposed 
international criminal court and the teachings of the Nuremberg and 
Tokyo war crimes tribunal. Testified before the Senate Foreign 
Relations Committee on various treaty issues, including the 
constitutionality of the World Trade Organization Act and the Helms-
Burton law.
    Appointment of Federal Judges. Was a central figure in the 
appointment of federal judges at the Department of Justice, including 
the nomination of Supreme Court Justices. Authored a Harvard Law Review 
article on the proper role of the Senate in the confirmation process.
    Coordinating Congressional Investigations with Parallel Grand Jury 
Inquiries. At the Justice Department during the Watergate investigation 
and as Research Director of the congressional Iran-contra joint 
congressional committee during the Iran-contra investigation, aided the 
coordination of the parallel criminal and legislative proceedings to 
avoid conflicts or interference in achieving the competing objectives 
to the two branches.
    Media prominence. According to National Law Journal, he is one of 
the six most quoted attorneys in the mass media. He has more than 500 
television and radio appearances to his credit.

    Senator Leahy. I look forward to working with everybody 
else here, but I also want to thank you again, Mr. Chairman, 
for proceeding with the hearing. I want to thank Senator Smith, 
who is here, and Congressman LaHood and Congressman Delahunt. I 
commend Senator Feingold for his leadership on these issues, 
and Senators Kohl, Feinstein, and Schumer, and you, Mr. 
Chairman, for your interest.
    I have other matters I would put in the record, including a 
portion of Professor Liebman's report, portions of two reports 
by the National Institute of Justice relating to post-
conviction DNA testing, a letter to me from Professor Larry 
Yackle, of the Boston University Law School, and a letter that 
you and I have received from former FBI Director William 
Sessions.
    [The information referred to is located in the appendix.]
    Senator Leahy. I would ask that we might keep the record 
open for statements from others for maybe a few days, if we 
might, Mr. Chairman.
    The Chairman. Without objection, we will do that.
    Senator Leahy. And, last, I would just leave everybody with 
this thought. Don't think that DNA is going to be the magic 
bullet because there are a lot of cases that every prosecutor 
and every defense attorney--and I see a lot of heads shaking 
yes; they know what I am going to say. A lot of prosecutors and 
a lot of defense attorneys in this room know that there are a 
lot of cases where there is no DNA evidence, just like there 
are a lot of cases where there is no fingerprint evidence or 
there is no blood sample. There are none of the things that you 
might see in a television show.
    But we should at least guarantee that if it is available, 
it is available to both sides and, secondly, that there be 
competent counsel on both sides. When we hear some of these 
horror stories, we should ask ourselves would any one of us, if 
we were charged with a serious traffic case, to say nothing 
about something where we might get the death penalty--but even 
with a serious traffic case, would we accept as lawyers some of 
the incompetent lawyers that have defended people who have 
ended up on death row.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator.
    At this point, I would like to enter into the record a 
prepared statement of Senator DeWine.
    [The prepared statement of Senator DeWine follows:]

 Prepared Statement of Hon. Mike DeWine, A U.S. Senator From the State 
                                of Ohio

    Mr. Chairman, thank you very much for holding this important 
hearing on post-conviction DNA. Existing anti-crime technology can 
allow us to solve many violent crimes that occur in our communities, as 
well as clear those who have been wrongfully accused of a crime.
    I have been a long-time advocate for use of the Combined DNA 
Indexing System (CODIS), a national DNA database, to profile convicted 
offender DNA. In fact, during consideration of the Anti-Terrorism Act 
of 1996, I proposed a provision under which federally convicted 
offenders' DNA would be included in CODIS. Unfortunately, the 
Department of Justice never implemented this law, though currently all 
50 states collect DNA from convicted offenders.
    Also, in 1998, I sponsored the Crime Identification Technology Act, 
which was enacted into law. This Act authorizes $250 million for crime 
identification technology, and sets aside at least 20 percent to 
improve state and local crime laboratories which perform DNA testing. 
In FY00, $35 million was appropriated for assistance to state and local 
DNA laboratories under this Act to begin addressing the serious backlog 
of state cases awaiting DNA analysis, as well as convicted offender DNA 
testing.
    This Congress, I introduced the ``Violent Offender DNA 
Identification Act of 1999,'' with my colleague Senator Herb Kohl. One 
of the purposes of that legislation is to expressly require the 
collection of DNA samples from federally convicted felons and military 
personnel convicted of similar offenses. Collection of convicted 
offender DNA is crucial to solving many of the crimes occurring in our 
communities. This bill also would provide about $30 million, over four 
years, to help state and local crime laboratories address their 
convicted offender backlogs.
    I believe any effort to encourage post-conviction testing will be 
successful only if we are able to substantially eliminate the DNA 
analysis backlog in our state and local laboratories. The FBI estimates 
that there are about 450,000 convicted offender samples in state and 
local laboratories awaiting analysis. Increasing demand for DNA 
analysis in active cases, and limited resources, are reducing the 
ability of state and local crime laboratories to analyze their 
convicted offender backlogs.
    I look forward to hearing the testimony of our distinguished 
panels. In particular, I appreciate the attendance of James Wooley, who 
is a former Assistant United States attorney in Cleveland, and now a 
partner in the law firm of Baker & Hostetler. Thank you, Mr. Chairman.

    The Chairman. We will start with Senator Smith as our first 
witness and then we will go through the rest of the panel.
    Senator Smith.

  STATEMENT OF HON. GORDON H. SMITH, A U.S. SENATOR FROM THE 
                        STATE OF OREGON

    Senator Smith. Good morning, Mr. Chairman. I thank you and 
this committee for holding this hearing on the important issue 
of DNA testing in our criminal justice system.
    I am sure you have all noticed the many and prominent news 
stories about this issue and the attention it has received in 
recent days from presidential candidates. Clearly, post-
conviction DNA testing is an idea whose time has come.
    Last week, Senator Leahy and I introduced a bill that would 
do a number of things to improve our criminal justice system. 
The Leahy-Smith bill would allow prisoners in this country to 
have access to post-conviction DNA testing so innocent lives 
are not spent behind bars or waiting for execution.
    The bill would require competent counsel at every stage of 
a capital case, eliminating the possibility that defendants on 
trial for their lives would be represented by counsel that is 
unqualified, underpaid, and overworked. Furthermore, to avert a 
double wrong, the Leahy-Smith bill would provide fair 
compensation for people who have been wrongfully convicted.
    I understand, Mr. Chairman, that you will introduce a bill 
in the next few weeks that would also allow for post-conviction 
DNA testing in certain circumstances. As I understand the title 
of your bill, the Criminal Justice Integrity and Law 
Enforcement Act, your bill, sir, would also provide funds for 
States to reduce the backlog of DNA tests and develop and 
maintain a record of DNA of convicted offenders.
    Obviously, Senator Leahy, Senator Hatch and myself, among 
others, share a common motive of making a good system better. 
We should also share a common goal, producing the best 
legislation for our country. Both of these bills propose using 
modern genetic technology to improve our criminal justice 
system to protect the truly innocent.
    Senator Hatch's legislation goes beyond the Leahy-Smith 
bill to address the important issue of the current backlog of 
unanalyzed DNA samples. However, Leahy-Smith goes further than 
the Hatch bill to address other rare but real issues faced by 
the wrongfully accused; competent counsel and fair compensation 
for unjust incarceration.
    Today, you will hear from several prosecutors, including 
one from my own State of Oregon, Josh Marquis who is the Oregon 
State Director of the National District Attorneys Association 
and the Vice President of the Oregon District Attorneys 
Association. I welcome their participation and their unique 
perspective in this discussion.
    Some express concern that the Leahy-Smith legislation would 
impose burdensome obligations upon the States. They believe 
that the States should be counted upon to continue setting 
responsible standards for the definition of crime, punishment, 
and procedures to be followed in their courts. In the 
overwhelming majority of cases, the States do things very, very 
well. Oregon, for instance, spends more on defense attorneys 
than it does on prosecution. Officers of America's courts and 
law enforcement work extremely hard to ensure that true 
perpetrators of heinous crimes are caught and convicted.
    However, there have been instances where defendants have 
been represented by incompetent counsel. There are also a 
number of prisoners on death row who have never had access to 
DNA testing during trial simply because it did not exist at 
that time.
    My view, Mr. Chairman, is this: if you support the death 
penalty, you should also support every measure to make sure 
that the guilty and not the innocent are executed. It is that 
simple. When life is at stake, no step should be considered too 
protracted or too onerous. Setting Federal standards on access 
to post-conviction DNA and competent counsel are very 
reasonable steps to make sure that our system of criminal 
justice operates fairly, regardless of where you live in the 50 
States.
    If we are to have a system that is just, transparent and 
defensible, we must make absolutely certain that every person 
who is behind bars deserves to be there. One of the best ways 
to do this is to make sure that the fingerprint of the 21st 
century is unmistakably stamped on our judicial system. We must 
have confidence in the integrity of justice, that it will both 
protect the innocent and punish the guilty. For these reasons, 
I urge members of the Senate Judiciary Committee, both 
Republican and Democrat, to work with us to produce the best 
possible legislation that will provide true protections to the 
innocent.
    I thank you, Mr. Chairman and members of the committee.
    The Chairman. Thank you, Senator Smith. We know that you 
have a busy day ahead of you and so we won't require you to 
stay.
    Senator Smith. Thank you, sir.
    The Chairman. But we appreciate your testimony and take due 
notice of it.
    Senator Leahy. Mr. Chairman, I also want to thank Senator 
Smith. The Leahy-Smith-LaHood-Delahunt legislation is good 
bipartisan legislation. I appreciate that.
    I would also ask consent that a statement by Senator Levin 
of Michigan, be entered in the record.
    The Chairman. Without objection, we will put it in the 
record.
    Senator Leahy. Thank you.
    [The prepared statement of Senator Levin follows:]

Prepared Statement of Hon. Carl Levin, a U.S. Senator From the State of 
                                Michigan

    A Michigan murder case clearly demonstrates the need for a law, 
such as proposed by Senator Leahy, myself and others, which would 
prevent the destruction by the government of DNA evidence crucial to 
establishing innocence or guilt.
    The bill, the Innocence Protection Act, would require the 
government to preserve ``biological material secured in connection with 
a criminal case'' as long as a person is in prison in connection with 
that case, except that the government may destroy such material after 
it gives notice to the person and a court doesn't intervene to prohibit 
the destruction.
    Why should such a requirement even be necessary?
    A nearly 20 year old Michigan case provides a compelling answer.
    A young woman, Patricia Rosansky, disappeared in February 1983 in 
Battle Creek (Calhoun County) Michigan. Her body was found in April 
1983 and an autopsy disclosed she had been brutally raped and murdered.
    A number of human hairs were found in her hand and semen was found 
nearby.
    Thomas David Cress was arrested about a year later and was 
convicted of her murder, following an almost month-long jury trial.
    An expert testified that Cress's hair was not similar to the hair 
found in Ms. Rosansky's hand. DNA tests were not available at the time 
of the trial to test either the hair or the semen against the 
defendant's hair and semen.
    Defendand Cress denied committing the crime and there were no eye 
witnesses.
    Cress provided alibi evidence.
    A number of witnesses testified (the ``testifying witnesses'') that 
Cress told them he had committed the crime. As stated by the Trial 
Court, ``There was absolutely no physical evidence linking the 
Defendant, Mr. Cress, to this crime. The only evidence connecting him 
to the crime was the testimony of several witnesses . . . all of whom 
testified that Mr. Cress had admitted to each of them his involvement 
in Ms. Rosansky's murder.''
    The Jury convicted Mr. Cress and his conviction was affirmed in 
1988.
    Four years later, in January 1992, Battle Creek police detective 
Dennis Mullen, a homicide detective with almost three decades' 
experience, who had been investigating the August 1982 murder in Battle 
Creek of Maggie Hume, interviewed a man named Michael Ronning in an 
Arkansas prison where Ronning was serving time for murder.
    Ronning would later confess to Detective Mullen that he killed 
Maggie Hume and had also killed Ms. Rosansky and a woman named Carrie 
Evans, all in the same Battle Creek area, in late 1982 and 1983.
    There was no acquaintanceship or connection of any kind between 
Ronning and Cress.
    When Detective Mullen returned from his interview in Arkansas with 
Ronning in January 1992, he was convinced that Ronning was the murderer 
of Patricia Rosansky because of his confession, because of his 
knowledge of facts of the scene at the crime that hadn't been made 
public, because of the pattern of the three rape-murders and because he 
lived near the three victims he confessed to have raped and murdered. 
Detective Mullen informed Calhoun County Prosecutor Jon Sahli promptly, 
both in writing and in person, that he had a confession in the Rosansky 
murder and that Thomas Cress was innocent of her murder.
    On repeated occasions during January-April of 1992, Detective 
Mullen, his Commander and his Police Chief all pressed Prosecutor Sahli 
to act on the information they had provided.
    Instead of calling on an expert to compare the hair samples in Ms. 
Rosansky's hand to Michael Ronning's hair, the prosecutor destroyed the 
evidence.
    Instead of using DNA tests, now available, to test those hair 
samples and the semen found near the body to the hair and semen of the 
man confessing to the murder (Mr. Ronning) and the man proclaiming his 
innocence (Mr. Cress), the prosecutor burned the evidence.
    On May 14, 1992, without any notice to the Detective or his 
Commander or the Police Chief, all of whom had repeatedly urged him to 
act on Ronning's confession and who had been repeatedly assured by him 
that the matter was being investigated, Prosecutor Sahli signed the 
authorization to destroy the hairs and the semen on the following 
ground: ``Closed no appeal.''
    There is much in this case that is important that I won't comment 
on because it is not directly relevant to my point: we need a law such 
as proposed by Senator Leahy, myself and others, to prevent the 
destruction of DNA material relating to the trial of a person in 
prison, without first notifying that person and giving him a chance to 
seek a protective court order.
    For instance, among other things, this case involves the 
recantation of testimony, claims that testimony of the testifying 
witnesses had been prompted by reward money, a videotape of Michael 
Ronning's confession to the Rosansky murder, testimony of other 
witnesses challenging the credibility of that confession, an order for 
a new trial by the Trial Court, a change of mind and reversal of that 
order for a new trial by the same Trial Court, a refusal of the Trial 
Court to consider, for the purpose of the new trial motion, certain 
polygraph exams passed by Mr. Cress denying the murder and passed by 
Mr. Ronning admitting to the murder of Ms. Rosansky, and much else.
    The Trial Court ruled that the destruction of the physical evidence 
(the hair and the semen) by the prosecutor was irrelevant despite the 
police officers' repeated assertions to the prosecutor of Mr. Cress's 
innocence and Mr. Ronning's guilt.
    It would not be appropriate for me to comment here on whether the 
prosecutor's actions violated Mr. Cress's constitutional rights--that 
is an issue currently being litigated.
    Nor would it be appropriate for me to state an opinion on the guilt 
or innocence of Mr. Cress or Mr. Ronning.
    But in arguing for why we need a bill such as that introduced by 
Senator Leahy, myself and others, it strikes me as most appropriate to 
say that it seems to me that it is an egregious violation of 
fundamental fairness for a prosecutor, when told by experienced 
detectives that a man is in prison who they believe is innocent of a 
crime another man has confessed to, to destroy physical evidence 
instead of preserving it or DNA testing it.
    It strikes me as an egregious violation of fundamental fairness for 
a prosecutor, when told by experienced detectives that a man is in 
prison who they believe is innocent of a crime another man has 
confessed to, and that justice requires a new trial at which physical 
evidence under the prosecutor's control would be highly relevant, to 
willfully and purposefully burn that evidence.
    Prosecutor Sahli, by the way, kept the fact that he authorized the 
destruction of that evidence a secret from the Battle Creek Police 
Department for four years.
    The common sense requirement in the Leahy et al Bill is based on 
elemental fairness. It shouldn't be needed.
    But it is, and hopefully this Committee will promptly report a bill 
containing such a common sense protection of elemental fairness to the 
full Senate for our consideration.

    The Chairman. Thank you, Senator Smith.
    Senator Thurmond. Thank you, Senator, for your statement.
    Senator Smith. Thank you, Senator Thurmond.
    [The prepared statement of Senator Smith follows:]

  Prepared Statement of Hon. Gordon H. Smith, a U.S. Senator From the 
                            State of Oregon

    Good morning. I would like to thank Chairman Hatch and the 
Judiciary Committee for holding this hearing on the important issue of 
DNA testing in our criminal justice system. I'm sure you have all 
noticed the many and prominent news stories about this issue and the 
attention to it in recent days by presidential candidates. Clearly, 
post-conviction DNA testing is an idea whose time has come.
    Last week, Senator Leahy and I introduced a bill that would do a 
number of things to improve our criminal justice system. The Leahy-
Smith bill would allow prisoners in this country to have access to 
post-conviction DNA testing so innocent lives are not spent behind bars 
or waiting for execution. The bill would require competent legal 
counsel at every stage of a capital case, eliminating the possibility 
that defendants on trial for their lives would be represented by 
counsel that was unqualified, underpaid, and overworked. Furthermore, 
to avert a double wrong, Leahy-Smith would also provide fair 
compensation for people who have been wrongfully convicted.
    Today, Senator Hatch is introducing a bill that would allow for 
post-conviction DNA testing in certain circumstances, the Criminal 
Justice Integrity and Law Enforcement Assistance Act. His, too, would 
also provide funds for the states to reduce the backlog of DNA tests, 
and develop and maintain a record of DNA of convicted offenders.
    Obviously, Senators Leahy, Hatch, and I, among others, share a 
common motive: making a good system better. We should also share a 
common goal: producing the best legislation for the country. Both of 
these bills propose using modern genetic technology to improve our 
criminal justice system to protect the truly innocent. Senator Hatch's 
legislation goes beyond Leahy-Smith to address the important issue of 
the current backlog of unanalyzed DNA samples; however, Leahy-Smith 
goes further than the Hatch bill to address other rare but real issues 
faced by the wrongfully accused: competent counsel and fair 
compensation for unjust incarceration.
    Today, you will hear from a several prosecutors, including Joshua 
Marquis from my home state who is the Oregon State Director of the 
National District Attorney's Association, and the Vice-President of the 
Oregon District Attorney's Association. I welcome their participation 
and their unique perspective in this discussion. Some express concern 
that the Leahy-Smith legislation would impose burdensome obligations on 
the states. They believe that states should be counted upon to continue 
setting responsible standards for the definition of crime, punishment, 
and procedures to be followed in their courts.
    In the overwhelming majority of cases, the states do these things 
very, very well. Oregon, for instance, spends more on defense attorneys 
than it does on prosecution. Officers of America's courts and law 
enforcement work extremely hard to ensure that the true perpetrators of 
heinous crimes are caught and convicted. However, there have been 
instances where defendants have been represented by incompetent 
counsel. There are also a number of prisoners on death row who never 
had access to DNA testing during trial simply because it did not exist 
at that time.
    My view is this: if you support the death penalty, you should also 
support every measure to make sure that the guilty and not the innocent 
are executed. It's that simple. When life is at stake, no step should 
be considered too protracted or too onerous. Setting federal standards 
on access to post-conviction DNA and competent counsel are very 
reasonable steps to make sure that our system of criminal justice 
operates fairly regardless of where you live.
    If we are to have a system that is just, transparent, and 
defensible, we must make absolutely certain that every person who is 
behind bars deserves to be there. One of the best ways to do this is to 
make sure that the fingerprint of the 21st century is unmistakably 
stamped on our judicial system. We must have confidence in the 
integrity of justice, that it will both protect the innocent and punish 
the guilty.
    For these reasons, I urge members of the Senate Judiciary 
Committee, both Republican and Democrat, to work with us to produce the 
best possible legislation that will provide true protections to the 
innocent.

    The Chairman. Let me introduce the first panel of 
witnesses. First, we will have the Hon. Drew Edmondson, the 
attorney general of Oklahoma. He has served as attorney general 
of Oklahoma since 1994. We have been with you before and we 
appreciate you coming and making yourself available.
    Our next witness is the Hon. Eliot Spitzer.
    I am pronouncing that right, aren't I?
    Mr. Spitzer. You are indeed.
    The Chairman. OK; that is the way I have always pronounced 
it. I just wanted to make sure.
    Eliot is the attorney general of New York. He has served as 
a former prosecutor and is now New York State's chief law 
enforcement officer. We are very grateful that you are here 
today.
    We are pleased to welcome Enid Camps, the deputy attorney 
general of California, who is the legal adviser of the 
California Department of Justice DNA laboratory. So we are 
honored to have you here as well.
    The Hon. Charles F. Baird is joining us as a former judge 
on the Texas Court of Criminal Appeals, and he is currently 
serving as Co-Chair of the Constitution Project's National 
Committee to Prevent Wrongful Executions. We are delighted to 
have you as well, and honored.
    Finally, we welcome Josh Marquis.
    Am I pronouncing your name right, Marquis?
    Mr. Marquis. Yes, sir.
    The Chairman. The district attorney of Clatsop County, OR, 
and member of the National District Attorneys Association, from 
Astoria, OR.
    Good morning to each of you and welcome to the hearing on 
post-conviction DNA testing. We are just delighted to have all 
of you here, as well as the second panel which we will 
introduce after you.
    General Edmondson.

PANEL CONSISTING OF HON. W.A. DREW EDMONDSON, ATTORNEY GENERAL, 
   STATE OF OKLAHOMA, OKLAHOMA CITY, OK; HON. ELIOT SPITZER, 
ATTORNEY GENERAL, STATE OF NEW YORK, NEW YORK, NY; ENID CAMPS, 
 DEPUTY ATTORNEY GENERAL, STATE OF CALIFORNIA, SACRAMENTO, CA; 
 HON. CHARLES F. BAIRD, FORMER JUDGE, TEXAS COURT OF CRIMINAL 
 APPEALS, AND CO-CHAIR, NATIONAL COMMITTEE TO PREVENT WRONGFUL 
    EXECUTIONS, AUSTIN, TX; AND JOSHUA K. MARQUIS, DISTRICT 
 ATTORNEY, CLATSOP COUNTY, OR, AND MEMBER, BOARD OF DIRECTORS, 
      NATIONAL DISTRICT ATTORNEYS ASSOCIATION, ASTORIA, OR

             STATEMENT OF HON. W.A. DREW EDMONDSON

    Mr. Edmondson. Thank you, Mr. Chairman, members of the 
committee. I appreciate the opportunity you have given me to 
present testimony here today. As Oklahoma's attorney general 
and a former prosecutor, I had the honor of working with 
Chairman Hatch and with other members of this committee on the 
habeas corpus reforms included in the 1996 Antiterrorism and 
Effective Death Penalty Act.
    Some of you may recall victims and family members of 
victims of the Murrah Building bombing who came to Washington 
wearing buttons with the number 17 on them and the 
international ``no'' symbol, signifying the 17 years of appeals 
for Roger Dale Stafford, a notorious Oklahoma murderer, and 
their hope that the process would not be that lengthy for 
whoever might be convicted of the act which so devastated 
Oklahoma City on April 19, 1995. You responded to their pleas 
in 1996, but now I fear, only 4 years later, you are 
considering legislation which might well erase those gains and 
throw additional, unnecessary road blocks into our judicial 
process.
    Since the death penalty was reenacted in 1976, Oklahoma has 
executed 27 convicted murderers, 24 since I took office in 
1995. DNA testing was not an issue in any of those cases, 
either because there were no samples from the perpetrator left 
at the scene of the crime for testing or because guilt was 
admitted and testing unnecessary, or identity of the 
perpetrator was not at issue, or DNA testing was never 
requested.
    There is nothing magic about DNA. DNA identifies only its 
donor, not the perpetrator of the crime. DNA does not tell us 
when it arrived at the scene of the crime. DNA does not tell us 
how it arrived at the scene of the crime. DNA does not tell us 
who else might have been present when the crime was committed.
    Robert Frost said that before he would build a wall, he 
would ask what it is he is walling in or walling out. Before we 
mandate a DNA test in an individual case or by legislation, we 
should ask ourselves what exactly do we hopeto prove or 
disprove. The essential question should be, if this test turns out 
exactly the way the applicant turns out, will it show the applicant to 
be innocent?
    In the best of cases, DNA can provide compelling evidence. 
In most cases, however, including most murder cases, DNA 
testing is inapplicable because there are no samples connected 
to the suspect for testing, or irrelevant because the identity 
of the suspect is not an issue.
    What Congress may do, if it does not proceed with caution, 
is establish an ineffective death penalty act that awards new 
avenues of appeal for convicted murderers, years of additional 
anguish for the families of their victims, and an attack on 
State sovereignty that is breathtaking in its scope.
    Under S. 2073, the State of Oklahoma, even if it opts out 
of the Federal grant programs, can still be forced to adopt new 
hearing procedures, new avenues of appeal, new standards for 
representation and compensation, new jury instructions in 
capital cases, new requirements for preservation of evidence, 
and new methods for convicted murderers to sue State officials, 
including judges.
    Oklahoma enacted a DNA testing bill in this past session of 
the legislature. It was signed into law by Governor Keating on 
June 1. It gives our indigent defense system sole discretion to 
determine which cases to authorize for testing and priority to 
cases presenting the opportunity for conclusive or near 
conclusive proof that a person is factually innocent by reason 
of scientific evidence.
    Oklahoma recently saw a case delayed over DNA evidence. 
With the execution date approaching, defense attorneys alleged 
in pleadings that the test results would produce substantial 
evidence of innocence. After being denied access to the 
evidence by both State and Federal courts, the tenth circuit 
issued a stay without affording the State an opportunity to 
respond and the case is now on hold.
    The defendant in that case admitted to his participation in 
the kidnaping, beating, burning, and murder of an 84-year-old 
woman. His confession was corroborated by witness testimony, 
the fact that after the killing he went to a strip joint 
smelling of gasoline and gave a stripper the woman's wedding 
ring, and the statement he gave another witness that he set the 
woman on fire and, ``watched her jump like a june bug on a hot 
sidewalk.'' This scenario of justice delayed could be repeated 
over and over again with the mandates and lax standards of S. 
2073.
    If the Federal Government moves in the direction to affect 
forensic testing in State courts, I would urge the committee to 
adopt the approach being suggested by Chairman Hatch. Establish 
policy to encourage the States to proceed in that direction. 
Rather than authorizing tests whenever the results might be 
relevant to a theory of innocence, require a prima facie 
showing that identity was an issue at the original trial and 
that the DNA test, if the results were favorable, would 
establish innocence sufficiently that a reasonable jury would 
not convict.
    Rather than threatening loss of funds that are providing 
vital law enforcement needs and victims services, establish a 
new funding source to assist States in implementing these new 
initiatives. No attorney general I know, not a single 
prosecutor I have ever known, and certainly no judge or jury, 
wants to be responsible for the incarceration, much less the 
execution, of an innocent person.
    However, I urge the committee not to succumb to the mantra 
and drum beat of DNA by passing legislation that tramples State 
sovereignty, shatters the promise of the Effective Death 
Penalty Act, erases the progress we have made on behalf of 
victims, adds little to the rights of the truly innocent, but 
adds years of appeals of the very guilty.
    Thank you very much.
    The Chairman. Thank you, General. We appreciate it.
    [The prepared statement and attachments of Mr. Edmondson 
follow:]

               Prepared Statement of W.A. Drew Edmondson

    Thank you Mr. Chairman, Members of the Committee. I appreciate the 
opportunity you have given me to present testimony today on the very 
important issue of DNA testing.
    By way of brief background, I was elected Attorney General of 
Oklahoma in 1994 and was re-elected in 1998. Prior to this office, I 
served as an elected District Attorney for ten years and was in the 
private practice of law for two periods, during which I had an active 
criminal defense caseload which included homicide cases. I was serving 
in the Oklahoma Legislature in 1976 when our death penalty statute was 
re-enacted and voted for its passage.
    I also had the honor of working with Senator Hatch and others on 
the habeas corpus reforms included in the 1996 Anti-Terrorism and 
Effective Death Penalty Act. Some of you may recall the victims and 
family members of victims of the Murrah Building bombing who came to 
Washington wearing buttons with the number 17 and the international 
``no'' symbol on them, signifying the 17 years of appeals for Roger 
Dale Stafford, a notorious Oklahoma murderer, and their hope that the 
process would not be that lengthy for whoever might be convicted of the 
act which so devastated Oklahoma City on April 19, 1995.
    You responded to their pleas in 1996, but now, I fear, only four 
years later, you are considering legislation which might well erase 
those gains and throw additional, unnecessary roadblocks into our 
judicial process.
    Since the death penalty was re-enacted in 1976 Oklahoma has 
executed 27 convicted murderers, with all but three taking place during 
my five and one-half years as Attorney General. I have attached a very 
brief description of each of those cases to my written testimony to 
note the fact that DNA testing was not an issue in any of those cases, 
either because there were no samples from the perpetrator left at the 
scene of the crime for testing or because guilt was admitted and 
testing unnecessary or identity of the perpetrator was not at issue.
    There is nothing magic about DNA.
    The Innocence Protection Act of 2000 calls DNA., ``. . . the most 
reliable forensic technique for identifying criminals when biological 
material is left at a crime scene.'' That is accurate but misleading at 
the same time.
    1. DNA identifies the donor, not necessarily the perpetrator.
    2. DNA does not tell us when it arrived at the scene of the crime, 
only that it is there.
    3. DNA does not tell us how it arrived at the scene of the crime.
    4. DNA does not tell us who else might have been present when the 
DNA arrived at the scene or when the crime was committed.
    Robert Frost said that before he would build a wall he would ask 
himself what it is he is wanting to wall in or to wall out. Before we 
mandate a DNA test in an individual case or by legislation we should 
ask ourselves what, exactly, do we hope to prove or disprove. The 
essential question should be: If this test turns out exactly the way 
the applicant hopes it turns out will it show the applicant is 
innocent?
    Contrary to the expression of fact in the Innocence Protection Act, 
that DNA ``. . . . can, in some cases, conclusively establish the guilt 
or innocence of a criminal defendant,'' the truth is that in the best 
of cases a DNA test can only provide compelling evidence of either 
guilt or innocence. In most cases, including most murder cases, DNA 
testing is inapplicable because there are no samples connected to the 
suspect for testing or irrelevant because the identity of the 
perpetrator is not at issue.
    What Congress may do, in responding to a ``hot button'' problem 
which may not exist by passing a law that may not be needed, is 
establish an ``Ineffective Death Penalty Act'' that awards new avenues 
of appeal for convicted murders, years of additional anguish for the 
families of their victims, and an attack on state sovereignty that is 
breathtaking in its scope.
    Under S2073, the State of Oklahoma, even if it opts out of federal 
grant programs, can still be forced to adopt new hearing procedures, 
new avenues of appeal, new standards for representation and 
compensation, new jury instructions in capital cases, new requirements 
for preservation of evidence and new methods for convicted murderers to 
sue state officials including judges.
    Oklahoma enacted a DNA testing bill in this past session of the 
Legislature. It was signed into law by Governor Keating on June 1. 
While it gives our indigent defense system sole discretion to determine 
which cases to authorize for testing, the Act requires priority be 
given to cases presenting the ``opportunity for conclusive or near 
conclusive proof that the person is factually innocent by reason of 
scientific evidence.'' The Act applies to both capital and noncapital 
cases and is attached to this testimony.
    Prior to enactment of the testing bill, the Attorney General's 
office established a procedure for DNA review of all death penalty 
cases nearing the end of their appeals to determine whether there 
remained an issue of actual innocence which could be resolved by 
forensic testing. If such a case presented itself, the testing would be 
accomplished by agreement prior to an execution date being requested. 
No such case has arisen.
    Oklahoma, along with other states, is awaiting the product of the 
National Commission on the Future of DNA Evidence, which we anticipate 
will be a model law styled the Uniform Statute for obtaining 
Postconviction DNA Testing. While we have not yet seen that statute. I 
joined with 29 other state Attorney Generals to urge this committee and 
the Congress to be cautious about enacting new and onerous provisions 
in this area, at least until the model statute has been presented and 
reviewed. I have appended that letter to my testimony.
    Last Sunday's Tulsa World had a review of the book Actual Innocence 
which included a lengthy reference to the Oklahoma case of Ronald Keith 
Williamson, declared by the authors to have been proven innocent beyond 
a doubt after having been within days of being executed. It is a fact 
that Williamson was released on the strength of DNA testing, which 
showed that samples taken from the victim belonged to a third 
individual and not to Williamson or his co-defendant Dennis Fritz, who 
was also released from a life sentence. It is not true that Williamson 
was within days of being executed and it is arguable whether he is 
innocent.
    Oklahoma requested an execution date for Williamson in August 1994 
because his most recent appeal had been denied and his next appeal had 
not been filed. An execution date of September 27, 1994 was set with 
all parties understanding that it would be stayed when the defense 
filed its petition for writ of habeas corpus, the next step in the 
process. The habeas petition was filed on September 22, 1994 and we 
filed a response agreeing to a stay of execution, which was granted 
September 23, 1994. The threat of his execution on September 27 was so 
remote as to be nonexistent.
    Williamson was not convicted ``on the strength of a jailhouse 
snitch'' as reported. Among the direct and circumstantial evidence of 
his guilt was a statement he gave to the Oklahoma State Bureau of 
Investigation describing a ``dream'' in which he had committed the 
murder. Williamson said, ``I was on her, had a cord around her neck, 
stabbed her frequently, pulled the rope tight around her neck.'' He 
paused and then stated that he was worried about what this would do to 
his family.
    When asked if Fritz was there, Williamson said, ``yes.''
    When asked if he went there with the intention of killing her, 
Williamson said ``probably.''
    In response to the question of why he killed her, Williamson said, 
``she made me mad.''
    The Pontotoc County prosecutor had a tough decision to make on a 
re-prosecution of Williamson and Fritz and concluded that conviction 
was highly unlikely in the wake of the DNA evidence, even though the 
note left at the scene said ``Don't look fore us or ealse,'' indicating 
multiple perpetrators.
    Scheck, Neufeld and Dwyer can claim Williamson as poster material 
for Actual Innocence, but I would look further before creating federal 
legislation based upon his case.
    Oklahoma also saw the case of Loyd Winford Lafevers delayed over 
DNA evidence. With the execution date approaching, defense attorneys 
alleged in pleadings that test results could produce substantial 
evidence of innocence. After being denied access to the evidence by 
both state and federal courts, the 10th Circuit issued a stay, without 
affording the state an opportunity to respond, and the case is now on 
hold at least until July and probably longer.
    Lafevers and co-defendant Cannon burglarized, beat, kidnaped and 
ultimately doused with gasoline and set on fire, an 84 year old woman 
in Oklahoma City. They were tried together, convicted and sentenced to 
death. The appeals court reversed and ordered they be tried separately, 
which was done in 1993. Separately they were convicted and sentenced to 
death.
    Each co-defendant confessed to participant. Two pair of pants were 
seized from Cannon's residence and were tested. They both had blood 
type A on them, which was the blood type for both Cannon and the 
victim. In argument, the state submitted that one pair of pants could 
belong to Lafevers and the blood could be the victim's from the 
beating. Lafevers denied ownership of either pair of pants, saying he 
washed his pants at his mother's house.
    Having exhausted all state and federal appeals, to file a 
successive one in either courthouse would require a showing of (1) new 
evidence of (2) actual innocence. This evidence is neither. It is not 
new because the defense could have run DNA tests for the retrial in 
1993 and chose not to. It is not evidence of actual innocence because 
regardless whose blood is on those pants the evidence would not negate 
or even minimize the guilt of Lafevers.
    The tests determined the blood to be Cannon's. The defense is now 
testing, over the state's objection, hairs from the victim's clothing 
at the scene of the immolation. Again, not new and no potential for 
exoneration of Lafevers, and the victim's family is suffering through 
more delays and wondering what has happened to our criminal justice 
system.
    Fafevers not only admitted to his participation in the murder of 
this 84 year old woman, his confession was corroborated by witness 
testimony, the fact that after the killing he went to a strip joint 
smelling of gasoline and gave a stripper the victim's wedding ring, and 
a statement he gave another witness that he set the woman on fire and 
``watched her jump like a junebug on a hot sidewalk.''
    This scenario of justice delayed would be repeated over and over 
again with the mandates and lax standards of S2073.
    We are told there are people on death row or serving lengthy terms 
of imprisonment who are actually innocent and could be proven so by DNA 
testing. The executive director of our indigent defense system cited 
statistics from the Innocence Project that they had heard from 70 to 
100 Oklahoma inmates so situated. I asked for names and offered to 
review files and, if merited, to pay for testing out of the budget of 
the Attorney General's Office. I have attacked exhibits verifying that 
offer.
    Four months later those prisoners continue to languish and I have 
yet to be provided with a single name of a single prisoner who is 
arguably innocent and could be freed with a DNA test in Oklahoma.
    If the federal government moves in a direction to affect forensic 
testing in state courts, I would urge the committee to adopt the 
approach being suggested by Senator Hatch. Establish policies that 
encourage the states to proceed in this direction. Rather than 
authorizing tests whenever the results might be ``relevant'' to a 
theory of innocence, require a prima facie showing that identity was an 
issue at the original trial and that the DNA test, if the results were 
favorable, would establish innocence sufficiently that a reasonable 
jury would not convict.
    Rather than threatening loss of funds that are providing vital law 
enforcement needs and victim services, establish a new funding source 
to assist states in implementing these new initiatives.
    No Attorney General I know, not a single prosecutor I have ever 
known, and certainly no judge or jury, wants to be responsible for the 
incarceration, much less the execution, of an innocent person. If the 
legislature of Oklahoma can pass, and a conservative governor with a 
law enforcement background can sign, a state law facilitating forensic 
testing to aid the appeals of incarcerated individuals, then any state 
can.
    I urge the committee not to succumb to the mantra and drumbeat of 
DNA by passing legislation that tramples state sovereignty, shatters 
the promise of the Effective Death Penalty Act, erases the progress we 
have made in behalf of victims, adds little to the rights of the truly 
innocent but adds years to the appeals of the very guilty.
    Thank you.

 EXECUTIONS IN OKLAHOMA SINCE RE-ENACTMENT OF THE DEATH PENALTY IN 1976
------------------------------------------------------------------------
                                     Date of
              Inmate                execution    Facts pertinent to DNA
------------------------------------------------------------------------
Charles Troy Coleman.............     09/10/90  Shotgun slaying of
                                                 elderly couple; only
                                                 samples were of victims
Robyn Leroy Parks................     03/10/92  Shot gas station
                                                 attendant; only samples
                                                 were of victim;
                                                 defendant confessed
Olan Randle Robison..............     03/13/92  Three victims shot to
                                                 death; only samples
                                                 were from victims
Thomas J. Grasso.................     03/20/95  Confessed, waived
                                                 appeals
Roger Dale Stafford..............     07/01/95  Shot a mother, father
                                                 and son; only samples
                                                 were from victims. Also
                                                 did Sirloin Stockade
                                                 murders, execution of
                                                 witnesses to armed
                                                 robbery
Robert A. Brecheen...............     08/11/96  Surviving victim shot
                                                 defendant; arrested at
                                                 scene, no identity
                                                 issue
Benjamin Brewer..................     04/26/96  Confessed; no DNA issues
Steven Keith Hatch...............     08/09/96  Shot a mother, father,
                                                 son and daughter--son
                                                 and daughter lived and
                                                 testified; only samples
                                                 from victims
Scott D. Carpenter...............     05/08/97  Pled ``no contest'',
                                                 waived final appeals;
                                                 only samples from
                                                 victim
Michael Edward Long..............     02/20/98  Stabbed and shot 23 year
                                                 old mother and five
                                                 year old son--caught in
                                                 backyard with knife in
                                                 possession; waived
                                                 final appeals
Stephen Edward Wood..............     08/05/98  While serving two
                                                 consecutive life
                                                 without parole
                                                 sentences for murders,
                                                 stabbed another inmate;
                                                 waived final appeals
Tuan Nguyen......................     12/10/98  Killed wife and two
                                                 cousins aged 6 and 3;
                                                 only samples from
                                                 victims
John Wayne Duvall................     12/17/98  Confessed; no DNA issues
John W. Castro...................     01/07/99  Murdered two women,
                                                 confessed; no DNA
                                                 issues
Sean Sellers.....................     02/04/99  Murdered convenience
                                                 store clerk, then his
                                                 parents; defense of
                                                 satan worship; no DNA
                                                 issues
Scotty Lee Moore.................     06/03/99  Murdered former
                                                 employer, female
                                                 companion witnessed; no
                                                 DNA issues
Norman Newsted...................     07/08/99  Shot cab driver two
                                                 times in back of head;
                                                 only samples from
                                                 victim
Cornel Cooks.....................     12/02/99  Confessed; no DNA issues
Bobby Ross.......................     12/09/99  Shot police officer
                                                 three times in back of
                                                 head after armed
                                                 robbery interrupted;
                                                 only samples from
                                                 victim
Malcolm Rent Johnson.............     01/06/00  Semen, blood and hair at
                                                 scene consistent with
                                                 defendant; DNA never
                                                 requested
Gary Alan Walker.................     01/13/00  Serial killer, confessed
                                                 to three for life
                                                 sentences, convicted of
                                                 one for life without
                                                 parole, convicted of
                                                 instant case for death;
                                                 only samples from
                                                 victim
Michael Roberts..................     02/10/00  Killed 80 year old woman
                                                 with knife; blood on
                                                 defendant's tennis
                                                 shoes; DNA never
                                                 requested; defendant
                                                 confessed
Kelly Lamont Rogers..............     03/23/00  Confessed; DNA done and
                                                 matched
Ronald Keith Boyd................     04/27/00  Shot police officer at
                                                 convenience store; only
                                                 samples from victim
Charles Adrian Foster............     05/25/00  Killed elderly grocer
                                                 with baseball bat and
                                                 knife, fled scene for
                                                 weeks; only samples
                                                 from victim
James Robedeaux..................     06/01/00  Killed and dismembered
                                                 live-in girlfriend;
                                                 only samples from
                                                 victim
Robert J. Berget.................     06/08/00  Shot school teacher with
                                                 shotgun, confessed; no
                                                 DNA issues
------------------------------------------------------------------------

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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.)
---------------------------------------------------------------------------
    \1\ National Research Council, DNA Technology in Forensic Science 
(1992) (``NRC I Report''); National Research Council, The Evaluation of 
Forensic DNA Evidence (1966) (``NRC II Report'').
---------------------------------------------------------------------------
    In People v. Quintanilla (Aug. 11, 1994) AO54959 [nonpub.opn.], the 
defendant who had a substantial criminal record was convicted of 15 
felonies with enhancements in connection with the abduction and sexual 
assault of the victim. DNA PCR evidence was introduced to support the 
verdicts. The Court would not reach the merits of the admissibility of 
DNA PCR evidence because it found ``any error in connection with this 
evidence was harmless.'' The Court stated: ``The key evidence of guilt, 
aside from the victims' very positive in-court identifications, was the 
fingerprint on the car. The odds of that happening at random were at 
least as remote as any odds that have been claimed for RFLP 
fingerprinting. With an actual fingerprint no `DNA fingerprint' was 
needed, much less the more generalized results of DQ-alpha genotyping. 
As noted in the parties' briefs, since PCR testing `merely narrowed the 
group from which other suspects might be drawn rather than definitively 
identif[ied] appellant as [the victim's] assailant,' `the DNA evidence 
was more important in the investigatory stages of the case than it was 
at trial.' '' In addition to the fingerprint, the defendant was found 
in possession of the victim's jewelry. DNA evidence also excluded a 
different suspect in the case.
    In each case it is likely under Senator Leahy's bill that the 
defendant persuasively could argue he can obtain post-conviction 
testing by ``new'' DNA techniques. Each points out why it is imperative 
for a trial court decision to rest not merely on the availability of 
testable evidence, or a new DNA technique, but upon the facts of each 
case, which can show why further DNA testing would not undermine 
confidence in the case's outcome.
    In addition, you should know the laboratories that perform DNA 
tests in California routinely make DNA evidence available for defense 
testing. The results of any such DNA testing, however, are not divulged 
to the prosecution. Oddly, such results do not have to be factored into 
the calculus of whether the defendant can obtain post-conviction DNA 
testing.
    We also respectfully find the Leahy bill cost estimates to be 
vastly understated. The Leahy bill sets forth that the cost of testing 
samples is about $2,000-$5,000 per case. In reality, the cost of the 
bill will be much greater, and essentially compels the creation of a 
new infrastructure to meet its requirements. In addition to the cost 
estimate for testing an unknown number of samples, possibly reaching 
into the thousands each year in California, alone, some additional 
costs or matters which must be considered including the following:
    (1) State DNA Lab personnel to provide a first or second opinion in 
evaluating the quality of evidence and whether evidence has been 
properly handled.
    (2) The cost of taking DNA reference samples from the defendant and 
others associated with the case.
    (3) State DNA Lab personnel necessary to monitor and/or confirm 
testing if done by another laboratory, particularly if the testing 
points to an exclusion of the defendant or is inconclusive due to 
degradation of sample, etc.
    (4) The impact on State Lab program as a whole of court orders to 
produce results within a certain time frame.
    (5) State personnel time to testify in the many hearings involving 
post-conviction DNA testing, particularly hearings regarding the 
meaning of tests result, which also require paying defense attorneys 
and expert witnesses; DNA defense experts typicallymay be paid from 
$175 to $250 an hour.\2\
---------------------------------------------------------------------------
    \2\ Supreme Court noted that one expert made about $100,000 
testifying as a defense expert in 1990-1991, even though he had not 
received a research grant in about eight years. (See also Fiocoma, D. 
Unravelling the DNA Controversy: People v. Wesley, A Step in the Right 
Direction (1995) Journal of Law and Policy, fn. 105 [making similar 
observations, and noting ``Even other scientists are amazed to discover 
the amount of money that can be made from testifying for the defense at 
Frye hearings, despite the fact that it often means altering the truth 
about DNA reliability.''].)
---------------------------------------------------------------------------
    (6) Investigator, district attorney and attorney general resource 
time to litigate cases.
    (7) Trial and appellate court resources.
    (8) Leasing additional storage space for case evidence that cannot 
be destroyed (including bulky items such as cars, blankets, and 
bathrobes) and building freezer space to preserve evidence.
    In this regard, we note that the Leahy bill's directive to preserve 
``all biological evidence secured in connection with a criminal case'' 
throughout a person's entire period of incarceration is very broadly 
stated and may ignore the privacy rights of innocent persons. Victims, 
family members, witnesses, innocent suspects, and boyfriends may feel 
quite differently about whether their samples should be stored 
indefinitely by law enforcement pursuant to the Leahy bill.
    In addition, though it is difficult to make cost projections, we 
estimate the price tag of building and maintaining freezer space to 
``preserve'' evidence that is presently retained would be substantial. 
For 100,000 cases we conservatively estimate a cost of $7.2 million to 
build new facilities, with yearly energy costs of about $1.2 million to 
sustain the facilities plus th cost of leasing space.
    In our opinion, the huge resource allocation that the Leahy bill 
would require at the post-conviction phase is the wrong way to go. A 
fair and reasonable post-conviction DNA testing program will permit our 
emphasis where it should be: getting convictions right in the first 
place by using DNA evidence to properly identify suspects; so innocent 
suspects are spared searching investigations ... or even convictions, 
and suspects who are investigated are burdened on a greater factual 
basis. For this reason, expanding the national Data Bank program, and 
funding to eliminate the DNA Data Bank backlog is critical and we 
appreciate the Hatch Bill's attention to these matters.
    Finally, we emphasize that an elastic standard for post-conviction 
DNA testing ultimately does not serve the interests of justice for 
other reasons, as well.
    Any further delay in our pending criminal casework caused by large-
scale, court-ordered post-conviction DNA testing, ultimately could mean 
the difference between cases that can be prosecuted and ones that 
cannot--as investigative leads must be pursued, and witnesses located 
while memories are still fresh. Solving crime, of course, is important 
not only to law enforcement, but to victims and their families, who 
need closure for these cases.
    Likewise, delays in our pending case work and investigations 
imperil the right of persons wrongly accused of crime, like Mr. Raul 
Zamudio, who had his house burned down by community members who thought 
he was responsible for a series of sexual assaults and murders in their 
small town, and who spent over 75 days in jail until DNA evidence 
revealed his innocence and identified Gustavo Marlow, Jr., as the 
perpetrator. (See e.g., People v. Marlow (April 25, 1995) H0110375 
[previously published at 34 Cal.App.4th 460].)
    Similarly, because a substantial increase in workload due to post-
conviction DNA testing would impede our ability to solve old cases 
through Databank matching, it also delays the exoneration of innocent 
individuals through the data bank procedure. This is because the DNA 
Data Bank not only helps law enforcement identify and prosecute the 
persons responsible for otherwise suspectless crimes, it also helps 
identify wrongly convicted individuals such as Kevin Green, imprisoned 
nearly 17 years--until the DNA data bank evidence helped expose the 
truth. (See California A.B. 110 [adding Section 17156 to Rev.& Tax 
Code, relating to miscarriage of justice, and ``appropriating $620,000 
from the General Fund to the Department of Justice for payment to Kevin 
Lee Green'' related to his unlawful incarceration for crimes committed 
by Gerald Parker].)
    Moreover, it is our opinion the broad access to post-conviction DNA 
testing provided for in the Leahy bill does not best serve the rights 
of the wrongly convicted persons the bill ostensibly is designed to 
protect. If the Leahy bill passes, the truly innocent will find their 
claims further frustrated and delayed as they face courts clogged with 
meritless claims.
    Curiously, the Leahy bill states ``the number of cases in which 
post-conviction DNA testing is appropriate is relatively small and will 
decrease as pretrial testing becomes more common and accessible.'' (See 
Leahy bill, Finding 11.) If this is the case why isn't the bill 
reasonably tailored to permit testing only in those small number of 
cases where identity is at issue, and actual innocence can be 
ascertained by specific DNA tests. Why not put reasonable parameters on 
access to post-conviction DNA testing, so it is both effective and 
affordable.
    In our opinion, the best approach would provide fair access to 
testing for the wrongly convicted, while respecting the finality of 
convictions, and the basic tenets of our criminal justice system.
    Thank you.

    The Chairman. Judge Baird, we will turn to you.

                 STATEMENT OF CHARLES F. BAIRD

    Mr. Baird. Good morning, Chairman Hatch and Senator Leahy 
and members of the committee. My name is Charlie Baird. I 
presently serve as co-chair of the National Committee to 
Prevent Wrongful Executions. Because the committee has not yet 
crafted its recommendations, I speak not for the committee as a 
whole, but as a member of the committee and as one who has 
years of direct experience with the Texas criminal justice 
system.
    I am a former judge on the Texas Court of Criminal Appeals, 
the highest criminal court in Texas. I served on that court for 
8 years. In that time, I participated in more than 400 capital 
punishment appeals, and I reviewed numerous writs of habeas 
corpus from capital defendants and literally thousands of 
petitions and writs from non-capital cases.
    In that judicial capacity, I authored many opinions which 
affirmed the conviction and sentence of death. I voted for many 
more opinions which did the same thing, and many of those 
defendants have, in fact, been executed. Prior to my service on 
the court, I practiced law in Houston, Texas. In total, I have 
more than 20 years of direct experience of working in the Texas 
criminal justice system.
    The criminal justice system can be improved markedly with 
the passage of the Leahy-Smith-Collins bill. Please permit me 
to tell you why I feel confident in making that statement.
    First, the legislation makes DNA testing available in cases 
where it is not presently available. This is very important 
because DNA can often determine the ultimate question in any 
criminal trial, the guilt or innocence of the accused. In Texas 
and around the country, several inmates on death row or in 
prison have been exonerated through the marvel of DNA testing. 
Those innocent individuals were destined to a life of 
confinement or to be executed for crimes they did not commit. 
They now have their freedom. That is the gift of DNA.
    However, as we know in Texas, oftentimes conclusive DNA 
testing which exonerates the defendant is not enough. In this 
instance, I speak of an inmate named Roy Criner. Mr. Criner was 
charged with the rape and murder of a 16-year-old girl. The 
State's theory of prosecution was that Mr. Criner was the sole 
perpetrator of this offense.
    Crucial to the State's theory of prosecution was evidence 
that the semen found in the victim was consistent with Mr. 
Criner's blood type. The jury convicted Mr. Criner and assessed 
his punishment at 99 years in prison. When Mr. Criner's case 
came before the Court of Criminal Appeals, I voted to affirm 
that conviction and sentence.
    It is important to note that Mr. Criner's trial occurred in 
1990, before DNA testing was considered scientifically sound 
and accepted in most courts. As technology improved and DNA 
became more accepted, Mr. Criner sought and eventually obtained 
permission to have the semen genetically tested. Mr. Criner's 
family paid for that testing. That test exonerated Mr. Criner.
    When the district attorney reviewed the results, he was 
skeptical and insisted on his own test. That test was conducted 
by the Texas Department of Public Safety. That test, the second 
test, also exonerated Mr. Criner. The trial court then 
conducted a hearing where both test results were admitted into 
evidence. Following that hearing, the trial recommended that 
the Texas Court of Criminal Appeals, my former court, order a 
new trial for Mr. Criner.
    However, six members of the Court of Criminal Appeals voted 
to deny Mr. Criner a new trial. Their reasoning was twisted, 
contorted and confused. Although I and two other judges 
dissented, we could not carry the day. So today, as I appear 
before you, Senators, in Texas we have a man incarcerated for 
the remainder of his life who has two DNA evidence tests which 
conclusively establish his innocence.
    While Mr. Criner has no remedy in Texas, the Leahy-Smith-
Collins bill would encourage States to provide a remedy. 
Moreover, the legislation would provide a Federal remedy for 
State inmates if their particular States did not offer a 
remedy. The result is that under the Leahy-Smith-Collins 
legislation, all inmates who are able to prove their innocence 
through DNA testing can gain their freedom.
    Mr. Criner is not the only Texas inmate who has been 
exonerated. Kevin Byrd was convicted of rape in 1985. He was 
exonerated in 1997, when DNA evidence conclusively established 
his innocence. Even though Mr. Byrd spent 12 years in prison, 
because of DNA testing he is now a free man. A.B. Butler has 
also gained his freedom through DNA testing. He was convicted 
of rape in 1983 and served 17 years in prison for a crime he 
did not commit. While DNA cannot give Mr. Butler back those 17 
years, DNA did secure his freedom.
    The criminal justice system should embrace DNA testing 
because it has the potential of eliminating human error and 
conclusively establishing the guilt or innocence of the 
accused. Where DNA is involved, the legislation must have two 
vital components. First, it must permit access to the evidence. 
For this evidence to be accessible, it must be preserved, and 
the defendant must have the ability to subject that evidence to 
testing.
    In Texas, there is no right to post-trial DNA testing. It 
is left totally to the discretion of the trial judges. In 
Texas, there is duty to preserve the evidence for later DNA 
testing. Indeed, this evidence is routinely destroyed. In fact, 
after Kevin Byrd was exonerated by DNA testing, the State 
secured orders for the destruction of 50 rape kits in 50 
separate cases where the defendants are still incarcerated. 
Because this is permissible in Texas, those defendants will 
never have an opportunity to prove their innocence.
    Second, courts must be open to receive this evidence. Too 
often, procedural bars prevent this evidence from being 
considered. The doors of our courts must always be open to 
consider cases where a person deprived of his liberty can prove 
his innocence.
    While we all recognize that DNA testing can transform the 
human frailties of the criminal justice system to the certainty 
of science, we must also recognize that DNA is not present in 
every case. And in these cases, the criminal justice system 
must operate as designed, to reach a correct result through the 
adversary system of two attorneys competing mightily before an 
impartial judge and jury.
    However, far too often the adversary system breaks down, 
and because the defense attorney is not experienced, not 
competent, or in some cases not even awake, the verdicts from 
trials where these types of defense representation occurs are 
not reliable and work only to undermine and destroy confidence 
in the judicial system.
    This legislation is especially important because it would 
establish national standards for the representation of capital 
defendants. Establishing this national standard would guarantee 
that those who are charged with capital crimes will be 
effectively represented before society extracts the ultimate 
punishment.
    This legislation is necessary because many States do not 
have statewide guidelines for the qualifications of counsel, 
and some States like Texas leave it totally up to the trial 
judges to determine counsels' level of competence. Therefore, 
in Texas, where there are 700 separate judges, each judge 
operates under his or her own definition of competent counsel. 
This legislation would ensure that every indigent defendant, 
regardless of the locality of his alleged offense, would 
received qualified, experienced and competent counsel. This 
legislation fulfills the guarantees of the sixth amendment to 
effective assistance of counsel to all indigents accused of a 
capital crime.
    The reforms I urge you to adopt will benefit victims as 
well as criminal defendants. No one, and least of all victims, 
wants the agony of retrials because of incompetent lawyers who 
make mistakes, who fail to present all the evidence, and who 
otherwise fail to make the system truly adversarial. No one 
wants a system that convicts the wrong person and lets the real 
perpetrator walk the streets, free to victimize again.
    Thank you very much.
    The Chairman. Thank you, Mr. Baird.
    Mr. Marquis.

                 STATEMENT OF JOSHUA K. MARQUIS

    Mr. Marquis. Thank you, Chairman Hatch, Senator Leahy, and 
honorable members of the committee. I appreciate the 
opportunity to come here and speak to you today. My name is 
Joshua Marquis and I am the elected District Attorney in 
Clatsop County. That is where the Columbia River meets the 
Pacific at the end of the Lewis and Clark Trail.
    Like General Edmonson, I am a Democrat. I remember meeting 
Senator Leahy when I was a delegate at the Democratic 
Convention in 1996, and he shared some of his experiences as a 
prosecutor in Vermont.
    Senator Leahy. You remember.
    Mr. Marquis. I remember.
    I want to commend Senator Leahy for bringing this important 
issue up.
    I am not scientific expert on DNA, and I bring a different 
perspective than many of your other witnesses. I am a working 
prosecutor who has argued successfully for the death penalty in 
one case, chose not to seek it in many others, and I have even 
been a defense attorney, in which I have successfully kept my 
clients off death row.
    I am the person who has to make the decision whether to 
seek the death penalty in my office, and I am the person who 
has to make the decision not to. So this is not an academic or 
esoteric discussion for me. And from that perspective, I 
commend you for bringing this issue to the front. But I believe 
that language is absolutely essential when we are talking about 
something this important, and that is the reason I strongly 
urge you to consider Senator Hatch's bill and the language of 
his bill.
    Senator Smith recently said back in our home State that he 
wants to make a good system nearly perfect, and I think that is 
an appropriate and laudable statement. But I think the words 
are very important, ``near perfect,'' because no human endeavor 
is without any possibility of error. And if we are going to 
demand one hundred-percent perfection, as some death penalty 
opponents have suggested, we literally are going to have to 
abolish not only the death penalty, but all long terms of 
imprisonment.
    Any of you who have arrived or will depart from this 
hearing by commercial airliner are probably taking a greater 
risk of death than we are of wrongfully executing an innocent 
person.
    Senator Biden. We can't do anything about that.
    Mr. Marquis. We can't, and I know Senator Wyden and 
Congressmen DeFazio have some ideas on the Transportation 
Committee.
    There are some proponents of 2073 who barely hide their 
agenda to basically abolish the death penalty, ignoring the 
almost 70 percent consistently of Americans who support 
theconcept of capital punishment. These abolitionists, again, demand 
100-percent perfection.
    A study recently orchestrated by an antideath penalty group 
was released yesterday by a PR firm here in Washington, DC, 
which makes the counterintuitive claim that the high degree of 
reversals means that the system is flawed so much that it is 
unreliable. That is a completely counterintuitive argument 
which would also argue that you shouldn't get into a car that 
has an air bag or a seat belt because obviously something with 
those kinds of devices in it is much too dangerous to ride 
around in.
    There is a concerted campaign in this country to shift the 
debate about capital punishment from a legitimate issue about 
the morality of the death penalty to framing the question as I 
am sure Mr. Scheck will very ably do: well, OK, maybe you are 
for the death penalty, but surely you are not for executing 
innocent people. That is sort of like putting together a 
commission, frankly, to prevent kicking small children across 
the floor with steel-toed boots. No one is for that.
    Let me speak specifically to the DNA testing bills. I am a 
member of the National DA's Association Board of Directors. I 
am not speaking for that Board. We haven't had the chance to 
meet since these proposals have come in, but I know the 
prosecutors across this country support reasonable legislation 
that ensures the integrity of the process.
    The concept behind Senator Leahy's bill has value, but it 
is drafted so broadly and has so few standards that it would 
create a useless tidal wave of litigation from bored and guilty 
criminals who simply demand DNA testing whenever there is a 
possibility it will reveal relevant evidence. And I would cite 
the committee to the standard that is used in the Supreme Court 
decision in Herrera v. Collins, where they talked about a truly 
persuasive demonstration of actual innocence. I mean, there is 
very much a difference there. I think Senator Hatch's proposals 
would fix that problem. Without that fix, let me give you a 
very concrete example.
    I am about to retry for the fourth time a man who murdered 
two people in central Oregon. The defendant has never claimed 
actual innocence. That State of Oregon has paid probably close 
to $2 million to defend this man. He was represented by 
competent indigent lawyers. Without the Hatch bill definitions, 
this man could come back into court a fifth time and claim that 
his nine previous appellate and trial lawyers didn't know what 
they were talking about, and that because we have a bunch of 
items like a TV set that has blood on it that we have been 
keeping in a storage locker for 13 years since these people 
were murdered, he could say, ah-hah, I heard that there is 
another inmate in prison and he actually did it and he told me 
he left his blood at the scene, and I demand that you get out 
that TV set and you test it for DNA.
    Oh, you haven't preserved that test? Some clever defense 
attorney will get up and say that prosecutor has deliberately 
destroyed that information. And that person will get, at 
minimum, a new trial, or might get free, and I am going to have 
to tell those victims to come back for a fifth time for trial. 
And I don't know if I can do that.
    DNA can be a marvelous science. As early as 1983, the 
English used it in Narborough, England, where a 15-year-old 
girl named Lynda Mann was murdered. The constables went out and 
decided to DNA-test every single male adult in the community. 
And after 4 years, and unfortunately another murder, they 
caught a man, appropriately named Colin Pitchfork, in 1987.
    But it is important to remember that even in those cases 
when DNA is overwhelming, such as the O.J. Simpson case, 
skillful defense attorneys can convince juries to simply 
disregard the scientific evidence. In some cases, like 
stranger-to-stranger cases that have been described by some of 
the other witnesses, DNA evidence can be dispositive, but there 
are many, many murders in which it is not. In a classic 
domestic violence murder, it won't really answer any questions.
    I have handled about two dozen homicide cases. In only one 
was DNA an issue, and it was helpful, but it was not 
dispositive. The idea of allowing modern technology to convict 
the guilty and free the innocent is already under widespread 
use. Although existing DNA labs already have a serious backlog, 
the Justice Department has estimated that there are about 
350,000 DNA samples awaiting testing. The DNA resources in our 
Nation are already taxed beyond their abilities.
    The actually innocent may find themselves at the very end 
of a long list if we make the list too large. Senator Hatch's 
allocates money to strengthen those resources, and I know that 
Senator Feingold and I think Senator DeWine have sponsored a 
bill, the CODIS bill, to help fund DNA testing, and I applaud 
that.
    One of the witnesses you will hear from in a few minutes is 
Barry Scheck, a very skilled defense attorney. In an op ed 
piece last week, he painted a picture of a justice system where 
eyewitnesses can't be trusted, the cops lie, prosecutors 
fabricate, and defense attorneys are incompetent. I don't 
believe we live in that country.
    Mr. Scheck has correctly pointed out that DNA can not only 
exonerate, but can also convict. And I look forward to the day 
when people like him bring their considerable legal talents to 
bear to aid some small-town, underfunded prosecutor who needs 
to use DNA to convict a killer.
    Let's remember who we are trying to protect--the innocent--
and let's use that word carefully. We mean people that didn't 
do it. And let's never forget the hundreds of thousands of 
murder victims that we have to answer to, all of us in the 
criminal justice system.
    Thank you very much, Senator.
    [The prepared statement of Mr. Marquis follows:]

                Prepared Statement of Joshua K. Marquis

    I am honored to be here today and thank Chairman Hatch, Senator 
Leahy, Senator Smith, and the honorable members of this Committee for 
giving me the chance to testify about DNA testing legislation.
    I'm the elected District Attorney in Clatsop County, on Oregon's 
North Coast. I have handled more than two dozen homicide cases and have 
four aggravated murder cases pending, two of which potentially involve 
the death penalty. Before being appointed and then elected District 
Attorney, I was the chief deputy to other Oregon counties. I have also 
served as the speechwriter to former California Attorney General John 
Van de Kamp, and I worked as a reporter and columnist for the Los 
Angeles Daily Journal newspaper.
    I serve as co-chair of the Media Committee on the Board of the 
National District Attorneys Association. I'm also Vice-President of the 
Oregon District Attorneys Association.
                   dna, useful tool or magic bullet?
    DNA can be a marvelous forensic too, but it is not a magic bullet. 
In 1983, in the English village of Narborough, 15-year-old Lynda Mann 
was murdered. Two years later another young girl in the village was 
murdered. DNA technology was in its infancy, but local constables got 
the idea to use DNA technology. They systematically collected blood 
samples from every adult male in the town, and methodically and 
eventually caught the rapist, appropriately named Colin Pitchfork, in 
1987.\1\ But it is important to remember that even when DNA evidence is 
overwhelming, as it was in, for example, the OJ Simpson case, a 
skillful defense lawyer can convince a jury to ignore the scientific 
evidence.
    The idea of allowing modern technology to convict the guilty and 
free the innocent is now in widespread use, and existing DNA labs are 
seriously backlogged. The Justice Department has estimated there are 
350,000 DNA samples currently awaiting testing.\2\
    The concept behind Senator Leahy's bill has value, but standards 
are necessary to make it workable. Without standards it could open the 
floodgates to a deluge from guilty and/or simply bored criminals who 
will demand DNA testing whenever there is even a possibility it will 
reveal relevant evidence. Mr. Scheck's Innocence Project requires that 
DNA testing be positive of actual guilt or actual innocence, a far cry 
from the Leahy bill. In some cases, like a stranger-to stranger rape, 
DNA can be dispositive. But in a domestic murder the presence of DNA 
evidence answers no significant questions. Senator Hatch's proposals 
recognize that difference.
    Let me give you a concrete example, I tried, for the second and 
third time, and now I or perhaps another prosecutor will need to try 
for the fourth time, the penalty phase of a vicious murder of two 
Oregon residents who were slaughtered in their home in 1987. The 
defendant has never claimed actual innocence. The state of Oregon has 
shelled out more than million dollars for his defense. The defendant 
has been sentenced to death by three separate juries. Without the 
definition provided in the Hatch bill, this defendant could come into 
court a fifth time, claiming his nine previous trial and appellate 
lawyers forgot to raise a DNA issue. He could claim that a spot of 
blood on a TV set that has been kept in a locked mini-storage locker 
might show relevant evidence that someone else's blood was at the crime 
scene. DNA technology is improving almost monthly. However, since no 
one has ever claimed the TV set has relevant biological evidence, the 
DNA sample may well be untestable or seriously contaminated. A defense 
attorney might then get up in court and claim that the prosecutor has 
allowed critical evidence that could clear the client to be destroyed. 
This killer would get yet another trial, forcing the victims to come 
back again. Or, worse yet, he might even get out of prison.
                    ``innocent'' or just overturned?
    As a career prosecutor my worst nightmare is that I convict an 
innocent person of a crime that sends them to prison, to say nothing of 
death row. In this country we have an incredibly elaborate appellate 
system that recognizes that police, prosecutors, judges andjuries are 
not infallible. More than 400,000 homicides cases have been charged 
since the Supreme Court, in 1976, allowed states to re-implement 
capital punishment. Somewhere between five and ten thousand of those 
cases, depending on the source and the way they are counted, have 
garnered the death penalty. In that same time, for those same numbers, 
death penalty opponents have cited 87 cases in which evidence later 
surfaced that showed the condemned to be actually innocent or raised 
sufficient doubts to remove them from death row. Only eight of these 
cases have involved DNA.\3\
    And we must be careful with our use of the language. The media have 
interchangeably used the word ``exonerated'', ``freed'' or ``cleared'' 
to describe cases where the actual guilt of the defendant is still very 
much an open question. Make no mistake about it: It is far from clear 
that we are really talking about ``actually innocent.''
    While there are many people, like my own state's Senator Gordon 
Smith, whose goal is to make our system more efficient, there are also 
those whose real intent is simply to abolish the death penalty. On 
National Public Radio last week, Peter Neufeld admitted that he will 
never be satisfied with any system of capital punishment. The American 
people have consistently supported the death penalty as a concept. A 
recent Newsweek poll showed more than 70 percent support for capital 
punishment. In my own state a recent poll showed more than two-thirds 
of Oregonians would vote against the so-called ``Life for Life'' 
initiative which would abolish the death penalty that our state's 
voters popularly abolished in 1964, and re-instated--more than once--
twenty years later.
    Honorable and principled people like my state's former Senator and 
Governor Mark Hatfield, have sincere moral objections to the death 
penalty. But some opponents have recognized they have lost that battle 
with the public and are attempting now to re-shape the discussion in 
the form of a new urban myth: that our justice system is growing 
increasingly reckless in its zeal to execute and, worse yet, that 
significant numbers of innocents are ending up on death row. This is a 
myth in search of a crisis that doesn't exist.
                          why the system works
    Another study, launched by anti-death penalty advocates here in 
Washington on Saturday, June 10th, made the bizarre claim that because 
America's state and federal courts overturn such a high proportion of 
capital cases, that must mean the system ``is so fraught with error as 
to make it unreliable.'' Interestingly, the states with the lowest 
reversal rates in this somewhat recycled study are Virginia and Texas, 
states that abolitionists constantly attack for their capital 
punishment systems. The state with supposedly one of the ``worst'' 
reputations--Illinois--in fact overturns 66 percent of cases, according 
to Professor Leiban's study.
    The study inadvertently or intentionally misses the obvious point. 
When we apply to death sentences what Justice Powell called ``super due 
process,'' as well we should, we would expect to find the extreme 
scrutiny that results in otherwise clearly guilty defendants getting 
yet another trial. But make no mistake, almost every last one of 
thesecases is not an ``innocent on death row.'' It is someone whose 
case is overturned, like two cases I'm getting ready to retry, solely 
because the victim's family was allowed to tell the sentencing jury 
something about what the victims were like as living human beings, 
before the defendant robbed them of their lives.
    We can and must use technology to accomplish what Senator Smith has 
called ``making a good system near perfect.'' ``Near perfect'' is the 
operative expression. No human endeavor is without risk. Our elaborate 
system of appeals in capital cases has the lowest error rate not only 
of any criminal sanction in the world, but is far less risky than 
elective surgery or a trip to the pharmacy. We must never forget the 
other, massively larger part of this risk-benefit analysis--the 
thousands of truly innocent victims who die at the hands of criminals 
that the legal system has failed to hold accountable.
    I commend Senator Leahy for bringing the issue before your 
committee, but I strongly urge you to adopt the precise and effective 
language of Chairman Hatch's proposal. The standards laid down in 
Chairman Hatch's bill would ensure that even cases where defendants 
have exhausted state and federal appeals would be eligible for DNA 
testing if the testing would have the potential to show ``actual 
innocence.'' Chairman Hatch's standard is similar to the statutes in 
New York and Illinois, as well as the standard enumerated by the United 
States Supreme Court in Herrera v. Collins \4\ Without this preciseness 
of language we will be opening the barn door to a flood of demands by 
jail-house lawyers who are indisputably guilty. The DNA resources in 
our nation are already taxed beyond their abilities. Senator Hatch's 
bill allocates money to strengthen those resources.
    I urge you to look carefully at this issue and consider both the 
``actually innocent,'' a term which 99 percent of the time describes 
the killers' victims, and the ``actually guilty.''
    And I thank you again for this opportunity.
                                endnotes
    \1\ The Blooding, Joseph Wambaugh, 1989.
    \2\ David Boyd, DOJ Office of Science & Technology, 2000.
    \3\ Amnesty International USA, Program to Abolish Death Penalty, 
2000.
    \4\ Herrera vs. Collins, 506 U.S. 390(1993).

    The Chairman. I think all of you have been excellent. I 
have really appreciated this, and, of course, along with 
Senator Leahy and others on this committee, believe we have to 
resolve these problems in a way that is best under the 
circumstances. That is why we file these bills, so that we can 
have all kinds of comment and criticism, and then we get 
together and see what we can do to resolve the problems. There 
is no question, there are some distinct differences between the 
two bills, but nevertheless both are well intentioned and both 
hopefully will help solve some of these very serious problems 
in our society.
    Now, Mr. Edmonson, you described the case of Loyd Winford 
Lafevers who confessed two and was twice convicted of the 
brutal kidnapping, beating, and murder burning of an elderly 
woman. In addition, Lafevers' testimony was corroborated by 
witness testimony. His execution was recently postponed to 
allow for post-conviction DNA testing even though there is 
absolutely no doubt about his guilt.
    Let me just ask you this question. Why not give Federal 
judges wide latitude to consider motions for post-conviction 
DNA testing? Is there a danger in providing too much discretion 
in authorizing post-conviction testing?
    Mr. Edmonson. The danger from the standpoint of the----
    Senator Thurmond. Mr. Chairman, pardon me for interrupting. 
I have got to leave and I would like to ask that my statement 
follow that of the ranking member of the committee.
    The Chairman. Well, I will be happy to put that in the 
record, without objection. Thank you, Senator Thurmond. We 
appreciate you being here.
    [The prepared statement of Senator Thurmond follows:]

 Prepared Statement of Senator Strom Thurmond, A U.S. Senator From the 
         State of South Carolina, Regarding Post-Conviction DNA

    Mr. Chairman, I am pleased that we are holding this hearing today. 
DNA testing is the greatest advancement in criminal law since 
fingerprinting. In fact, law enforcement is beginning to maintain DNA 
samples in much the same way as it keeps fingerprints, and this 
development is revolutionizing crime fighting. The more complete and 
integrated our DNA criminal databases are throughout the country, the 
more violent crimes we can solve.
    Of course, DNA is just as effective at establishing innocence as it 
is at determining guilt. Indeed, opponents of capital punishment have 
seized upon cases where a defendant has been taken off death row 
because of DNA testing as proof that the death penalty is broken and 
should be discarded. I strongly disagree.
    The death penalty is a necessary form of punishment for some of the 
most heinous and inhumane crimes. Sometimes it is the only punishment 
that can provide finality for victims and that truly fits the crime.
    Only steadfast opponents to the death penalty can argue that it is 
used too often in the federal system today. Last year, my subcommittee 
found that the Attorney General permits prosecutors to seek the death 
penalty in less than one-third of the cases when it is available. Also, 
we discovered that the Attorney General has established an elaborate 
review system at Main Justice to consider whether a U.S. Attorney may 
seek the death penalty. Her review permits defense attorneys to argue 
that she should reject the death penalty in a particular case, but it 
does not permit victims to argue for the death penalty.
    Capital punishment has long been under attack in the media and on 
the political left, and today the assault is at least as relentless as 
it has been in decades. Yet, the public continues to strongly support 
the death penalty, and its use is more common today than it has been 
since the Supreme Court reinstated the death penalty in 1976.
    I welcome the expanded use of DNA testing to help eliminate any 
doubt about a defendant's guilt or innocence. We must do all we can to 
promote absolute certainty in our criminal justice system, especially 
when the death penalty is at stake. As we do, we will actually make the 
case for the death penalty stronger, not weaker.
    The criminal justice system in America is not perfect, but overall 
it works quite well. It is our responsibility to make any needed 
reforms over the federal system, but the states must maintain 
responsibility over their systems. The Federal government can provide 
resources to encourage them along the way, but the solution is not a 
federal takeover of the administration of justice throughout the 
courtrooms of America.
    I welcome our witnesses to discuss this matter.

    The Chairman. Mr. Edmondson.
    Mr. Edmondson. The danger that the State recognizes in that 
kind of a scenario is simply the open-ended extension of the 
appellate process and the lack of finality to the appellate 
process.
    The case that you mention, the Lafevers case, is 
particularly egregious because at its retrial in 1993 where 
Lafevers was again given the death penalty, DNA testing was 
discussed by defense counsel and they chose not to have DNA 
testing done. And it was only on the eve of execution that they 
decided at that hour that DNA would be relevant.
    The State objected on the grounds that it could not 
possibly under any circumstances, regardless of whose blood was 
on the pants that they wanted tested, show Lafevers innocent 
under any theory. Notwithstanding that, the order was entered, 
the stay was placed, and that case is on hold indefinitely.
    The Chairman. I see.
    Ms. Camps, do you believe that a post-conviction DNA 
testing statute should require a prisoner to make an initial 
showing that testing has the potential to prove innocence in 
order to obtain testing, and if so, why?
    Ms. Camps. I think that is really a critical component of 
the bill because it is really the appropriate standard that we 
are looking for in determining access to post-conviction DNA 
testing, not whether there should be access, but that standard 
for it without an assertion of actual innocence, without 
identity being at issue, the DNA is not always material to the 
case. And so that could be an enormous problem for us if there 
is a wide open standard which is based merely on relevancy, 
such as the Leahy bill, because relevancy, no matter how weak 
the evidence may be, if it tends to prove an issue to the jury, 
it might be considered evidence that could be admitted under 
the Leahy bill.
    The Chairman. Thank you.
    General Spitzer, you stated under the New York statute 
post-conviction testing is allowed only, quote, ``upon the 
court's determination that if a DNA test had been conducted on 
such evidence, and if the results had been admitted in the 
trial resulting in the judgment that there exists a reasonable 
probability that the verdict would have been more favorable to 
the defendant,'' unquote.
    Now, interpreting this statute, the New York court, in 
People v. Tukes ruled that, ``The legislature intended that DNA 
testing be ordered only upon a court's threshold determination 
that testing results carry a reasonable potential for 
exculpation.'' My legislation is based on the New York statute 
in key respects. Both allow post-conviction DNA testing only in 
cases where testing has the potential for exculpation.
    Do you believe that it is appropriate to require that post-
conviction testing have some potential for exoneration, or 
should testing be required in any case where it, quote, 
``may,'' unquote, produce relevant exculpatory evidence? Do you 
share any of Mr. Edmondson's and Ms. Camps' concerns about 
requiring testing in unnecessary cases?
    Mr. Spitzer. I think anybody who speaks and is mindful of 
the budgetary implications for any governmental entity 
obviously shares their concerns. The question is are they 
outweighed by the larger concerns that militate in favor of the 
Leahy bill. And without adopting specifically the language that 
is in the Leahy bill, I think that clearly there is a 
divergence between what I view as the excessively high 
threshold that you have set for the prime facie showing that 
would be necessary to get the testing versus any absence of 
standards at all.
    I think what we are seeking is to balance these concerns 
and ensure--and this is what this statute is all about--ensure 
that we will permit access and will permit testing to be done 
where--and I think the New York statute is rightfully phrased--
there is a reasonably probability that the verdict would have 
been more favorable to the defendant.
    There is nothing magical about that phrasing. I have 
testified that it has worked. I think that Senator Leahy has 
tried to craft a standard that perhaps has a slightly lower 
threshold. I think that I would in this context err on the side 
of a lower threshold rather than a higher threshold. I have 
heard the testimony of my colleagues, individual cases where, 
of course, the system might be abused. That is not dispositive 
testimony, in my view.
    What we are looking for is those cases where we need to 
guarantee access to testing to permit defendants to prove and 
obtain the exculpatory evidence. I think the New York statute 
has worked. I do not think it is magical, but I would certainly 
err on the side of a lower threshold rather than a higher one, 
and I prefer the Leahy statute.
    The Chairman. Well, I think my legislation contains a fair 
and reasonable standard for testing. To obtain post-conviction 
testing, the defendant must make a, quote, ``prime facie,'' 
unquote, showing that, one, identity of the perpetrator was an 
issue at trial; and, two, DNA testing would, assuming 
exculpatory results, establish the defendant's innocence of the 
crime.
    Now, a prime facie showing, in my opinion, is a lenient 
requirement. In 1977, the Seventh Circuit defined the term 
``prime facie showing'' in the Federal Criminal Code. The court 
defined prime facie showing as, ``simply a sufficient showing 
of possible merit to warrant a fuller exploration by the 
district court.''
    In other words, the legislation that I have filed requires 
a showing that post-conviction testing has the potential to 
prove innocence. This is consistent with, and I think arguably 
more lenient than the Illinois, New York, and Arizona post-
conviction DNA statutes.
    Mr. Spitzer. Well, we do not feel that it is more lenient.
    The Chairman. I would like you to look at it because I 
think that is the case.
    Mr. Spitzer. Well, I have heard you say so. I respectfully 
disagree with you. I think there are also instances where 
innocence, per se, may not be at issue, where there would be 
factors relevant to sentencing, certainly in the capital 
context where it would be important to permit testing even if 
somebody's presence at a crime scene was not the only factor, 
where DNA testing would nonetheless shed light on the nature of 
the crime and what happened.
    So I think there are several elements in the prime facie 
standard that you have put together here, and I admire your 
bill and I think it is an enormous step forward. The notion of 
Federal guidelines is something that I fully support, despite 
the federalism concerns my colleagues have raised. Nonetheless, 
when it comes to crafting theparticular standard that is in 
your bill, I think again there are pieces there that I would, with all 
due respect, disagree with.
    The Chairman. Thank you. My time is up. I will submit the 
rest of my questions in writing. I am sorry I didn't get to 
ask----
    Senator Leahy. Go ahead.
    The Chairman. Could I just take one or two questions 
because I would like to get one for each of you?
    Senator Leahy. Sure.
    The Chairman. Let me just ask each of you a question.
    Mr. Marquis, there have been reports in the media recently 
about poorly funded indigent criminal defense lawyers. I am 
concerned about that, too. Are you aware that the Federal 
Government, through the Administrative Office of U.S. Courts, 
spends approximately $20 million per year in payments to 
criminal defense lawyers to represent State death row inmates 
just in Federal habeas appeals? As a prosecutor from a rural 
county, do you always have greater resources than the criminal 
defendants that you prosecute?
    Mr. Marquis. No. Actually, Senator, it is the exact 
opposite. As I say, I have prosecuted probably 3 capital cases 
and 12 or 13 noncapital murders. I have been outspent a minimum 
of 10 to 100 to 1 by indigent defense in the State of Oregon.
    I don't object to that. I think that if you are going to 
put somebody on trial for their life, you ought to give them 
good defense. But I think this idea that across the United 
States these are drunk, sleeping lawyers is a myth. I just 
don't think it is true.
    The Chairman. Well, thank you.
    Mr. Baird, just one question to you and then I will submit 
the rest of my questions because I don't want to impose on my 
colleagues' time. Mr. Baird, you described the Criner case in 
detail. Clearly, Mr. Criner would be able to obtain testing 
under the standards in my legislation, and he would be able to 
move for a new trial based on the testing results, 
notwithstanding the time limits based on such motions.
    Now, the question really is for you, Mr. Marquis, and Mr. 
Edmondson. How should courts consider DNA testing results if 
post-conviction testing produces exculpatory evidence?
    Mr. Edmondson. How should they consider it?
    The Chairman. Yes.
    Mr. Edmondson. I think in the Criner case, for example, the 
trial court there, a very prudent man, conducted a hearing 
where all of the evidence was admitted into evidence and then 
the trial judge made specific findings of fact and conclusions 
of law, and submitted those to the Court of Criminal Appeals, 
which had jurisdiction to review those findings. And I think 
that ought to typically defer heavily to the trial judge who 
makes those findings, and if those findings are favorable to 
the accused, not hesitate to grant a new trial.
    The Chairman. Mr. Marquis?
    Mr. Marquis. I am concerned sometimes because a judge is 
under tremendous pressure not to be reversed, and as we can see 
from this study, they get reversed all the time.
    And I would go back to something that General Spitzer said 
that I think really concerns me, and it deals with actual 
innocence. He is talking about re-testing not simply to 
determine if people didn't do it, but if it would be helpful 
during the sentencing proceeding. And I think we need to focus 
on actual innocence.
    The Chairman. Let me just ask you one additional question 
on that point. Should courts examine post-conviction testing 
results under the established procedures for considering a new 
trial, provided the time limits are waived, or is a new 
procedure needed?
    Mr. Marquis. I think the existing procedures, as long as 
your bill went into effect, would give trial courts the ability 
to make that decision.
    The Chairman. General Edmondson.
    Mr. Edmondson. I think it goes back to the question of 
focus on what it is the DNA evidence purports to prove. If all 
it does is provide additional evidence that might have been 
interesting to a jury, then I would object to causing a new 
trial based upon that.
    If it does, in fact, establish factual innocence, then 
certainly, consistent with the law passed in Oklahoma, 
consistent with our policy prior to that law, it ought to 
result in a new trial, if not an immediate agreed order of 
dismissal without a new trial.
    I certainly can't comment on the Texas case because I am 
not familiar with it. I don't know what the thinking was, but 
in a case where there may have been multiple perpetrators, the 
fact that the result does not match this particular defendant 
is not necessarily exonerating.
    The Chairman. Were there multiple perpetrators in that 
case?
    Mr. Baird. No, sir. The entire theory----
    The Chairman. I gathered that there was not.
    Mr. Baird. I am sorry?
    The Chairman. I took it that there were not multiple 
perpetrators.
    Mr. Baird. The entire State's theory was that Mr. Criner 
was the sole perpetrator, that he deposited the semen found in 
the victim, and that that semen did, in fact, match blood----
    The Chairman. And two DNA testings showed it wasn't his.
    Mr. Baird. Yes, sir.
    The Chairman. That is outrageous to me. I mean, I think 
either of our bills would resolve that, and hopefully we will 
get the best bill out of the committee that we possibly can. 
All of your testimony has been very helpful here today.
    Let me just say, under my bill if post-conviction testing 
produces exculpatory evidence, the defendant is permitted or 
allowed to move for a new trial based on newly discovered 
evidence, notwithstanding any previous statutory time limits on 
such motions.
    Now, my legislation directs courts to consider a new trial 
motion based on post-conviction testing results under 
established judicial precedents. At least that is what we 
believe. By contrast, other proposals seem to create a new 
procedure in which courts must grant a hearing and are 
authorized to do so to give any order that serves the interests 
of justice, any order. Now, that seems exceptionally broad to 
me and I am very concerned about it because what I don't want 
to do--the whole purpose of that 1996 bill, the antiterrorism 
and effective death penalty bill, was to end the charade of 
just multiple, frivolous appeals that literally kept judgment 
from being executed foryears and years and years.
    Now, I can't blame criminal defense lawyers who hate the 
death penalty for utilizing every aspect of the law to try and 
keep their clients from being executed. On the other hand, the 
law is the law, and it was a matter of great concern to us. So 
we passed that bill, and it has worked, I think, pretty well.
    There are critics, of course, but generally they are 
critics who just don't like to have a finality of judgment.
    But be that as it may, I will submit the rest of my 
questions. I apologize for taking two or three minutes more.
    [The questions of Senator Hatch are located in the 
appendix.]
    The Chairman. I will turn to Senator Leahy. I will give you 
whatever time you want. I will turn to the ranking member, who 
really has been instrumental in bringing this to the forefront. 
Of course, all of us are concerned about it on this committee, 
and I think everybody on this committee is aware of and 
concerned about these problems, and I think this committee in 
the end will do a very good job in resolving them. I think your 
testimony in this case has been very, very helpful to us.
    Senator Leahy. Well, Mr. Chairman, a lot of people brought 
it to our attention. I mean, the editorials in the Washington 
Times in favor of this, columnist George Will in favor of this, 
Pat Robertson in favor of this, Bruce Fein in favor of this, as 
well as the New York Times and the Washington Post--these 
people also bring it to our attention.
    Judge Baird, I think Chairman Hatch may have left the wrong 
impression of what his legislation does inadvertently. You 
indicated in your written statement that you supported Governor 
Bush's decision to grant a reprieve to Ricky McGinn so that DNA 
tests could be performed. Now, as I understand it, the new 
tests could not establish the innocence of the crime he was 
convicted for. What they might do is establish whether he was 
eligible because of the facts of the case for the death penalty 
under the Texas law.
    Now, Chairman Hatch's bill would not allow DNA testing for 
that purpose, the purpose of whether he would be eligible for 
the death penalty or not. Is that your understanding?
    Mr. Baird. I understand basically that. I understand that 
there could be perhaps a possible total exoneration, but I 
certainly understand that there could be an exoneration of the 
rape, which was the aggravating element that raised the murder 
to capital murder for which he received the death penalty.
    Senator Leahy. So it could not acquit him of the murder, 
but may acquit him of the aggravating death penalty-imposing 
activity?
    Mr. Baird. That is right, Senator, and without that 
activity, then, of course, he is not death-eligible and would 
not be on death row.
    Senator Leahy. I would note that Chairman Hatch's bill 
would not allow DNA testing for this purpose, but I agree with 
you and I agree with Governor Bush on that.
    The Chairman. My bill would.
    Senator Leahy. Now, Mr. Marquis, I find fascinating some of 
your testimony, being outspent a hundred to one by assigned 
counsel, when you have police officers and technicians and 
those who hold evidence and all that. Then they must be 
spending literally millions of dollars on those cases on 
defense attorneys. As a prosecutor, I often found myself 
outspent, but never at a hundred to one. You may want to talk 
to your legislature about this.
    Mr. Marquis. I do, frequently.
    Senator Leahy. I also looked at your testimony about a 
person flying on an airplane faces a higher chance of death 
than a person on death row. The report yesterday, the most 
comprehensive study of death penalty cases ever done, showed 
that 68 percent of capital convictions suffered from serious 
reversible error. Frankly, if I thought a plane had a two-in-
three chance of crashing, I would not fly on that airplane.
    Now, Ms. Camps, in your written testimony you say that 
the----
    The Chairman. Can he answer that?
    Senator Leahy. Well, I was just making an observation.
    The Chairman. Yes, but I mean I think he ought to be able 
to answer.
    Senator Leahy. Well, no. I am just going by his testimony, 
Mr. Chairman. He says he is outspent a hundred to one, and I 
said I would hope that he might be able to get----
    The Chairman. But I am talking about the 68 percent.
    Senator Leahy. We will go back to that in just a moment, if 
we could.
    Ms. Camps, in your written testimony you say the Leahy-
Smith-Collins bill requires law enforcement to preserve all 
biological evidence throughout a person's entire period of 
incarceration. That is not so. My bill permits the government 
to destroy biological evidence while a person remains 
incarcerated so long as it notifies the person of its intention 
to destroy the evidence and affords the person 90 days to 
request DNA testing.
    Do you think that 90-day notice of the destruction of 
biological evidence is going to impose undue costs on the State 
of California?
    Ms. Camps. Well, with all due respect, Senator Leahy, what 
we anticipate are forum responses from the defense community 
asking us to preserve the evidence, and basically then the bill 
would absolutely mandate that we are going to preserve the 
evidence for the entire period of incarceration until we 
resolve the question about whether that evidence is going to be 
relevant to the defendant.
    Senator Leahy. So the 90 days would impose an undue cost on 
the State of California?
    Ms. Camps. The actual preservation of evidence throughout a 
person's entire period of incarceration would impose a 
significant burden upon us.
    Senator Leahy. Well, let me ask you this. California, 
according to the Columbia University study, spends on 
theircases about $1 million for a killer sentenced to life without 
parole. It is between $4 and $5 million if they get capital punishment.
    Now, of course, California has the absolute right to spend 
$3 or $4 million more to seek the death penalty than to have 
life without parole. But with that extra $3 to $4 million, is 
it your testimony that the very specific and very limited DNA 
testing in my bill, something that may save an innocent person 
from execution, is placing an undue cost burden on the State of 
California?
    Ms. Camps. We have to look at it in terms of our total 
resources for using DNA evidence at trial and our resources for 
analyzing the samples as well, our laboratory resources for 
examining the DNA evidence. And so in that context, in the 
context of what it costs us to actually perhaps re-test all 
available case evidence, we do see that as a significant 
burden. And we are hopeful that a more appropriate standard 
that would limit the availability----
    Senator Leahy. Even though the $3 to $4 million extra that 
it costs to execute somebody over the cost of life without 
parole--even with that extra cost already borne by the State of 
California, the additional costs of DNA testing could be too 
much?
    Ms. Camps. It is not the additional cost of a test in any 
particular case. It is the additional cost of the entire 
infrastructure of a system proposed by the bill for the 
preservation of evidence.
    Senator Leahy. I just thought you were a wealthier State, 
but I appreciate that.
    Judge Baird, this week the Chicago Tribune reported that of 
the last 132 executions in Texas, 43 have been of defendants 
who were represented at trial by counsel who have been 
disbarred, suspended, or disciplined for ethical violations. 
Has Texas changed their record that has led to that kind of a 
disturbing report?
    Mr. Baird. I cannot sit here today with any confidence and 
tell you that Texas has, in fact, changed. That is what I liked 
about your legislation, was the recognition that DNA is not the 
silver bullet in all these cases, that what you have got to 
have in these other cases is adequate, effective, competent 
counsel.
    And the problem in Texas is there is no guideline for this 
competency standard, and therefore it is kind of left to each 
individual trial judge to set that. And I think we would be 
better off if we had some type of Federal standard, as proposed 
in your legislation.
    Senator Leahy. Now, General Spitzer, you have heard Ms. 
Camps talk about how this would impose a burden on the State of 
California. You have testified that New York has had 
legislation similar to the Leahy-Smith-Collins provision on DNA 
testing for a number of years. Has the cost of providing access 
to DNA testing been prohibitive?
    Mr. Spitzer. No, I certainly do not think so, and I am not 
sure that I accept the purely utilitarian calculus that some of 
my colleagues are suggesting either. I think your point is well 
taken that what we are aspiring to here is a degree of 
certainty and assurance of correctness in our criminal justice 
system that defies the calculus of is it worth $5 or $100. I 
think that the incremental costs relating to storage of samples 
simply should not be the determinative factor.
    And with respect to your notice provision, my understanding 
and expectation would be that if, in fact, a notice were sent 
out that the State intended to destroy certain biological 
samples, perhaps we would get a forum response back from the 
defendants requesting that it be restored. But then we could 
shift the burden back to make a prime facie showing to 
establish whatever needed to be shown to justify the test.
    So I think that there are creative ways and reasonably 
simple ways to overcome that problem that confront both the 
cost of storage, which would permit the State no longer to 
become a storage bin for all old evidence, but also to aspire--
not to necessarily reach certainty, but to aspire to the 
certainty that your statute reaches for.
    Senator Leahy. Well, under New York's post-conviction DNA 
statute--and obviously I have studied that and Illinois a great 
deal as we were trying to put this together because you have a 
track record--as I understand it, the defendant can enforce his 
right to get DNA testing through the courts, and I followed 
that in my legislation. Now, under Chairman Hatch's proposal, 
there is no enforcement method.
    I wonder about the New York approach. Has it resulted in 
undue litigation?
    Mr. Spitzer. No, it has not, and I think it has worked out 
very well. Judges exercise their discretion, as they always do 
appropriately, and I think the track record is one that 
suggests that, in fact, we could replicate that standard 
nationally without any undue burden to our judicial system.
    Senator Leahy. General Edmondson, we are going to be 
hearing today from Dennis Fritz. He spent 12 years in prison in 
Oklahoma for a crime that later it was determined he did not 
commit, and that was thanks to DNA testing. Now, the State 
opposed having that DNA testing for years. All this time he was 
locked up, he was asking for DNA testing and the State said no. 
He and his co-defendant, Ron Williamson, were finally released 
from prison last year. In fact, I think Williamson had come 
within less than a week of being executed. Fortunately, he 
wasn't.
    Now, would you agree that legislation that helps people 
like Fritz and Williamson to get DNA testing that proves their 
innocence may well be responding to a real problem?
    Mr. Edmonson. I would certainly agree that the legislation 
that Oklahoma passed this year would have been very useful to 
Mr. Fritz at the time of his appeal. The co-defendant, Mr. 
Williamson, who was on death row--and by the way, this image of 
his being within days of being executed--the common practice 
prior to the Effective Death Penalty Act was when one stage of 
the appeal was over and nothing happened on the defense side, 
the State would ask for an execution date to get the appeal off 
high center.
    By asking for an execution date, we would then give a 
deadline to the defense to file their next round of appeals. In 
Mr. Williamson's case, his post-conviction relief had been 
denied by the Supreme Court and no action had been taken to 
initiate Federal habeas. Because of that, the State filed an 
application for an execution date, which was granted by the 
court.
    Everyone knew that the defense was going to file a petition 
for writ of habeas corpus and the execution date would be 
stayed. If Mr. Williamson suffered distress over that, it was 
because his attorney didn't share that fact with him.
    Senator Leahy. Well, General, just so we don't put toofine 
a point on this, if you are Dennis Fritz and you are Ron Williamson and 
you are on death row, even though you may have other appeals coming up, 
if you know you are innocent and you know that there is DNA testing 
that you are being denied out there that might prove your innocence, 
isn't it reasonable to assume there might be a tad bit of stress on the 
part of the person who is there just figuring that his life is in the 
hands of lawyers who may or may not do this right or a system which may 
or may not allow him to have his evidence and he may well end up being 
executed?
    Mr. Edmondson. I know, Senator, that I would start 
suffering stress the day I walked into the prison and it would 
continue.
    Senator Leahy. I would think so.
    Mr. Edmondson. Williamson was reversed and sent back for a 
new trial on incompetence of counsel. In preparation for new 
trial, the State asked for DNA testing. As a result of the DNA 
testing, the State and defense jointly moved to dismiss the 
charges against Williamson and Fritz. Again, we do not want to 
be in the business of incarcerating, much less executing 
innocent people.
    Senator Leahy. I have discussed this with your governor. In 
fact, he and I were on one of the Sunday talk shows recently 
about this and expressed somewhat similar views.
    I will submit my other questions for the record, Mr. 
Chairman.
    [The questions of Senator Leahy are located in the 
appendix.]
    The Chairman. Thank you, Senator Leahy.
    We will turn to Senator Grassley. If we could limit 
ourselves to five minutes, I would appreciate it, but I 
certainly want to have as many questions as we can ask. But we 
also can submit questions, and I hope that all of you will 
immediately respond to help the committee to understand this 
better so that we don't foul it up.
    Senator Grassley. Mr. Marquis, I would like to start out 
with asking you to respond to a study that Senator Leahy 
brought up, the Professor Liebman study. Is this really a new 
study? Does it show that these prisoners were actually 
innocent?
    Mr. Marquis. No and no, Senator Grassley. It is a recycled 
study. Professor Liebman is a prominent criminal defense 
lawyer, as well as being a professor at Columbia. His sample 
for some reason goes from 1973 to 1995. The death penalty 
wasn't reinstated until 1976. And he seems to have a very odd 
form of mathematics because he apparently counts--if the same 
case is reversed two or three times, that counts as more 
reversals.
    It has nothing to do with whether or not the people are 
factually guilty or actually innocent. It has to do with the 
idea that if we use, as Justice Powell says, super due process 
in capital cases, which I believe we must, we are going to have 
a high reversal rate. I think the acknowledged reversal rate in 
the country is about 33 percent.
    And I note with amusement that Professor Liebman's study--
by their standards, the very best States are Texas and 
Virginia, which have the most executions. And I suspect that 
some of your witnesses who oppose the death penalty are not 
going to hold up Texas and Virginia as paragons of death 
penalty systems.
    Senator Grassley. Thank you very much. Prior to asking a 
couple of questions, I want to make this point. To get ready 
for this hearing I asked some questions in my office of some 
people from the FBI about the ability to do the sort of 
requirements that these bills might require. And there are 
evidently a few over a hundred crime labs that do DNA testing 
and they are pretty busy with what they have right now for 
cases pending and requests for tests. If we are going to have 
backlog of cases of people who are on death row having DNA 
testing, we are going to have to have considerable resources 
put into it so we don't get further backlogged.
    I don't make this point to say that we should not consider 
legislation like this to know that only the guilty are put to 
death, but with the idea that we need to make sure that we put 
the resources into it that are there or understand that there 
is going to be further backlog someplace else along the road. 
So I wanted to make that point, and if there is any 
disagreement, I would ask anybody to check me on it.
    I want to start with you, Ms. Camps. You stated that DNA 
testing programs should not undermine the criminal justice 
system from the financial point of view. Could you elaborate on 
the potential cost to the criminal justice system if Congress 
forces States to establish post-conviction DNA testing?
    Ms. Camps. Well, it is difficult to estimate exactly what 
the cost of a bill will be of this magnitude and we are worried 
about the impact of it. We have several matters that figure 
into the cost of the bill, including the cost of taking 
reference samples from the defendant, the cost of the 
investigator time to look at and review the evidence, the cost 
of the district attorney time to review the case, the cost of 
the trial and appellate courts to review the decision.
    There is an enormous new burden on the criminal justice 
system as a whole for a program that would have a broad mandate 
to sort of retest all available evidence. We look at the Leahy 
bill more as a test first, ask questions later approach, and we 
want the approach that asks the questions first and only tests 
in appropriate cases in order to limitthe expense.
    Senator Grassley. Are you suggesting that requirements 
contained in this legislation without the resources being put 
to it are effectively a moratorium, then, on the use of the 
death penalty?
    Ms. Camps. Well, we think that to the extent that the bill 
permits multiple testing and it certainly wouldn't prohibit it, 
it could certainly be used as a stalling tactic for defendants 
to ask for, first, an STR test, then a mitochondrial DNA test, 
then a polymarker test. And so that is a factor in considering 
what would be appropriate legislation and what would be the 
effect of permitting multiple testing requests.
    Senator Grassley. Now, I want to ask Mr. Baird to respond 
to Ms. Camps' suggestion that she made in her testimony that 
the Leahy bill doesn't adequately distinguish between requests 
for DNA testing based on arguments with merit and arguments 
without merit.
    Mr. Baird. Senator, I don't follow that line of reasoning 
after reading Senator Leahy's bill. I understand that the 
defendant has got to show that testing would create a 
reasonable probability that he was erroneously convicted. That 
seems to me a fairly high threshold and standard before which 
he would even be entitled to this testing.
    Senator Grassley. Then maybe I should ask Ms. Camps, then, 
to respond to your response.
    Ms. Camps. I would like to respond to that because we read 
Senator Leahy's bill very differently that it has a contrast 
with both the Illinois and the New York language that is very 
significant. I mean, language that says may produce non-
cumulative exculpatory evidence relevant to a claim is very 
different from a statute that requires identity be an issue and 
an actual assertion of innocence, and that the evidence would 
be materially relevant to the defendant's request. The key 
words that are missing there are ``material'' and 
``innocence.''
    So to the extent that the Illinois statute is supposed to 
be a paradigm for the Leahy bill, we don't see it, nor do we 
see it from the New York statute. That is why we also believe 
that the New York experience would not be directly relevant. 
The New York statute has a cut-off that applies to cases before 
1996, and the reasonable probability that a verdict would have 
been more favorable to the defendant.
    Now, that same reasonable probability language does not 
appear in the Leahy bill, and that is a term of art to us in 
the related law of the materiality of undisclosed evidence and 
in effective assistance of counsel cases. It means probability 
sufficient to undermine confidence in the outcome of the 
verdict. So, to us, that is a very different standard than 
``may produce relevant evidence'' because the relevant evidence 
may not even be to a disputed fact.
    Senator Grassley. My time is up, and I will submit the rest 
of my questions for response in writing.
    [The questions of Senator Grassley were not available at 
press time.]
    The Chairman. Thank you, Senator Grassley.
    We will turn to Senator Biden.

STATEMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR FROM THE 
                       STATE OF DELAWARE

    Senator Biden. Thank you, Mr. Chairman, and thank you for 
holding this hearing. You and I have been here a long time. I 
have been here 28 years, and I hope we get it right this time 
because this pendulum keeps swinging back and forth. You have 
got those who want to hang them high and those who suggest no 
one should be hung, figuratively speaking, and we have gone 
through this exercise.
    I predict to you that if we don't take some corrective 
action, the American public is going to shift its opinion 
markedly, as it is beginning to do, down from 90 percent 
favoring the death penalty to 60 percent. When I first got 
here, only 40-some percent of the American people supported the 
death penalty. By the time it became clear that the average 
person committing a capital offense in a State served, on 
average, only seven years in prison, there was a hue and cry 
the other way. So this pendulum swings back and forth in a way 
that is not healthy not only for the criminal defendant, but 
for the justice system.
    I should say at the front end of this thing the first 
Federal death penalty after it was declared unconstitutional 
that was declared constitutional was a bill written by me in 
1988, in the Biden crime bill, because the Crime Control Act of 
1994 had the death penalty at the Federal level.
    I support the death penalty. Let me put it this way: I 
don't oppose the death penalty on moral grounds, but I have 
been fastidious in arguing along the lines Senator Smith did 
that if you are going to have a death penalty, you had better 
go out of your way to make sure you don't execute an innocent 
person.
    I want to remind everybody of the chronology here, at least 
at the Federal level. The 1988 Act passed. In 1991, I asked for 
the study that is now finally the one we are now talking about. 
I am the guy that asked for that study when I was chairman of 
this committee that has just been released. Then my friends, 
the chairman and others, became very focused on habeas corpus, 
which I thought should have stayed the way it was and was not 
being abused. And to the extent it was abused, it was a small 
price for society to pay to make sure an innocent person didn't 
get wrongfully convicted and put to death. Then we went through 
a big fight over that.
    I introduced, and I am going to ask to submit for the 
record the Habeas Reform Act of--mine was defeated--the short 
title was ``The Act may be cited as the Habeas Corpus Reform 
Act of 1993.'' I would like to ask unanimous consent that 
section (c)(8), ``Provision of Counsel,'' be reprinted in the 
record at this point, if I may, Mr. Chairman.
    The Chairman. Without objection.
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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\
---------------------------------------------------------------------------
    \1\ There are dozens of examples of law enforcement agencies 
destroying critical biological evidence even where there is evidence 
that some accused have been wrongly convicted. In 1997, Harris County, 
Texas court officials destroyed DNA samples in 50 cases within days 
after Kevin Byrd, who had been convicted in Harris County, was released 
from prison after DNA tests showed that he was not guilty of the crime 
for which he had been convicted.
---------------------------------------------------------------------------
    The Innocence Protection Act provides for important new procedures 
and requirements that would address many of the problems currently 
preventing the identification of wrongly convicted prisoners through 
postconviction DNA testing. Requiring the preservation of biological 
evidence, affording wrongly convicted prisoners a right to DNA testing 
regardless of time restrictions under existing postconviction 
procedures, and improving defense services to the poor who have been 
falsely accused and wrongly convicted, as provided in S. 2690, is an 
extremely important step forward.
A. While improved procedures for obtaining postconviction DNA testing 
        are crucial, DNA will uncover only a small percentage of the 
        cases where innocent people have been wrongly convicted
    The Innocence Protection Act will do much to restore confidence in 
many criminal cases where biological evidence can resolve lingering 
questions about guilt or innocence. Our nation's status as the world's 
leading democracy and our activism on human rights in the international 
context requires us to take all steps possible to protect against 
wrongful convictions and execution of the innocent. Improved procedures 
for postconviction DNA testing will tremendously aid the goal of a more 
reliable and fairer administration of criminal justice. However, it is 
worth keeping in mind that DNA testing will touch a relatively small 
subset of cases where innocent people have been wrongly convicted. 
Improved access to DNA testing for prisoners will be useful only in 
those case where (1) biological evidence can determinatively establish 
guilt or innocence, most notably rape, rape-murder and sexual assault 
cases, (2) the accused is still in prison or on death row and, most 
likely, had his case tried before 1994, and (3) the biological evidence 
has been preserved and is still available for testing. This is a 
relatively fixed and finite universe of cases.
    The Innocence Protection Act can over a relatively short period of 
time accomplish much of what it intends by affording wrongly convicted 
prisoners a meaningful opportunity to obtain relief through DNA 
testing. It is hoped that after a few years, DNA testing will become 
less critical in the postconviction review of criminal cases where 
legitimate claims of innocence can still be made. This is certainly 
true, assuming improved access to counsel, in the death penalty 
context, where there is a relatively narrow category of cases that can 
benefit from postconviction DNA testing. Only 8 of the 87 innocent 
people who have been released from death row since 1973 were proved 
innocent based on DNA evidence. The incidence of rape-murder or sexual 
assault-murder as the basis for a capital prosecution and a sentence of 
death is comparatively small in the universe of cases in which the 
death penalty has been imposed.
    In my state of Alabama, it is estimated that only 23 of the 187 
people who are currently on death row have been convicted of murders 
aggravated by rape or sexual assault where biological evidence may be 
determinative of guild. In 10 of the 23 cases where death was imposed, 
the trials took place after 1994 when DNA evidence was presumably 
available and utilized. While DNA evidence may sometimes prove useful 
in cases where the condemned has not been convicted or charged with an 
accompanying rape or sexual assault, a reasonable presumption exists 
that postconviction DNA testing will be meaningful in only about 6% of 
death penalty cases in Alabama. The availability of physical evidence 
and the credibility of an innocence claim based on other evidence will 
further reduce the viability and likelihood of postconviction DNA 
testing in these cases.
    While the identification of a single innocent person on death row 
would justify this important legislation, no one should believe that 
this Act will trigger an enormous number of applications for 
postconviction DNA testing in the capital punishment context. A random 
review of about a third of the death penalty cases nationwide in which 
data was readily available reveals that in only 116 of 1403 cases was a 
death-sentenced prisoner convicted of a crime accompanied by rape of 
sexual assault of the victim prior to 1994. While there may be 
significant differences between jurisdictions in the number of capital 
convictions where biological evidence can be tested, it is worth noting 
that it appears that less than ten percent of those sentenced to death 
have been convicted of crimes accompanied by rape and sexual assault 
prior to 1994. Again, given the other limiting factors that restrict 
the viability of DNA testing in postconviction cases, we can make 
important but limited progress in the identification of innocent people 
who have been wrongly convicted through expanded DNA testing. There 
will still be much work to do to avoid executing the innocent and to 
identify the wrongly convicted after postconviction DNA testing 
procedures are improved.
B. The Importance of Providing Counsel
    In most instances postconviction DNA testing has required the 
assistance of counsel to accomplish the exoneration of an innocent 
person who has been wrongly convicted of a crime. The provisions in S. 
2690 for improving defense services to prisoners who have been wrongly 
convicted are thus crucial to the effectiveness of any effort to 
protect innocent people from further incarceration or execution.
    In many DNA exonerations, the accused had been coerced into making 
a confession or other false or unreliable inculpatory evidence was 
presented. On April 15, 1999, Ronald Williamson was released from death 
row in Oklahoma after DNA evidence cleared him of the crime for which 
he had been convicted. Mr. Williamson was sentenced to death in 1988 
and had come within five days of execution in 1994. His trial lawyer 
had failed to investigate his extensive record of mental illness or the 
fact that another man had confessed to the crime. Without 
postconviction counsel and assistance, Mr. Williamson's innocence could 
not have been established even with DNA testing. The assistance of 
counsel for the convicted prisoner is essential whenever postconviction 
DNA testing is employed to correct a wrongful conviction of an innocent 
person.
    In the last 30 years the number of people incarcerated in the 
United States has increased dramatically. In 1972, there were 200,000 
people in jails and prisons. Today there are over 2 million people 
incarcerated in federal, state and local jails and prisons. The 
dramatic increase in the number of people imprisoned has presented 
enormous challenges to the administration of criminal justice. One 
frequently ignored problem associated with the enormous increase in the 
number of people prosecuted and imprisoned is the ability of state 
governments to provide adequate legal representation to the accused or 
the imprisoned and to protect against wrongful conviction of the 
innocent.
    In the death penalty arena this problem is especially acute. There 
are now close to 3,700 people on death row in the United States. 
Hundreds of these condemned prisoners have no legal representation. The 
ability of indigent death row prisoners to find competent legal 
representation throughout the litigation process has created tremendous 
uncertainty and raised serious concerns about the fairness and 
reliability of capital sentencing in many jurisdictions. The problems 
involved in providing adequate counsel for capital defendants and death 
row prisoners are the primary reasons why the American Bar Association 
has recommended that a nationwide moratorium on capital punishment be 
implemented.
    In Alabama, our death row population has doubled in the last ten 
years. There are dozens of death row prisoners who are without legal 
representation and who cannot present compelling claims that their 
convictions and death sentences are legally and factually invalid. 
While state law permits an Alabama circuit judge to appoint a lawyer 
for postconviction proceedings, the law does not authorize any 
appointment of counsel until after a petition has been filed. Petitions 
cannot typically be filed until the case has been investigated and a 
lawyer has expended hundreds of hours of work. Even with appointment, 
state law in Alabama limits compensation for appointed counsel to $1000 
per case.\2\ This rate is so extraordinarily low that no lawyer can 
reasonably take on one of these difficult cases unless he or she is 
willing to represent the client for what amounts to pro bono service. 
Finding attorneys to handle these cases pro bono requires active 
recruitment, support services for recruited counsel, and basic, 
practical assistance to those who agree to take on a case.\3\ The 
general crisis surrounding adequate legal services for death row 
prisoners has been exacerbated by the Anti-Terrorism and Effective 
Death Penalty Act (AEDPA). The AEDPA has now created a one-year 
deadline for people who have been wrongly convicted to present their 
claims in federal habeas proceedings. The initiation of this one-year 
time line is not tied to the requirement that indigent prisoners, even 
death row prisoners, have counsel available to them. Many death row 
prisoners are therefore now failing to have claims of innocence 
presented solely because they cannot secure legal representation. The 
elimination of federal funds for capital representation resource 
centers by Congress in 1995 has further added to the difficulty of 
making sure wrongful convictions in death penalty cases can be 
adequately brought to state and federal courts. From the late 1980's 
until 1995, federal funding was available through the U.S. 
Administrative Office of Courts, Defender Services Division to support 
resource centers which recruited and trained lawyers to handle capital 
cases in postconviction proceedings. Capital resource centers also 
provided direct services to dozens of death row prisoners and greatly 
reduced the number of prisoners for whom no lawyer had been found. 
After Congress eliminated federal funding of resource centers around 
the country in 1995, many centers, including the center in Alabama, 
were forced to close.
---------------------------------------------------------------------------
    \2\ The $1000 rate was authorized by the state legislature in 1999; 
the rate until 1999 was $600 per case. Section 15-12-21, Code of 
Alabama (1975).
    \3\ Recruitment efforts by volunteers and the American Bar 
Association to meet the demand for pro bono services to death row 
prisoners have been unable to keep pace with the growing number of 
death-sentenced prisoners in the United States. Funded counsel for 
death row prisoners has thus become a critical issue.
---------------------------------------------------------------------------
    The provisions in S. 2690 that provide for better-funded legal 
representation to death row prisoners are absolutely critical if any 
meaningful effort is going to be made to minimize the risk of wrongful 
executions in this country. The problem of poor lawyering at trial 
contributes directly to the risk of convicting the innocent. In capital 
cases, mounting evidence of how poorly many death-sentenced prisoners 
were represented at trial continues to surface. Hundreds of death-
sentenced prisoners were represented at trial by lawyers who were 
subsequently disbarred or suspended from legal practice for 
incompetent, unethical or criminal conduct. In Illinois, at least 33 
death sentenced prisoners were represented by lawyers who were later 
disbarred or suspended from practice.\4\ Much has been written about 
capital trials in the U.S. where defense attorneys were asleep, 
intoxicated, publicly stating a belief that their client should be 
executed, directing racial slurs at the client, or otherwise providing 
ineffective assistance of counsel.\5\
---------------------------------------------------------------------------
    \4\ Amnesty International, ``U.S. Death Penalty: Failing the 
Future,'' (April 2000 Report, pg. 66).
    \5\ See e.g., Stephen Bright, Counsel for the Poor: The Death 
Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale Law 
Journal 7, May 1994.
---------------------------------------------------------------------------
    In 1999 a federal court agreed that a Texas death row inmate in 
effect had no lawyer at his 1984 trial. Calvin Burdine, whose lawyer 
had slept during most of his trial, was ordered to receive a new trial 
after a federal judge concluded that Mr. Burdine's constitutional right 
to counsel had been denied by his lawyer's sleeping. However, without 
legal representation in postconviction proceedings, Mr. Burdine's 
claims could not have been presented. There is no constitutional right 
to counsel for postconviction review, and many people on death row 
cannot effectively file the appeals that have frequently proved vital 
in demonstrating innocence or otherwise establishing that a conviction 
or sentence is illegal.\6\
---------------------------------------------------------------------------
    \6\ Despite the elaborate review process surrounding capital cases 
in the United States, there have been eighty-five documented cases to 
date of innocent people who have been wrongly sentenced to death for 
crimes they did not commit. Some of these innocent men and women came 
within hours of an execution before being spared. For every seven 
people executed in the United States, an innocent death row prisoner 
has been identified. This shockingly high rate of error has caused a 
few states to consider a moratorium on capital punishment, but has left 
most proponents of the death penalty undeterred. Recent advances in DNA 
testing have played a role in identifying some of the innocent on death 
rows across the United States. However, police and prosecutorial 
misconduct, mistaken identifications, inadequate defense lawyering and 
other problems have accounted for most of these unjust death sentences.
---------------------------------------------------------------------------
C. Other factors leading to the wrongful conviction of innocent people
    Too many capital cases have been tried by defense attorneys who 
called no witnesses, made no argument or otherwise failed to act as an 
invested advocate. The risk of wrongful conviction in these cases is 
unquestionably high. Convicting the innocent is also a function of 
other factors, including incompetent or malicious suppression of 
exculpatory evidence by police and prosecutors, a reliance on jailhouse 
informants, and other misconduct or overreaching in capital 
proceedings.
    Prosecutorial misconduct or the suppression of exculpatory material 
has been especially prominent in the cases of innocent people who have 
been released from death row. Walter McMillian was released from 
Alabama's death row after it was established that exculpatory 
statements from the state's primary witness against Mr. McMillian had 
been concealed. The witness had told investigating officers repeatedly 
that Mr. McMillian had no involvement in the murder for which he was 
subsequently convicted. Statements by this witness to another state 
investigator that he was ``framing and innocent man for murder'' were 
similarly never turned over to defense counsel. The desire to achieve a 
capital murder conviction at any cost frequently results in proceedings 
where a reliable determination of guilt or innocence is not likely. Mr. 
McMillian was actually placed on Alabama's death row for 15 months 
while awaiting his trial.
    In some cases, the innocent have been sent to death row due to 
flaws in blood or semen testing but to equally unreliable evidence from 
jailhouse informants. Jailhouse informants or ``snitches'' are convicts 
who seek favorable treatment in their own cases in exchange for 
providing prosecutors with incriminating evidence in another case, 
often one in which competent evidence is lacking. These snitches 
frequently provide the only ``confession'' from a man who has otherwise 
insisted on his innocence to law enforcement and the public. One of the 
men released in recent years from Illinois' death row, Steven Manning, 
was convicted in 1993 on the word of a jailhouse informant who 
testified thatMr. Manning had twice confessed to the crime when the two 
shared a jail cell. For his testimony convicting Mr. Manning, the 
informant had eight years shaved off his own sentence for theft and 
other offenses. Mr. Manning was exonerated and charges were dropped 
this year after FBI tapes surfaced showing that in none of his 
conversations with this convicted felon did Mr. Manning admit any guilt 
of the crime. There are few cases where such tape recordings will be 
available to prove that the snitch has fabricated his testimony in a 
capital prosecution for his own benefit.
    In some cases informants have testified against innocent capital 
defendants in an effort to deflect guilt from themselves. The United 
States Supreme Court granted relief to Curtis Kyles of Louisiana in 
1995 because the prosecution had suppressed evidence about its paid 
informant who may himself have been the actual murderer. While the 
informant gave detailed testimony implicating Mr. Kyles, there was 
undisclosed evidence indicating that it was the snitch himself who had 
possession of the victim's belongings and who had been described by the 
eyewitness to the crime. The Supreme Court criticized the ``uncritical 
readiness'' of the prosecution to accept this informant's doubtful 
story. Yet it was on this testimony that Mr. Kyles was convicted and 
sentenced to death. Moreover, his relief did not come until years later 
when his pro bono lawyers pressed his case on federal habeas corpus--a 
result now jeopardized by the strict timelines and standards of the 
Anti-Terrorism and Effective Death Penalty Act that currently governs 
habeas corpus cases.
    There have been and continue to be cases in which innocent people 
find themselves behind bars and cannot depend on scientific testing for 
exoneration. In 1987 charges were dropped against Oklahoma death row 
inmate Clifford Bowen when the state had failed to disclose information 
pointing decidedly to another suspect. There had been no physical 
evidence tying Bowen to the crime, and he was on death row despite the 
existence of 12 alibi witnesses who placed him 300 miles away from the 
scene. In a better-known case, Anthony Porter was released last year 
from Illinois' death row after volunteers found, among other things, 
that someone else had committed the crime, and that a witness had been 
pressured by the police to incriminate Mr. Porter. Indeed, a study 
indicated that, prior to Governor Ryan's establishing a moratorium on 
executions, Illinois capital cases were riddled with a myriad of 
errors, including that (1) in at least 46 death penalty cases, the 
prosecution's evidence included testimony from prison informants, a 
notoriously unreliable source of evidence; (2) in at least 20 cases, 
the prosecution's evidence rested partly on the visual comparison of 
hairs by laboratory technicians, a forensic method known to be 
unreliable; and (3) in at least 35 cases black defendants had been 
tried by all-white juries. Steps must be taken to ensure that such 
methods do not continue to be utilized to trap the innocent, and that 
those wrongly convicted will have both the time and the legal resources 
necessary to establishing the truth.
                               conclusion
    The Innocence Protection Act is desperately needed. Postconviction 
DNA testing and improving legal representation for death row prisoners 
is absolutely critical if we are to prevent innocent people from being 
executed and if we are committed to providing equal justice for all. I 
strongly urge this Committee to recommend passage of this important 
legislation.

    The Chairman. Mr. Fritz, we are happy to hear your 
testimony at this time.

                   STATEMENT OF DENNIS FRITZ

    Mr. Fritz. Good morning, Chairman Hatch, Senator Leahy, and 
other members of the committee. My name is Dennis Fritz and I 
currently reside in Kansas City, MO. I want to say that it is 
such a great honor and pleasure to be before this committee 
today representing all wrongfully convicted people around the 
world, even, for unjust crimes that they are currently serving.
    Actually, before I get into my presentation, I would just 
like to say that unless that shoe is on the other foot, we 
don't realize actually what we are going through. I mean, we 
can look at someone else and their problems and their dilemmas 
and we can make a judgment and we can look at this and go forth 
with our decisionmaking, which is good.
    But I went through such a devastating time. As a matter of 
fact, in May 1987 I was arrested for a rape and murder that I 
neither committed nor had any knowledge of whatsoever. I was 
arrested 5 years after the crime had occurred, and from that 
day forward everything just went straight downhill in the 
judicial process.
    I spent the next 12 years serving a life sentence until I 
was finally able to prove my innocence, for which I give many, 
many thanks to Barry Scheck and Peter Neufeld and the Innocence 
Project for their many, many efforts in securing not only my 
release, but other wrongfully convicted people. My co-
defendant, Ron Williamson, as was previously mentioned, was 
also wrongfully convicted of the crime and was sentenced to 
death. He had come within 5 days of being executed.
    We were both freed on the same day in April 1999, after it 
was proven through DNA evidence that neither of us could have 
committed the crime. The prosecutor agreed with defense counsel 
to dismiss the charges. As a matter of fact, the DNA evidence 
also established who the real killer was. That was a blessing.
    At the time of the murder, I was a science teacher and a 
football coach at a junior high school in Ada, OK. My daughter, 
Elizabeth, was 11 years old. I loved my family, I loved my job. 
Just the fact that I was a murder suspect got me fired from my 
teaching position. Five years later, I was then arrested. The 
detectives then told me they knew I had not committed the 
crime, but they believed I knew who did it.
    From the very beginning, I always told them that I was 
innocent, but it made no difference with these people. They 
were bent on conviction. They needed a conviction in this case. 
It had been 5 years. It was an election year, and anything that 
I said didn't make any difference.
    My trial began on April 8, 1988. To say the very least, it 
was a total living nightmare. The prosecutor's case was almost 
entirely built on the lies of jailhouse snitches who got their 
sentences reduced for testifying against me. Even the real 
killer himself was used as a prosecution witness against both 
myself and the co-defendant. At the time of the trial, no one 
had even bothered to test his DNA evidence, even though he had 
been the last one seen with the victim shortly before her death 
arguing and shoving her against a car. But no one bothered to 
test his DNA evidence.
    At that time, in 1988, DNA evidence was actually available 
for testing in my case. The only reason that it was not is 
because the proper laws were not enacted for that DNA to have 
been tested. Otherwise, if they had been, I would not have had 
to endure those 12 years of suffering and misery and pain that 
not only I went through, but my blessed family members did. 
That is where the real pain goes.
    I mean, I was a sacrifice, maybe, to see the perpetuation 
of the advancement of your ideals, your decisions today. I will 
accept that, but that hurt my family. That disturbs me very 
much. I am mad, but on the other hand, I am happy that this 
committee has convened today and that these steps are being 
made for enactment of laws that definitely need to be enacted.
    After I was convicted, I appealed my case throughout both 
the State and Federal Oklahoma courts. My appeals were denied 
at every stage of the judicial proceedings. At the time of my 
conviction in 1988, DNA testing actually, like I have 
mentioned, was just accepted by the scientific community.
    For years while I was in prison, I repeatedly petitioned 
the courts to allow me to get the DNA testing done on the crime 
scene samples. Every time, I was flat out denied. By the time I 
got in touch with Barry Scheck and Peter Neufeld, I had already 
lost seven court decisions and had just about lost actually all 
hope of ever being a free man again.
    Twelve long and tormenting years passed after that time and 
I did not see my daughter, Elizabeth. I could not bear for her 
to see actually what was going on in the prison. The visiting 
room was so disgusting, I wouldn't allow her to come. So I 
restricted her visitations and I spoke with her over the 
telephone. I knew that she loved me, I knew that she believed 
that I was innocent. And my mother as well supported me 
throughout this terrible, hellish nightmare. I was subjected to 
indignities that no person should have ever had to suffer or 
suffer in the future, let alone being a person who is actually 
innocent of a crime.
    The refusal of the State of Oklahoma to compare my DNA with 
the crime scene evidence was only one of the reasons why I lost 
all those years of my life. The other reason was my trial 
attorney's total ineffectiveness. First, he had no real 
incentive to defend me because he had only received $500 for 
representing me in a capital murder case. Besides that, he had 
never handled a capital murder case in his life. In fact, he 
had never handled any type of criminal case whatsoever due to 
the fact that he was a civil liability attorney.
    I wholeheartedly believe that if I had had adequate 
representation from a qualified lawyer, I would have not been 
convicted. I would have never been forced to endure these 
cruelties which Senator Leahy's bill seeks to prevent. It is 
more than past time to put an end to these unmerciful 
travesties of injustice that occur when the truth is hidden or 
disregarded.
    I appeal to you, the members of this committee, to enact 
the laws to fully assure that no human being will ever have to 
suffer as I did for something of which they are totally 
innocent.
    Thank you.
    The Chairman. Thank you, Mr. Fritz. Certainly, your 
testimony is very moving to all of us here today, as it should 
be, and a good message for all of us to take under 
consideration on this committee. So you have done the country a 
great service in coming here today.
    Mr. Fritz. It was all my pleasure.
    The Chairman. I have been very moved by your humble 
testimony and it means a lot to me, and I sure don't want to 
see anybody else go through that to the extent that we can 
prevent it.
    Mr. Wooley, we are happy to have you here. You have a very 
excellent reputation and we look forward to taking your 
testimony.

                   STATEMENT OF JAMES WOOLEY

    Mr. Wooley. Thank you, Chairman Hatch, Senator Leahy. It 
really is truly an honor and a privilege to be here, and I 
commend the committee for taking up this topic.
    Let me introduce myself. My name is Jim Wooley. I am a 
partner at a law firm called Baker and Hostetler, but up until 
January of this year I had spent 10 years as a Federal 
prosecutor in the Northern District of Ohio as an assistant 
U.S. Attorney. Prior to that, I was an assistant District 
Attorney in the Manhattan D.A.'s Office in New York. I am also 
currently an adjunct professor in criminal procedure at Case 
Western Reserve University Law School.
    In 1990 and 1991, I was the prosecutor in a case called 
United States v. Yee, a homicide case which is often referred 
to as the landmark forensic DNA case in this country. The case 
involved the first DNA test ever performed by the FBI lab. The 
DNA evidence was admitted as evidence after an extensive 
pretrial challenge which was very ably led by Mr. Scheck and 
others, who by the way was appointed counsel, and extremely 
competent appointed counsel, in that matter.
    Because of my role in the Yee case, I became and remain 
very active in the forensic DNA community. I was a member of 
the Ohio DNA Advisory Council, and I am currently serving on 
the National Institute of Justice's Commission on the Future of 
DNA Evidence, along with Mr. Clarke, Mr. Scheck, and others.
    I have been asked to testify here today regarding proposed 
Federal legislation which, as I understand it, would provide 
for post-conviction DNA testing on behalf of Federal inmates 
who were convicted at a time when DNA testing may not have been 
available. I have seen different versions of proposed and 
existing legislation on this topic, and it is my belief that a 
statute addressing this topic needs to be drafted in a manner 
that allows post-conviction access to DNA testing to innocent 
Federal inmates without over-burdening the system with post-
conviction proceedings on meritless requests.
    Of the existing and proposed statutes I have seen, I 
believe the statute proposed by Senator Hatch does the best job 
of striking this balance, for the following reasons. I will say 
that I believe they all attempt to strike the balance. I prefer 
the Hatch statute and its effort to strike the balance for the 
following reasons.
    Most importantly, the Hatch bill does provide access to DNA 
testing for the innocent Federal inmate who was convicted at a 
time when DNA testing may not have been available to prove his 
or her innocence. I have reviewed other statutes that provide 
for post-conviction DNA testing on a lesser standard than the 
Hatch bill, but I have not yet seen one that would give a truly 
innocent Federal inmate relief in a case where the Hatch bill 
would not.
    The Hatch bill allows an inmate to make a motion when 
evidence, ``was not subject to DNA testing because the 
technology for such testing was not in existence at the time of 
trial.'' Other proposed statutes draw no distinction between 
inmates who have pleaded guilty and inmates who may have been 
convicted after trial. There is equal access to both classes of 
inmates. I believe it is important to draw the trial/guilty 
plea distinction here in the context of a proposed Federal 
statute.
    I may be the only former or current Federal prosecutor who 
has testified on either of the two panels, and I am very 
familiar with Federal criminal Rule 11 which, as I am sure you 
all know, mandates a very thorough inquiry by a Federal judge 
before any guilty plea can be accepted. As part of that 
inquiry, under rule 11(f), the court must satisfy itself that 
there is a factual basis for the plea.
    In my 10 years as a Federal prosecutor, the factual basis 
was invariably established by the defendant admitting in open 
court that he or she engaged in the conduct that he or she was 
accused of committing. Often, this admission is under oath and 
includes the defendant describing in his or her own words 
exactly what they did.
    I believe that a Federal inmate who has confessed hisguilt 
in open court while represented by counsel should not have the same 
access to post-conviction DNA testing as an inmate who has consistently 
maintained his or her innocence, but was convicted after a trial. I 
think that is an important distinction in the context of a Federal 
statute.
    The Hatch bill provides a reasonable time limit of 2\1/2\ 
years from the date of its enactment to allow Federal inmates 
to file requests for post-conviction DNA testing. In 1996, 
Congress amended the habeas corpus statute to incorporate a 
one-year time limit on collateral attacks on Federal 
convictions. I think that amendment reflected the sentiment 
that it is appropriate to place reasonable time restrictions on 
post-conviction claims.
    I think that thinking also applies here. If there are 
innocent Federal inmates who were convicted before DNA was 
available, even if they were convicted 12, 13, 14 years ago, 
those cases shouldn't be barred from consideration. But a 
reasonable window of time of 2\1/2\ or 3 years, or whatever, to 
have those matters considered I think is appropriate.
    The Hatch bill provides that a court should not order post-
conviction testing if, after the review of the record of the 
trial of the applicant, the court determines that there is no 
reasonable possibility that the testing will produce 
exculpatory evidence that would establish the actual innocence 
of the applicant. This gives the court the ability to deny a 
post-conviction request if it determines that the DNA testing 
would not be material to the finding of guilt.
    There is no need to burden the system with mandatory post-
conviction DNA testing in cases where the results of a DNA test 
could have no bearing on the finding of guilt. In imposing a 
materiality requirement, the Hatch bill is consistent with the 
Illinois statute, the New York statute, and also well-settled 
legal precedent that imposes a materiality requirement in other 
settings involving post-conviction requests for relief.
    I have seen other statutes, including the Leahy statute, 
that would require post-conviction DNA testing in cases upon a 
showing merely that an exculpatory DNA test would be relevant. 
Relevant evidence covers a very broad spectrum, much broader 
than relevant and material evidence.
    For example, it would be certainly relevant to show that a 
Federal inmate convicted of extortion did not lick a postage 
stamp on an envelope that contained an extortionate demand. But 
it would certainly not be material if the other evidence in the 
case included legal wiretap recordings of the inmate's 
extortionate demands. There is no basis in law or logic for 
abandoning the concept of materiality in the limited context of 
a post-conviction request for DNA testing.
    In this regard, I should also note that the proposed 
statutes that mandate DNA testing without a finding that it 
would be material also draw no distinction between the trial 
and the guilty plea, which I think is important in the Federal 
system. The combination of those attributes of the statute 
would allow a Federal inmate who has confessed and pleaded 
guilty in open court to force the system to conduct DNA testing 
even if the results would not prove his innocence, but would 
instead produce evidence that would merely be relevant to his 
claim. In other words, the Federal extortion inmate would be 
entitled to mandatory DNA testing of the postage stamp even 
though he pleaded guilty and his extortionate demands were 
lawfully tape recorded.
    In closing, I would say that the Hatch bill does an 
excellent job of allowing access to post-conviction DNA testing 
to innocent Federal inmates without creating the possibility 
that the system could be burdened with meritless requests that 
would obscure the ones with merit, and that is why I support 
the Hatch bill.
    I thank you for your time and your consideration.
    The Chairman. I want to thank this panel for being here. I 
feel badly that I have to leave. I am going to turn the 
committee over to Senator Sessions to begin the questioning and 
then he will go to Senator Leahy. But this has been a very good 
panel. Both panels have been excellent.
    We are going to try to get these problems resolved. We need 
your help. I would like to get it out of the realm of politics. 
I would like to get it out of the realm of prodeath penalty/
antideath penalty. I would like to do what is logical, just and 
right, and if we can do that, you will have a bill this year. 
If we can't do it, if it is just another big, broad way of 
trying to get rid of the death penalty, we are going to go 
nowhere. Or if it is just a bill that is trying to implement 
the death penalty, we are going to get nowhere.
    So I would challenge you to help the committee. Each of you 
has your beliefs about the death penalty, but to me that is not 
the real issue here. The real issue is how do we do justice and 
do we implement justice and how do we ensure that justice is 
going to occur. So I am challenging you to help us to do that.
    I think Senator Leahy and I work very well together on many 
matters, and I intend to work very closely with him on this 
one. And I would like to get it out of politics, if we can, and 
there has been a little bit of a temptation here to put into 
politics by some. Justice is more important to me than anything 
else.
    Senator Leahy. Mr. Chairman.
    The Chairman. Yes.
    Senator Leahy. I might say I couldn't agree with you more 
about keeping it out of politics. That is why on my legislation 
we both Republicans and Democrats on it. The 45 people who will 
join similar legislation in the House, LaHood-Delahunt, they 
have both Republicans and Democrats on that. We have both 
supporters and opponents of the death penalty on it.
    That is why I have spent nearly a year in putting this 
together to make sure that we would have both those who support 
the death penalty and those who oppose the death penalty, both 
Republicans and Democrats, conservatives and moderates and 
liberals, on it. We have tried very much to keep it out of 
politics.
    And when I have been asked questions about this, even to 
interject this in any way into the presidential race, at each 
of my interviews on that I have stated very clearly this is not 
intended for it. Now, the assistant attorney general from 
California spoke of the Leahy bill. One of the reasons I 
corrected her was to make sure she understood this was not just 
a Democrat bill. This is a Democrat andRepublican bill, as it 
is in the House.
    The Chairman. Well, there are a lot of Republicans who 
don't think it is a Republican bill at all, and there are some 
Democrats who don't think it is a Democrat bill. So the point I 
am trying to make is that we have had lots of criticism of both 
bills here. That is the purpose of this. It isn't to sit here 
and triumph our own bills. I am not trying to do that.
    We are going to file our bill to create the discussion 
because there are differences between these two bills that are 
very significant. I think some of the criticisms of the Leahy 
bill and of the Hatch bill we have to look at, and what I want 
to do is come up with a bill that is truly bipartisan in every 
way and gets a hundred percent of the people, if we can, or at 
least a high percentage of Democrats and Republicans to vote 
for it. That is what I want to do.
    If we can do that, I will feel like Senator Leahy and I and 
other members on this committee, including the distinguished 
Senator from Alabama, who plays a significant role in this 
area, will have done something really worthwhile for the 
country. So, again, I am calling for everybody to put aside 
politics, triumphing one bill over another, and let's just see 
if we can come up with a bill that literally will solve the 
problems and yet be fair to both sides, prosecutions and 
defenses, and hopefully prevent people like Mr. Fritz from ever 
having to go through that kind of suffering again.
    Your testimony probably is the most relevant here today 
because you are the one who has really suffered from an 
injustice in the law. And I think that these people that Mr. 
Baird brought up, Mr. Criner--if the way he has described it is 
right, that is despicable that he is still in jail. Frankly, I 
don't care who wants to make political hay out of what. All I 
can say is that I think both of our presidential candidates 
would agree with what I am saying here, so I don't want to see 
anybody trying to make hay against one or the other candidates.
    Mr. Fritz. Mr. Hatch, I have heard mentioned here a couple 
of times today talk about State sovereignty. You know, I am 
very respectful of that myself, but also I think one thing that 
I really see that is just as equally important is judicial 
economy. Moving the courts and getting these cases going and 
the financial considerations that several members spoke about 
is going to have to take place to initiate this. But I think 
the only way that something like this is going to truly work is 
through a federally-funded bill.
    The Chairman. Well, we have got that point and, of course, 
that is what we are talking about, and I hope we can prevent 
convictions like yours from ever happening again. I would like 
to do that. The history of this world is a history of some 
injustice, and a lot of us are trying to work through that and 
trying to find ways of overcoming injustice.
    I just want to thank you all because I think these two 
panels have been just excellent, irrespective of what our 
differing points of view are on the death penalty. To me, that 
is almost irrelevant to this discussion. We want to make sure 
that we can do what is right.
    So let me turn the time over to Senator Sessions, if you 
can take over and be the first questioner.
    Senator Sessions [presiding]. I thought I would ask a 
couple of questions that I know Senator Hatch was concerned 
about. Two of our witnesses, Mr. Scheck and Mr. Clarke, worked 
on DNA evidentiary issues in the O.J. Simpson murder 
prosecution. Mr. Scheck worked on behalf of Mr. Simpson and Mr. 
Clarke worked on behalf of the State of California, so I have a 
question.
    One of our panelists was convicted, Mr. Fritz, before the 
DNA technology was commonly available. As we all know, he was 
released last year after DNA tests revealed that the biological 
evidence found at the crime could not have come from him.
    Is there any doubt that Mr. Fritz could have obtained post-
conviction DNA testing under the standard in the Hatch 
legislation?
    Mr. Scheck. Well, I think that one good thing about all of 
this is that Mr. Clarke and I and our DNA Commission are in 
agreement. If Mr. Clarke and I sat down and looked at the 
cases, I think he will tell you, as well, 99 percent of the 
time, 99.9 percent of the time, we would agree on how to do 
this.
    I think the real problem is that we really don't have a lot 
of training for lawyers certainly in the forensic area, and we 
all know the terrible problems of counsel in capital cases, 
frankly, and non-capital cases in order to get this done. The 
problem, as I mentioned to the chairman, is that arguably one 
could say that in Dennis' case that in 1988 I think Oklahoma 
was the first State--Life Codes introduced DNA testing in the 
State of Oklahoma, so it was actually around then. There are 
other cases in the State of Oklahoma that the same thing 
happened.
    There is a guy named Robert Miller who is profiled in our 
book, who again was sentenced to death for the worst and most 
brutal kind of rape and murders of elderly women. And DNA 
testing proved that he was innocent, and also identified the 
person who committed the crime in the State of Oklahoma. He 
tried to get DNA testing, too.
    The answer is, under that provision, there is serious doubt 
that Dennis could have gotten the test. And, frankly, it took 
him over four years of petitioning the courts to get it. So 
under the statute of limitations, there is again a difficulty 
here; in other words, the new statute of limitations that says 
within a certain number of years--I think the latest version I 
saw was 30 months--you have to make an application to get the 
DNA tests and get all the records together. And that would be 
difficult in Dennis' case and many of the others.
    Senator Sessions. Well, Mr. Clarke, I understand at the 
trial of Mr. Fritz, identity was an issue and the State's 
evidence rested on biological evidence. So under the Hatch 
bill, certainly would you agree that he would have been able to 
obtain relief?
    Mr. Clarke. There is no question in my mind. As I was 
becoming familiar with Mr. Fritz' case, including through what 
he was describing today, I was thinking of our own in-office 
review program, and this is the type of case that would stand 
out, I think, as clearly one under the program that we have 
instituted that again will mirror the standard described in the 
proposed Hatch legislation. This is a case that would cry out 
for DNA typing, an individual who claimed all along ``it wasn't 
me.'' The question is, is there evidence that could help 
resolve that clearly, and I think this is exactly the type of 
case that the Hatch legislationwould demand testing in.
    Senator Sessions. Mr. Wooley, perhaps, and Mr. Scheck, in 
the Hatch legislation you have got a 30-month requirement to 
get your request in, I guess, and filed. Let's talk about that 
a little bit. In one instance, it doesn't seem to bother me 
whether it was indefinite because as each year goes by, fewer 
and fewer people are going to be available to claim it. So at 
first blush, it doesn't.
    But it does suggest to me that if you have an unlimited 
time, people would be delaying and seeking the request and the 
evidence may be less available. But primarily it could be used 
as a last-minute tool to file on the eve of a date set for 
execution to delay executions.
    Mr. Wooley, would you comment on whether or not you could 
agree to anything other than a 30-month rule in your theory 
there?
    Mr. Wooley. Senator Sessions, I look at it as a former 
Federal prosecutor. In the Federal system, I think it is a very 
reasonable time limit. What it is not is a statute of 
limitations, and I think on the first reading of it some people 
look at it and say it looks like a statute of limitations. But 
the fact is the Hatch bill would allow someone who was 
convicted at a time when Mr. Fritz was convicted to bring his 
matter before a Federal judge.
    It would just say from the date of the enactment of the 
statute, you have 30 months to try to get that together. Within 
the Federal system, where I think we are going to see a very 
limited number of situations that fall in this category, given 
the different nature of Federal prosecutions, I think it is a 
very reasonable, workable time limit. I wouldn't begin to opine 
about how that would work in different State systems, where I 
have never practiced.
    Mr. Scheck. I think that is a big difference because the 
bill is really directed, when you get down to it, to the 
States. And in the States, our DNA Commission reached the 
judgment after much debate that a statute of limitations, that 
30 months, wouldn't make sense because it just takes so long. 
The older the case, the more difficult it is to gather the 
transcripts and get everything together.
    Senator Sessions. But the time commences after you make the 
claim, does it not, not after the judge makes a ruling? You 
have to make a claim and commence the process within 30 months.
    Mr. Scheck. We are talking about people who are indigent. 
Some of them could be mentally retarded in many instances. Take 
Earl Washington, in Virginia, who is going to get tests that I 
have a high degree of confidence are going to show he is 
innocent. That is another case profiled on the ``Frontline'' 
special tonight.
    You really can't expect that people are going to be able to 
get the materials together, particularly without counsel, as 
Mr. Stevenson says, with any particular time limit. The bottom 
line is--and let me try to be non-political about this--I think 
Governor Bush made the right call in the McGinn case, which is 
exactly this kind of case, because I came in within 2 weeks. 
The lawyers previous to that had never been able to focus the 
presiding judge on the appropriate tests because they didn't 
understand them, frankly.
    They never said we can have an STR DNA databanking test 
done on semen in the underwear, and a mitochondrial DNA test 
done on the pubic hair that would be determinative perhaps of 
guilt or innocence, but certainly as to whether or not he was 
death-eligible. And there were all of these appeals that went 
on and nobody really frankly had the training or understanding 
to make that clear. And then when the presiding judge saw it, 
he made the right call, and it went to Governor Bush and he 
made the right call.
    You know, I have real doubts under the Hatch statute as 
written right now whether McGinn would get relief. But I think 
it is appropriate, as Governor Bush decided in that case, that 
he get relief, and we have to draft these statutes so that kind 
of--and I have no idea how it is going to turn out in his case, 
but watch Earl Washington in Virginia, where Governor Gilmore 
just 2 weeks ago finally agreed to do the testing. I have a 
high degree of confidence he is going to be exonerated based on 
the prior results, and that man was sentenced to death.
    Senator Sessions. Well, I would just say this. The Supreme 
Court, Justice Powell writing a number of years ago, said a 
pattern seems to be developing in capital cases of multiple 
review, which is true. Before anybody is ever executed, it 
always gets to the Federal court of appeals and the State 
supreme court, often two or more times.
    But, anyway, patterns of review in which claims that could 
have been presented years ago are brought forward often in 
piecemeal fashion only after the execution date is set or 
becomes imminent. Federal courts should not continue to 
tolerate, even in capital cases, abuse of the process.
    So I guess if we could figure out perhaps a 30-month 
statute to make sure we are not ending up with a devise to 
piecemeal delay cases even longer than they are today, I might 
be willing to listen. The 30 months seems to me an adequate 
amount of time.
    Senator Leahy.
    Senator Leahy. Thank you.
    Mr. Clarke, you are a member of the National Commission on 
the Future of DNA Evidence. Do you support the Commission's 
recommendation that there should be no statute of limitations 
on claims of post-conviction DNA testing?
    Mr. Clarke. Well, I think one of the items that we looked 
at in the context of post-conviction review was a question of 
whether there should be a provision where--and in the ultimate 
version there is--that a court in deciding whether or not to 
grant relief, that is grant DNA testing, must reach a threshold 
decision, is this for purposes of delay or not. In other words, 
is this the fifth, sixth, seventh Federal habeas corpus 
petition in a State capital verdict? That is obviously much of 
what was addressed by Congress in terms of death penalty habeas 
corpus reform, and so on.
    I think that provision in not only our recommendations, but 
also the model statute that our commission provided helps 
account for that. There is not a strict time limit contained in 
our recommendations and model statute. There is, however, a 
provision that in a sense deals with that which is designed to 
eliminate the use of such a device simply to delay execution. 
So I think in many respects that solves it. I don't have an 
objection to either a fixed amount or a provision similar to 
the one that we utilized in our model statute.
    Mr. Stevenson. Senator, if I could just comment on that, I 
do think it is worth acknowledging that to the extent that we 
put restrictions on when these petitions must be filed, we have 
to increase the resources we are going toallocate in the 
defense community to manage them because the community of people who 
are going to actually get the most requests are defense communities. 
They are going to get a hundred requests and have to decide among that 
hundred requests which of them meet the guidelines.
    And under the Hatch bill, unless there is going to be some 
allocation for counsel, Mr. Fritz would not get relief. In my 
State of Alabama, there is no place for Mr. Fritz to write. Who 
is he going to write for the assistance? We don't have an 
appellate defender office, we don't have a post-conviction 
defender office. He would have to write a private lawyer and 
convince that private lawyer, for $1,000, to look into his 
case. And I suspect it would take him longer than 30 months in 
many instances, and certainly a lot of people, to even find 
that lawyer. And so I think it is fine for us----
    Senator Leahy. And even be assured that that lawyer was a 
competent lawyer.
    Mr. Stevenson. Absolutely.
    Senator Leahy. As you and I both know, around courthouses 
there are some lawyers who basically--their office is the pay 
phone booth in the courthouse.
    Mr. Stevenson. Well, that is absolutely right. I think that 
if we provide people with adequate representation--as Senator 
Sessions suggests, you know, this thing can exhaust itself over 
a period of time. In several years, we should see a very small 
number of these kinds of requests being made because people 
have either disqualified themselves by having the technology 
available at trial or they have exhausted the remedies.
    Innocent people on death row in jails and prisons are not 
anxious to stay in jail and prison. If you afford them this 
remedy, I guarantee you the innocent people will demand testing 
as soon as possible. They have no interest to stay in prison 
longer, kind of waiting to see what happens.
    Senator Leahy. Well, I agree with you on that, and let me 
just follow up, then, with the real-life situation of Mr. 
Fritz.
    Mr. Fritz, you were a science teacher, a coach; by nature 
of that position, a respected member of the community, a family 
man. And then, as you have testified, your world came crashing 
down on you when you were charged with a crime that you did not 
commit when the Oklahoma authorities basically put you at the 
scene even though you hadn't been there.
    Then once convicted--as we now all acknowledge, both the 
prosecutor and everybody else acknowledge was a mistake--you 
asked the State of Oklahoma to have your DNA tested. In other 
words, you wanted to say, look, I am willing to take this 
chance; I will prove I am not the person. Why did they say no?
    Mr. Fritz. Well, every time I petitioned both the State and 
Federal courts for the motion to test and inspect the DNA 
evidence, they always answered back that I had never raised a 
constitutional claim. And I always replied, well, how 
unconstitutional is it to keep an innocent man in the 
penitentiary. I always briefed immediately all kinds of 
different labeled motions that I would, in my unskilled desire 
to get the testing done----
    Senator Leahy. You weren't able to get an attorney?
    Mr. Fritz. No; As a matter of fact, the only attorney that 
I had as a matter of right was after my State direct appeal. 
And since I didn't have any money, I couldn't afford an 
attorney, so I worked on my own case from that point on.
    Senator Leahy. So, Mr. Fritz, when the court said it is not 
a constitutional claim--I don't want to put words in your 
mouth, but would you say that perhaps you took a less abstract 
view of it than they did insofar as you were the one who was 
locked up?
    Mr. Fritz. Most definitely.
    Senator Leahy. You were the one who was innocent and you 
were the one who thought that perhaps that affected your 
constitutional rights. Is that a fair statement?
    Mr. Fritz. Yes. I could actually see what was happening. It 
was just a procedure whereby me being a pro se litigant, I got 
the cursory review that I was expecting. No real attention was 
ever paid to my case circumstances or my challenges that I 
made.
    Actually, where my mistake came in was that I argued the 
sufficiency of the evidence all the way through to the U.S. 
Supreme Court under the weight of the evidence because I didn't 
know that after you get out of the State courts, you have to 
argue the elements. So that was their hole in the fence.
    Senator Leahy. You weren't a lawyer?
    Mr. Fritz. No.
    Senator Leahy. Mr. Scheck, Chairman Hatch's proposal says 
DNA testing is allowed only if the technology was not available 
at the time of trial. When did DNA technology become available, 
and how would this threshold requirement have affected Mr. 
Fritz in his case or any of these other people you have helped 
exonerate?
    Mr. Scheck. I think in almost virtually every case one 
could say, in theory, DNA testing was available at the time of 
the trial. And DNA testing has changed. We have more 
discriminating tests than we had in the past. I think that the 
Leahy-Smith bill accurately captures the balance and is 
consistent with exactly what we put in our DNA Commission 
report, in that you want to make a showing that there is an 
accurate test available that could be dispositive of the issue 
of guilt or innocence.
    None of us are here suggesting that in a case where 
somebody has done DNA testing which is pretty incriminating, 
like an RFLP test, that that person is ever going to get the 
test. We are saying, all of us here, that if there was, let's 
say, what they call a DQ-alpha test which wasn't very 
discriminating, like in the case of Tim Durham of Tulsa, OK, 
that a retest with a more discriminating technology can prove 
innocence.
    That is the kind of balance we can strike and I think it is 
accurately and correctly put in the Leahy-Smith bill. And the 
language, unfortunately, in the Hatch bill, in theory, read 
literally, could preclude virtually every one of our clients 
from getting the test.
    And the problem, I have to say, is let's be frank. In cases 
where there were heinous crimes committed, in many 
jurisdictions where the prosecutors and the judge are either 
running for reelection or are heavily invested in the verdict, 
nobody really likes looking into these cases and doing the DNA 
tests. They really don't in many instances. Some people do.
    We have our commission recommendations that say people 
should consent to the DNA testing notwithstanding the statute 
of limitations. Fifty percent of the time, theprosecutors in 
appropriate cases stand up and do justice, like my friend Woody here, 
but a lot of times they don't. That is why we need real requirements 
and a standard that is reasonable.
    Senator Sessions. Senator Feingold.
    Senator Feingold. Mr. Chairman, briefly, I was intrigued by 
your reference to Justice Powell because at the end of his 
career, after he saw this mess of the death penalty, the one 
thing he said he would do over basically was he would get rid 
of the death penalty. That is how he ended his career, even 
though he was one of the architects of the Federal death 
penalty.
    I understand Chairman Hatch's admonition about politics 
with regard to this issue. We have to be very careful. The 
problem is that one of the places where the death penalty is 
terribly active happens to be the State of Texas, and it is 
simply not possible for us to talk about this problem without, 
on occasion, referring to what is going on in Texas in some of 
the cases.
    In the spirit of just making the record correct, I want to 
make a point with regard to this issue that the chairman 
raised, which is the requirement in Texas that there be two 
counsel as somehow an answer to the question of adequate 
representation.
    Take the case of lawyer Joe Cannon, in 1979, when Mr. Carl 
Johnson was convicted of murder and sent to death row by a 
Texas State court. During the trial, his lead counsel, Joe 
Cannon, was often asleep. Now, Mr. Cannon had co-counsel, as 
apparently required by Texas law. Mr. Philip Scardino, who was 
two years out of law school and recalls the whole experience as 
``frightening.'' He said, ``All I could do was nudge him 
sometimes and try to wake him up.''
    Johnson's appellate attorney, David Dow, said the trial 
transcript gives the impression that there was no one in the 
courtroom defending Johnson. It, quote, ``goes on for pages and 
pages and there is not a whisper from anyone representing 
him,'' unquote. Mr. Johnson was executed in 1995, the twelfth 
execution under Governor Bush's period as governor. It is 
literally cold comfort to Mr. Johnson that there is this second 
counsel requirement.
    And I would add that Mr. Fritz here would not have had the 
problem of his incompetent counsel resolved by the Hatch bill. 
That isn't dealt with by the Hatch bill, so the bill is 
inadequate in that regard.
    A second point for the record. Some have suggested that the 
Hatch bill is adequate and that it is okay; that as long as 
somebody has happened to plead guilty, that should be a bar in 
some cases to future DNA tests. Let me just suggest that in 
some cases people might plead guilty to avoid the death 
penalty. Maybe they would take life imprisonment out of fear 
that they would get the death penalty. I think we have to at 
least look into whether that is a very wise provision.
    Mr. Scheck. Senator Feingold, I should add that there is a 
case, David Vasquez, in Virginia, who was a mentally retarded 
man who pled guilty and took a life sentence. And DNA proved 
that he did not commit the crime, but a man named Spencer who 
was ultimately executed in the State of Virginia for a series 
of rape homicides. So, that does happen.
    Senator Feingold. Well, I thank you for that. I just want 
it noted for the record that these two are specific examples of 
particular points about how we draft this legislation. It is 
not about politics; it is about trying to make this really 
work.
    Mr. Scheck, I want to thank you especially. I want to say 
that I have read every word of your book already.
    Senator Sessions. Senator Feingold, if I could make one 
response, and I will give you extra time. As I understand it, 
this trial in 1979 was before the counsel law passed, and 
Governor Bush did sign that law.
    Senator Feingold. I appreciate your point.
    Senator Sessions. So the point is not invalid that you 
made, but I did want to correct that bit of the record.
    Senator Feingold. Mr. Chairman, if it is just a question of 
two counsel, that doesn't mean you have got adequate counsel.
    Senator Sessions. Well, one of them ought to be awake if 
they have got two of them. Both of them ought to be awake.
    Senator Feingold. As I say, cold comfort for the gentleman 
who is no longer with us.
    Mr. Scheck, I want to thank you for this book. It was truly 
an eye-opening examination of the failings of our criminal 
justice system. I commend you and Peter Neufeld and Jim Dwyer, 
and you and your colleagues at the Innocence Project for what 
you have contributed. It has been very helpful with regard to 
all that we have done.
    Mr. Scheck. Thank you, Senator.
    Senator Feingold. And I just want to ask one question 
because I know it is very late, and I thank the chairman, of 
Mr. Stevenson.
    I understand that you often speak of the problems of 
discrimination in our criminal justice system, and in 
particular in the administration of capital punishment. You 
mentioned that topic only briefly in your written testimony and 
I thought I would just give you a minute or two here to say a 
little bit about what the committee should know about this and 
whether the Innocence Protection Act addresses the problem.
    Mr. Stevenson. Well, there are obviously a lot of factors 
that we can identify that are common in cases where innocent 
people end up wrongfully convicted. The Illinois review, for 
example, showed that in 33 of the cases where people had been 
sentenced to death, the lawyers had been subsequently disbarred 
or disciplined for bad lawyering.
    We know that there is this problem of using jailhouse 
snitches or informants and witnesses who are inherently 
unreliable. We know that there is this problem of suppressing 
exculpatory evidence and misconduct. The dynamics surrounding 
many of these capital cases where everybody is invested in 
getting the right result are very compelling.
    I represented a man who spent 6 years on death row for a 
crime he didn't commit, where he was actually placed on death 
row for 15 months before going to trial. And that was justified 
by the atmospherics that a capital case sometimes creates.
    And then there is a problem of race. In 80 percent of the 
cases where people have been executed in my State of Alabama, 
they were tried by juries that grossly underrepresented 
African-Americans. It is not a Southern problem. Illinois made 
the same finding with regard to racial bias in jury selection 
in those proceedings.
    My office has been involved in 23 cases where courtshave 
reversed capital murder convictions after finding that prosecutors 
exercised peremptory strikes in a racially discriminatory manner. And I 
think if we are going to comprehensively deal with this problem of 
innocence, we have got to be thinking about all of these issues because 
when we look at the capital context and we see that only 10 percent of 
the 87 people who have been released have been released on DNA 
evidence, there are other factors that explain the other 90 percent 
that are critically important if we are going to make a difference.
    Senator Feingold. Thank you very much. Thank you, Mr. 
Chairman.
    Senator Sessions. Thank you, Senator Feingold.
    Some progress has been made, Mr. Stevenson, I think you 
would recognize, subsequent to Batson, which was the 
requirement by the United States Supreme Court that judges 
scrutinize the jury strikes of a prosecutor. Some of these 
reversals, I assume, are based on the Batson Supreme Court 
ruling that you obtained?
    Mr. Stevenson. That is correct. In fact, almost all of them 
are. Before Batson, there would have been no opportunity to 
bring these issues to court, and they have all been subsequent 
to Batson. I think Batson has made a huge difference. 
Unfortunately, because of the way in which these proceedings 
take place, now what happens is a prosecutor has to give a 
race-neutral reason for explaining why people of color have 
been excluded.
    Unfortunately, in too many places, that hasn't solved the 
problem. It has just made jury selection a lot more 
entertaining because you get these wonderfully creative reasons 
about why people are being excluded which we continue to 
believe are pretext. But it has advanced this effort. I think 
we have made some progress on this issue, but I think there is 
a lot more progress to be made.
    Senator Sessions. It is my observation, post-Batson, that 
juries probably overrepresent the African American community on 
the jury. In other words, you will tend to have routinely a 
larger percentage of the jury that is African American than in 
the community in Alabama. Would you agree with that?
    Mr. Stevenson. Well, I think it really depends on where you 
are. We just had an execution in the State of Alabama where the 
prosecutor, prior to the execution, admitted that peremptory 
strikes were used in a racially-conscious manner. In that 
particular county, Russell County, no one has ever been tried 
in a capital case where the representation of African-Americans 
has been proportionate to the community percentage. That is a 
county that is 40 percent black. They have never had a trial 
jury with more than one African American on it.
    Senator Sessions. That case would have been tried prior to 
Batson.
    Mr. Stevenson. No. It was tried after Batson.
    Senator Sessions. The conviction?
    Mr. Stevenson. Yes. The appeal took place after Batson as 
well. But Batson does not apply to any case that was not tried 
or pending on a direct appeal before 1986.
    Senator Sessions. I would have thought that would have been 
a good basis for appeal.
    Mr. Stevenson. Well, we thought so too, Senator. 
[Laughter.]
    Senator Sessions. Well, a lot of things have happened. The 
legislature has improved and narrowed their statutes for death 
penalties. Congress has passed Federal laws that are effective. 
I think we should be constantly conscious of the possibility 
that prejudice or other factors, or than evidence of guilt or 
innocence, enter into a case, and I think that is important.
    Mr. Fritz, thank you for your moving testimony that strikes 
at the heart of what our justice system is about. It ought to 
cause all of us to pause and think, those of us who have been 
in the prosecuting business for a long time, to really think 
about it.
    One thing I would mention with regard to the time limit is 
I think, Mr. Stevenson, you are correct. An innocent person is 
going to promptly demand his DNA evidence as soon as he feels 
like he has a right to get it. But a person who is guilty may 
use that by waiting until the last minute as a delay, and if we 
could deal with that possibility, I would be open to working 
with Senator Leahy on maybe getting around the 30-month rule.
    Mr. Scheck, you shared in your book some comments about 
eyewitness testimony. I have seen two cases, one of which was 
in Federal court when I was an assistant United States Attorney 
that turned out to be an innocent person. A person robbed a 
bank. He had a certain briefcase and a pistol, and he was 
identified in photograph display. The individual was arrested 
and was brought in All five bank tellers identified him.
    Sometime later, an individual was caught in nearby 
Pensacola, FL, with a briefcase with a latch that didn't quite 
open, a chrome-plated revolver, and a briefcase of money that 
came from the bank. And we held a lineup and two of the tellers 
still picked out the wrong guy and three of them picked out the 
correct guy.
    I don't know that there is any way we can deal with that. 
Sometimes, maybe I think a cautionary jury charge might be 
appropriate. But when you have never seen a person before and 
you are having to make an I.D. under stressful circumstances, 
there has been some history that errors have occurred. You 
mentioned that in your book. Do you agree with that?
    Mr. Scheck. Oh, absolutely. There is no question that the 
mistaken eyewitness identification is the single greatest cause 
of the conviction of the innocent. We found that in our study, 
in actual innocence of the post-conviction DNA exonerations. 
Historically, that has always been true.
    I appreciate the fact that you mentioned five eyewitnesses 
in your case. Kirk Bloodsworth was a man who was sentenced to 
death in Maryland and there were five eyewitnesses who said he 
committed the rape and murder of this little girl. DNA testing 
proved him innocent.
    We actually have, Senator, some suggestions that DNA 
teaches us. That is why these post-conviction DNA cases are so 
important. There is a Justice NIJ report, ``A Guide for Law 
Enforcement on Eyewitness Evidence,'' that sets out some 
recommendations that I think would greatly reduce the 
conviction of the innocent without in any way reducing correct 
identifications. It is a real series of recommendations here 
that advances justice. Be generous to us in our ability to 
identify these miscarriages with DNA. We will learn a lot about 
the system and how to fix it.
    Senator Sessions. Well, I agree. It is just scary if that 
is all you have is an eyewitness. There is one othercase that I 
knew, and I talked to the mother, a convenience store robbery. The man 
was at her home and he came outside and the victim identified him, and 
he was tried and convicted and he was at home with her all night, and 
she knew he didn't do it. Eventually, they overturned the conviction 
and he was released, but he served, unfortunately, some time in jail. 
That was an eyewitness identification that was somewhat troubling.
    Mr. Clarke. Actually, in that vein, Senator Sessions, if I 
might, I think one of the benefits of this experience has been 
a, I will call it healthy skepticism that jurors have about 
eyewitness identification. I mean, there is an expression that 
I am sure you are familiar with and we are all familiar with 
who have tried cases before: give me a good circumstantial 
evidence case any day over eyewitness identification.
    Senator Sessions. You are exactly right. You give me the 
briefcase, the pistol, and the money from the bank, and you can 
have somebody saying that is the guy. In fact, both of those 
people looked alike when they were put in the lineup. They had 
the same brown hair and receding hairline, and the same thin 
features, not exactly, but you could see how a teller with good 
faith could make an error.
    I would offer into the record a letter to this committee 
from the National Association of Attorneys General, signed by 
30 attorneys general asking us to be cautious with the Leahy 
legislation. So I would offer that into the record.
    Senator Sessions. Anything else you have, Senator Leahy? We 
have a vote going on, I believe.
    Senator Leahy. We had one witness that we had asked to have 
before us, Calvin Johnson. He was exonerated by DNA after 16 
years in prison. I will put his handwritten letter in the 
record, but let me just take a moment to read from it. He 
speaks about being released when they found they had the wrong 
person and the Innocence Project released him on DNA evidence. 
Just listen to the last part of his letter.
    ``But at 42 years of age, I have so much catching-up to do. 
Where would I have been if those 16 years had not been stolen 
from me? Would I have a family of my own? Would I own my own 
home? Would I have money saved for my children's future? Could 
I go to a bank and obtain a loan? My answer is yes. And now 
after 16 years, with no family of my own, no home of my own, no 
real credit established, all I want is the opportunity to 
fulfill my dreams, to help my parents in the later years of 
their life, to live the American dream, and to be a productive 
and active citizen in our society.''
    [The letter referred to follows:]
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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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