U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

80–318 PDF 2002

INNOCENCE PROTECTION ACT OF 2001

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

ON

H.R. 912

JUNE 18, 2002

Serial No. 89

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman 

HENRY J. HYDE, Illinois 

GEORGE W. GEKAS, Pennsylvania 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

BOB BARR, Georgia 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

LINDSEY O. GRAHAM, South Carolina 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL E. ISSA, California 

MELISSA A. HART, Pennsylvania 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

JOHN CONYERS, JR., Michigan 

BARNEY FRANK, Massachusetts 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California

PHILIP G. KIKO, Chief of Staff-General Counsel 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

LAMAR SMITH, Texas, Chairman

MARK GREEN, Wisconsin, Vice Chair

HOWARD COBLE, North Carolina 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

BOB BARR, Georgia 

RIC KELLER, Florida 

MIKE PENCE, Indiana 

ROBERT C. SCOTT, Virginia 

SHEILA JACKSON LEE, Texas 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ADAM B. SCHIFF, California

JAY APPERSON, Chief Counsel 

SEAN MCLAUGHLIN, Counsel 

ELIZABETH SOKUL, Counsel 

KATY CROOKS, Counsel 

BOBBY VASSAR, Minority Counsel 

(III)

C O N T E N T S 

JUNE 18, 2002

OPENING STATEMENT 

Page 

The Honorable Lamar Smith, a Representative in Congress From the State 

of Texas, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security ........................................................................................................ 1

The Honorable Robert C. Scott, a Representative in Congress From the State 

of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 2

The Honorable William D. Delahunt, a Representative in Congress From 

the State of Massachusetts ................................................................................. 5

The Honorable Bob Goodlatte, a Representative in Congress From the State 

of Virginia ............................................................................................................. 9

WITNESSES 

Honorable Paul A. Logli, State’s Attorney, Winnebago County, Rockford, IL 

Oral Testimony ..................................................................................................... 9

Prepared Statement ............................................................................................. 11

Mr. Peter J. Neufeld, Co-Director, Innocence Project, Benjamin N. Cardozo 

School of Law, New York, NY 

Oral Testimony ..................................................................................................... 15

Prepared Statement ............................................................................................. 18

Mr. Robert A. Graci, Assistant Executive Deputy Attorney General of Pennsylvania, Harrisburg, PA 

Oral Testimony ..................................................................................................... 21

Prepared Statement ............................................................................................. 23

Ms. Beth A. Wilkinson, former Federal Prosecutor, Oklahoma City Bombing 

Case, Washington, DC 

Oral Testimony ..................................................................................................... 27

Prepared Statement ............................................................................................. 28

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable William D. Delahunt, a Representative 

in Congress From the State of Massachusetts .................................................. 6

Prepared Statement of the Honorable Ray LaHood, a Representative in Congress From the State of Illinois .......................................................................... 7

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of Alexandra Arriaga, Director of Government Relations, 

Amnesty Internationl USA .................................................................................. 53

Letters of Endorsement for the Innocence Protection Act .................................... 54

Letter from Rep. William D. Delahunt and Rep. Ray LaHood ............................ 74

Report of The Constitution Project on Mandatory Justice: Eighteen Reforms 

to the Death Penalty ............................................................................................. 75

Articles on the Innocence Protection Act ............................................................... 155

(1)

INNOCENCE PROTECTION ACT OF 2001

TUESDAY, JUNE 18, 2002

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 4:05 p.m., in Room 

2237, Rayburn House Office Building, Hon. Lamar Smith [Chairman of the Subcommittee] presiding. 

Mr. SMITH. The Subcommittee on Crime, Terrorism, and Homeland Security will come to order. I’m going to recognize Members 

for opening statements, after which I’ll introduce the witnesses. 

And I’ll recognize myself for an opening statement first. 

Today’s hearing will examine H.R. 912, the Innocence Protection 

Act of 2001, introduced by a Member of this Subcommittee, Congressman Delahunt. 

This legislation provides convicted offenders in capital and noncapital cases with access to post-conviction DNA testing, notwithstanding any statute of limitation or other procedural bar to relief. 

The bill promotes the full utilization of DNA testing technology and 

aims to ensure that effective legal representation is provided in 

cases involving the death penalty. 

I support the broad objectives of this bill but do have some reservations about the specifics. For example, under this legislation, 

the post-conviction DNA testing requirements would apply to every 

Federal and State crime, not just those crimes where a defendant 

is facing the death penalty. This would allow defendants even in 

misdemeanor cases to petition the courts to have DNA testing 

done. The results would be added costs to the States and increased 

backlogs of both convicted offender and crime scene DNA samples. 

The standard that a court must use to determine if evidence 

should be tested for DNA following a conviction is whether or not 

the test has the ‘‘scientific potential’’ to produce evidence that the 

defendant did not commit the crime. It would be helpful, in my 

judgment, if the term ‘‘scientific potential’’ was defined. 

Legislation should not lead to abuses in cases where DNA testing 

was available at the time of the trial and the defense declined to 

seek it. If a defendant passed up DNA testing the first time, there 

should be no cause to seek it later. Post-conviction DNA testing 

should only be allowed in those cases where it would establish the 

defendant’s actual innocence. 

I’m also concerned about provisions in the bill to deny Federal 

DNA grant funding to States that are unwilling to adopt federally 

2

prescribed standards for post-conviction DNA testing. This is an 

unfunded Federal mandate that would compel States to conform to 

the new Federal requirements in order to maintain their current 

eligibility for DNA grant funding. 

The bill also requires the retention of evidence in criminal cases 

beyond the point of conviction in order to facilitate post-conviction 

challenges to convictions and sentences on the basis of DNA evidence. Evidence that could be subjected to DNA testing would have 

to be retained in all cases for at least 6 months. Imposing such a 

requirement might be impractical. Whenever an offender was 

present at a crime scene or touched some object involved in a 

crime, some biological residue might remain. The physical evidence 

in almost every case would have to be retained by Federal, State, 

and local law enforcement agencies in order to avoid liability and 

post-conviction appeal issues. 

For example, if a stolen vehicle was used in the commission of 

a crime, a person accused of the crime might claim that DNA testing of the interior of the vehicle would establish his innocence. 

Under the provisions of this bill, the defendant could refrain from 

seeking DNA testing prior to trial and would then be free to apply 

for post-conviction DNA testing. The Government, meanwhile, 

would be required to retain the vehicle beyond the point of conviction. It could not be returned to its rightful owner, and the Government would bear the expense and logistical difficulties of continuing to maintain it in a condition that preserves the DNA. 

The bill before us today contains a number of provisions that are 

unrelated to post-conviction DNA testing or effective representation 

in capital cases. DNA testing should be used as a tool to confirm 

innocence, not as a tool to undermine the broadly supported use of 

capital punishment. According to a recent Gallup Poll, 72 percent 

of Americans favor the death penalty for persons convicted of murder. 

One section of the bill strikes language from current law in the 

drug kingpin statute that directs the court to impose the death 

penalty when a jury has recommended that a sentence of death be 

imposed. The bill gives the court the option of sentencing a defendant to life in prison even if a jury has determined that a death sentence is warranted. This rolls back existing law and waters down 

capital punishment. 

I’m not sure that that’s what the author intended, and I look forward to hearing from him on that issue. 

I also look forward to hearing from the witnesses on these particular issues and welcome the opportunity to consult with Mr. 

Delahunt on this legislation to ensure that it protects and assists 

innocent defendants. 

That concludes my opening statement, and I’ll now recognize the 

gentleman from Virginia, the Ranking Member, for his opening 

statement. 

Mr. SCOTT. Thank you, Mr. Chairman. I’d like to thank you for 

scheduling the hearing on the Innocence Protection Act of 2001. I’d 

also like to thank and congratulate our colleagues, Bill Delahunt, 

a Member of this Subcommittee, and Ray LaHood for their outstanding job in shepherding this bill to the point where they have 

3

gained a broad, bipartisan co-sponsorship of 236 Members of the 

House of Representatives. 

There can be no greater calling for this Subcommittee than the 

call to protect innocent people from unjust convictions and even 

execution. That’s what the hearing is all about, criminal law and 

procedures premised on the golden thread of criminal justice; that 

is, the presumption of innocence. It’s a common law relating back 

to the Romans. 

In recent years, the advent of DNA evidence has shown us unequivocally that we have been violating this principle with astounding frequency. There are now up to 108 convicted and sentenced individuals who have been exonerated by DNA evidence, including 13 who were on death row. 

The numbers are even greater on exclusions at the outset of 

criminal investigations. The FBI reveals that almost a quarter of 

the suspects who are DNA-tested are exonerated. Our DNA is incontrovertible proof that innocent people are sentenced to death in 

this country. Despite our reverence for the presumption of innocence, DNA evidence is simply a way of revealing that there are 

fatal flaws in our system. 

The real question that we have to answer is, what is wrong with 

a system where, but for DNA evidence, innocent people would be 

put death? 

As awful as it is to be wrongfully accused of committing a crime, 

it would seem an unimaginable horror to languish on death row for 

years for a murder you didn’t commit. Yet, that’s exactly what’s 

happening all over the country. Since the death penalty was reinstated in 1977, 101 people on death row have been exonerated. The 

figure represents one exoneration for every seven executions. 

In Illinois, the number of exonerations outpaced the number of 

executions. And that prompted Governor Ryan—a conservative Republican—in good conscience to declare a moratorium on executions 

until the system could be examined. 

Death penalties have been erroneously meted out based on the 

willingness to tolerate significant defects in our criminal system. 

As we saw in the case of the former boxer Rubin ‘‘Hurricane’’

Carter and the Ramparts cases in Los Angeles, police and prosecutorial misconduct is one serious flaw. Add to that the inaccurate 

witness identifications, the use of jailhouse snitches, confused confessions by mentally retarded defendants, and ineffective representation, all of which have led to unjust application of death penalties. 

In a 23-year study conducted by a professor at Columbia University, involving 4,500 capital cases in 34 States, the study revealed 

that courts found serious reversible error in 68 percent of capital 

cases. Of these, 82 percent were not sentenced to death on retrial, 

including 7 percent who were found to be factually innocent of the 

capital charge. 

I understand that the Innocence Project finds—and Mr. Neufeld, 

one of our witnesses will be testifying, that project found that in 

one-third of the cases it handles in which DNA evidence is still 

available, convicted defendants were found to be outright innocent. 

When we consider that the reason they were convicted is due to 

flaws in our criminal justice system, there’s every reason to believe 

4

that the percentage of erroneous convictions is the same in cases 

where DNA evidence is not available. 

The notion that flaws in the system can be addressed through a 

Governor’s clemency powers is clearly an inadequate response to a 

serious problem. Our criminal justice principles are designed to ensure a fair trial for all accused persons. 

Ultimate questions of life, death, or freedom should not depend 

on the politics of the moment or the popularity of a defendant or 

whether the Governor is in an election campaign or any such vagary. Furthermore, the Governor’s office is an inappropriate forum 

to decide such questions. The Governor has no subpoena power, no 

right or opportunity to cross-examine key witnesses or to observe 

witnesses subjected to cross-examination by advocates familiar 

with the case. Nor does the Governor have other investigatory powers to ensure fairness. 

The forum for testing the reliability of evidence is the trial process, not the political forum of a Governor’s office. 

H.R. 912 goes a long way in addressing these flaws in our criminal justice system which put innocent people on death row. However, there are flaws in the administration of the death penalty in 

this country which H.R. 912 does not address. 

There is overwhelming evidence, for example, that sometimes the 

death penalty is administered in a racially disparate manner in 

this country. In a March 1994 study of the Subcommittee on Civil 

and Constitutional Rights of the House Judiciary Committee, entitled ‘‘Racial Disparities in the Federal Death Penalty Prosecutions, 

1988 to 1994,’’ revealed the following: Racial minorities are being 

prosecuted under the Federal death penalty far beyond their portion in the general population or the population of criminal offenders. Analysis of prosecutions under the Federal death penalty provisions in the Anti-drug Abuse Act of 1988 reveals that 89 percent 

of the defendants selected for capital prosecution have been either 

African-American or Mexican-American. 

In February of that year, the U.S. Supreme Court Justice Harry 

A. Blackmun, after voting to uphold the death penalty for a number of years, wrote the following: Twenty years have passed since 

this Court declared that the death penalty must be imposed fairly 

and with reasonable consistency or not at all. And despite the effort of the States and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake. 

Mr. Chairman, I believe it is our responsibility to ensure that 

people are not mistakenly put to death or deprived of their freedom 

on account of preventable errors or flaws in our system of justice. 

We have a bill before us which will go a long way in providing that 

assurance, and a list of witnesses who can guide our efforts. I look 

forward to their testimony and working with you and our colleagues in furthering this vitally important initiative. 

Mr. SMITH. Thank you, Mr. Scott. 

The gentleman from Wisconsin, Mr. Green, is recognized for his 

opening statement. 

Mr. GREEN. I have no opening statement. Thank you, Mr. Chairman. 

5

Mr. SMITH. The gentleman from Massachusetts, Mr. Delahunt, 

one of the authors of the bill, is recognized for his opening statement. 

Mr. DELAHUNT. Mr. Chairman, let me begin by thanking you for 

scheduling this hearing and, additionally, for the multiple courtesies that you have extended to me and my staff. And also, let me 

note that some preliminary discussions have begun among our 

staffs. And while I am aware and cognizant that there are some 

differences, I genuinely believe that we have a real opportunity to 

reach an agreement that can result in an end product that we can 

all be proud of and embrace. And I thank you for that. 

This bill is about much more than simply preventing wrongful 

convictions. I would suggest it’s about restoring confidence in the 

very integrity of our justice system, a system that is essential to 

a healthy, viable democracy. And the success of that system depends on its ability to maintain the confidence of the American people. And the truth is that the confidence has been profoundly shaken by recent findings about the rate of serious, reversible error in 

death penalty cases. Who knows what goes on in noncapital cases? 

But an error rate of nearly 7 out of 10 is unacceptable in the 

United States of America. It’s that simple. 

In addition, there’s a growing number of highly visible cases in 

which innocent people have been totally exonerated of the crime— people like Kirk Bloodsworth, who spent 9 years in prison in Maryland, including 2 years on death row; and Ray Krone, who spent 

10 years in prison in Arizona, 3 of them on death row. And both 

of whom are here today, and I would like to acknowledge their 

presence. 

Now, during his testimony, it’s my understanding that Mr. 

Neufeld will introduce two other individuals, who, though not sentenced to death, endured lengthy prison terms for crimes of which 

they too were innocent. 

I would submit it’s cases like these that have caused respected 

judges, like Supreme Court Justice Sandra Day O’Connor, to express concern, and I have a quote here, that we may well be allowing some innocent defendants to be executed. This is a Supreme 

Court Judge of the United States making this public statement. 

Now, DNA technology has been a powerful tool in exonerating 

the innocent as well as convicting the guilty. But I would suggest, 

as importantly, it has illuminated the frailties within the criminal 

justice system and simultaneously provided us with a map, a blueprint, if you will, for correcting them, for providing some remedies. 

And it’s inescapable that DNA testing has taught us that the 

best safeguard against wrongful convictions is a qualified attorney 

with the necessary resources to present a vigorous defense. 

Some suggest that the high rate of reversals show that the system is working. I can’t accept that. I would say that’s absurd. We 

cannot know whether the appeals process is catching all those errors or not. But what we do know is that the errors are not being 

caught at trial and that innocent people are being convicted while 

the guilty remain free to prey on our communities. 

Now, DNA has exonerated 12 of the people freed from death row 

and another 96 who were wrongfully convicted of other serious 

crimes. In at least 16 of these cases, the same test that exonerated 

6

an innocent person has led to the apprehension of the real criminal, the individual who perpetrated the crime—16 times. This proposal and what we’re doing here today is as much about public 

safety as it is deterring wrongful convictions. 

Yet, access to testing is often opposed by prosecutors and must 

be litigated, sometimes for years. Evidence that might have established innocence has been misplaced or destroyed. And this bill 

would ensure that biological material is preserved and DNA testing 

is made available in every appropriate case, and I underscore ‘‘appropriate case.’’

But DNA is not a magic bullet that will eliminate the problem 

of wrongful convictions. We must take steps to prevent wrongful 

convictions in the first place. And providing qualified counsel is the 

essential safeguard against unjust verdicts in capital cases. 

I spent 20 years of my life as a prosecutor, and I know that the 

adversarial process can find the truth only when both sides are up 

to the job. Now, some have suggested that our society cannot afford 

to pay for qualified counsel in every capital case. 

Well, the truth, Mr. Chairman, is that we cannot afford to do 

otherwise, if our system of justice is to have the confidence of the 

American people. 

Mr. Chairman, that concludes my statement, and I would ask 

that the statement of Congressman LaHood be included in the 

record together with a number of endorsements, editorials, and 

other materials pertaining to the bill. 

And, again, Mr. Chairman, thank you. 

Mr. SMITH. Thank you, Mr. Delahunt. And, without objection, the 

materials that you referred to will be made a part of the record. 

[The prepared statement of Mr. Delahunt follows:]

PREPARED STATEMENT OF THE HONORABLE WILLIAM D. DELAHUNT, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF MASSACHUSETTS

Mr. Chairman, on behalf of Congressman LaHood and the 236 House cosponsors 

of this bipartisan bill, I want to thank you for convening this hearing. 

I also want to express my thanks to you and Chairman Sensenbrenner for being 

so accommodating to me and to our witnesses, and for working with us to address 

your concerns about the bill and to perfect it. And I think we have a real opportunity to reach an agreement that can go to the floor. 

This bill is not about the death penalty. It’s about the quality of justice in America. Congressman LaHood and I have differing views on capital punishment, but we 

agree that a just society does not deprive innocent people of their life or their liberty. 

Over the past 25 years, 782 people have been executed in the United States. During the same period, 101 have been exonerated after spending years on death row 

for crimes they did not commit. Some came within days or hours of being put to 

death. 

Two of those people are here with us today: Kirk Bloodsworth, who spent nine 

years in prison in Maryland, including two years on death row; and Ray Krone, who 

spent 10 years in prison in Arizona, three of them on death row. 

It’s cases like theirs that have caused conservative judges like Justice O’Connor 

to express concern that the system, and I quote, ‘‘may well be allowing some innocent defendants to be executed.’’ It’s cases like theirs that convinced Governor 

George Ryan—a longtime supporter of the death penalty—to suspend executions in 

Illinois. And caused Governor Glendening of Maryland to take a similar step just 

last month. 

A major Columbia University study looked at 4,500 capital sentences handed 

down over a 23-year period, and discovered that the courts had found serious, reversible error in 68 percent of those cases. That’s an error rate of nearly seven in 

10. 

7

Seven in 10. A failure of such magnitude calls into question the fairness and integrity of the American justice system itself. 

Some suggest that the high rate of reversals shows that the system is working. 

That is nonsense. We cannot know whether the appeals process is catching all the 

errors or not. But we do know that the errors are not being caught at trial. Innocent 

people like Kirk Bloodsworth and Ray Krone are serving lengthy sentences for 

crimes they did not commit, while the real perpetrators go free. 

The Innocence Protection Act focuses on the two most effective steps we can take 

to ensure greater fairness and accuracy in the administration of justice: access to 

post-conviction DNA testing, and the right to competent counsel in death penalty 

cases. 

These reforms have been endorsed by leading jurists, prosecutors and legal experts, including seven former State attorneys general and Judge William Sessions, 

a former director of the FBI. And by commentators from across the political spectrum, including Bruce Fein and George Will. 

DNA has exonerated 12 of the people freed from death row, and another 96 who 

were wrongfully convicted of serious crimes. In at least 16 of these cases, the same 

test that exonerated an innocent person has led to the apprehension of the real perpetrator. 

Yet access to testing is often opposed by prosecutors and must be litigated, sometimes for years. Evidence that might have established innocence has been misplaced 

or destroyed. Our bill would help ensure that biological material is preserved and 

DNA testing is made available in every appropriate case. 

But DNA is not a ‘‘magic bullet’’ that will eliminate the problem of wrongful convictions. Even when it is available—even when it exonerates an inmate after years 

of imprisonment—it cannot give back the life that he or she has lost. 

We must take steps to prevent wrongful convictions in the first place. And the 

single most important step is to ensure that every indigent defendant in a capital 

case has a competent attorney. The Innocence Protection Act would encourage 

States to develop minimum standards for capital representation, and would provide 

them with resources to help ensure that lawyers are available who meet those 

standards. 

I was a prosecutor for over 20 years. And I know that the adversarial process can 

find the truth only when the lawyers on both sides are up to the job. 

We cannot tolerate a system that relies on reporters and journalism students to 

develop new evidence that was never presented at trial. We cannot tolerate a system in which chance plays such a profound role in determining whether a defendant 

lives or dies. 

Some have suggested that our society cannot afford to pay for qualified counsel 

in every capital case. The truth, Mr. Chairman, is that we cannot afford to do otherwise, if our system of justice is to have the confidence of the American people. 

Thank you. 

Mr. Chairman, I would ask that the statement of Congressman LaHood be included in the record, together with a number of endorsements, editorials and miscellaneous materials pertaining to the bill.

[The prepared statement of Mr. LaHood follows:]

PREPARED STATEMENT OF THE HONORABLE RAY LAHOOD, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF ILLINOIS

Mr. Chairman, I would like to thank you and the members of the House Subcommittee on Crime, Terrorism, and Homeland Security for holding a hearing on 

the Innocence Protection Act and allowing me the opportunity to submit a statement 

for the record. 

As you know, in January of 2000, Illinois Governor George Ryan declared a moratorium on executions in Illinois after raising concerns about the state’s death penalty system. The state executing an innocent person is the ultimate nightmare. My 

great state has nearly done this 13 times since 1977 when the death penalty was 

reinstated in Illinois. This number is astonishing. As the recent 101st exoneration 

has exhibited, this problem is not limited to Illinois. As you know, Maryland Governor Parris Glendening declared a moratorium on executions in his state on May 

9th until a study could be conducted to examine Maryland’s death penalty system. 

Mr. Chairman, I support the death penalty, and as a supporter, I strongly believe 

the system must be fair. As you can see by the figures I just gave you, our system 

is fatally flawed. 

To help fix the system, Governor Ryan appointed a Commission, in March of 2000, 

to study what had gone so terribly wrong. His Commission was chaired by a former 

8

judge, senator, and U.S. attorney, and was also made up of former prosecutors, defense lawyers, and non-lawyers. After nearly 2 years of study and discussion, the 

Commission put together an invaluable document developing 85 recommendations 

to improve our justice system. I commend Governor Ryan on his efforts. 

Several of the main components of these findings are mirrored in H.R. 912, the 

Innocence Protection Act of 2001, which I have reintroduced, in the 107th Congress, 

with my colleague Congressman Bill Delahunt. I introduced this bill because I believe that those of us who support the death penalty have a special responsibility 

to ensure it is applied fairly. As I mentioned before, I am pleased to report that we 

have 236 cosponsors of this legislation with 62 of them Republicans. This is enough 

to pass this legislation should we be given the opportunity to bring it to the floor 

for a vote. To me, this means people are beginning to recognize the importance of 

this bipartisan legislation. 

As long as innocent Americans are on death row, the guilty are on our streets. 

As shown by countless cases, many defendants lack competent counsel and are unable to obtain and present evidence that will establish their innocence. The Innocence Protection Act seeks to address both of these concerns by giving those accused 

of murder access to new DNA technology that may not have been available at the 

time of their trial and by ensuring that the attorneys, in whose hands these lives 

are places, are qualified. In Illinois alone, 22 defendants have been sentenced to 

death while being represented by attorneys who have either been disbarred or suspended at some time during their legal careers. In some cases, attorneys have even 

been found sleeping or under the influence of alcohol during the trial. I believe ensuring competent counsel is a vitally important step in the right direction toward 

fixing our capital punishment system. 

This legislation would increase public confidence in our nation’s judicial system 

specifically as it relates to the death penalty. People have spent years on death row 

for crimes they did not commit. Some have come within hours of execution. A death 

sentence is the ultimate punishment. Its absolute finality demands that we be 100% 

certain that we’ve got the right person. For in protecting the innocent, we also ensure that the guilty do not go free. 

Again, Mr. Chairman, thank you and the Committee for the opportunity to submit 

my statement for the record.

Mr. SMITH. The gentleman from North Carolina, Mr. Coble, is 

recognized for his opening comments. 

Mr. COBLE. Thank you, Mr. Chairman. I have no prepared opening statement, but I will say a word or two and be brief. 

I commend you for having scheduled this hearing. I furthermore 

commend the distinguished gentleman from Massachusetts, Mr. 

Delahunt, and the distinguished gentleman from Illinois, Mr. 

LaHood, for having introduced this bill. 

Mr. Chairman, I am a proponent for the imposition of the death 

penalty. I am also a co-sponsor of this bill. And I do not see that 

that is inconsistent. 

Now, you did raise some points, Mr. Chairman, in your statement that we might want to examine if some fine-tuning becomes 

necessary, and that may in fact be the case. But I think, on balance, this is probably a good first step toward addressing what is 

a problem. And I am not uncomfortable being a co-sponsor, but 

there may be some fine-tuning, and of course we have time to do 

that. 

I thank you again, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Coble. 

The gentleman from California, Mr. Schiff, is recognized for his 

opening statement. 

Mr. SCHIFF. I’ll waive statement, Mr. Chairman. 

Mr. SMITH. Okay, thank you. 

The gentleman from Virginia, Mr. Goodlatte, is recognized for an 

opening statement. 

9

Mr. GOODLATTE. Thank you, Mr. Chairman. I’d like to commend 

you for holding this hearing and to associate myself with your remarks. 

I will say to the gentleman from Massachusetts that I am very 

interested in what he’s attempting to accomplish here. I think 

there are many good and important provisions in this bill. I’m concerned particularly regarding the miscellaneous provisions in the 

bill, which, quite frankly, they seem to me to be miscellaneous and 

somewhat extraneous from the main purpose of the bill. 

And if there could be some changes with regard to provisions relating to drug kingpins and certain capital offenses committed by 

17-year-old juveniles, like mass murders and so on, then I would 

be interested in what I take to be the core of the bill, which is making sure that innocent individuals are able to get the evidence to 

prove their innocence. And that is certainly a good and worthy 

cause, and I commend you and want to work with you in that direction. But I do have some concerns, as were raised by the Chairman. 

Mr. COBLE. Mr. Chairman, may I have one more, brief——

Mr. SMITH. Thank you, Mr. Goodlatte. 

Yes, the gentleman from North Carolina is recognized. 

Mr. COBLE. To reiterate what you said concerning the revenue 

involved, I think we need to be careful in examining that, to be 

sure that we instill prudence as we look at the revenue side of this; 

that is, unfunded mandates, et cetera. But knowing the gentleman 

from Massachusetts as I do, and the gentleman from Illinois, 

they’re easing dogs with whom to hunt—[Laughter.]—so we ought 

to be able to do okay. 

Mr. SMITH. Thank you, Mr. Coble. 

Let me thank all the Members for their attendance. This is exceptionally good attendance, but it’s an exceptionally important 

hearing as well. 

I’ll introduce the witnesses, and they are the Honorable Paul A. 

Logli, State’s attorney, Winnebago County, Rockford, IL; Mr. Peter 

J. Neufeld, co-director, Innocence Project, Benjamin N. Cardozo 

School of Law, New York, NY; Mr. Robert A. Graci, assistant executive deputy attorney general of Pennsylvania, from Harrisburg, 

PA; and Ms. Beth A. Wilkinson, former Federal prosecutor, Oklahoma City bombing case, Washington, DC. 

We welcome you all. Before we begin, let me issue the requisite 

warning that you also took note of, I hope, in the letters you received from the Subcommittee, and that is, we do need to limit 

your testimony to 5 minutes. And I am going to have to enforce 

that rule today. 

Mr. Logli, we’ll begin with you and look forward to your testimony. 

STATEMENT OF THE HONORABLE PAUL A. LOGLI, STATE’S 

ATTORNEY, WINNEBAGO COUNTY, ROCKFORD, IL 

Mr. LOGLI. Thank you, Mr. Chairman. I appreciate this opportunity, on behalf of the National District Attorneys Association, to 

testify in the matter of this bill. I want to emphasize first to the 

Committee that, as a prosecutor, I represent the only trial attorVerDate Jan 17 2002 13:41 Aug 29, 2002 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\061802\80318.000 HJUD1 PsN: 80318
10

neys in the United States whose primary ethical obligation is to 

seek the truth wherever it takes us. 

I, as well as all local prosecutors, support the use of DNA technology in catching criminals, convicting the guilty, and identifying 

the truly innocent. 

To augment my remarks, I’m asking that a copy of the ‘‘National 

District Attorneys Association’s Policy on DNA Technology and the 

Criminal Justice System’’ be placed in the record. It sets out in 

greater details the nature of our position on DNA. 

Our association has consistently embraced DNA technology. For 

20 years, we’ve been in the trial courts of this Nation, seeking to 

introduce DNA evidence, many times over defense objection. We 

have also been in the forefront of training our lawyers to work with 

DNA evidence. 

We have supported the use of DNA testing where such testing 

will prove the actual innocence of a previously convicted individual 

and not serve as a diversionary attack on the conviction. We want 

to point out that the type of post-conviction DNA testing, such as 

contemplated by this act, involves only cases prosecuted before adequate DNA technology existed. In the future, the need for this postconviction DNA testing should cease, because of the availability of 

pretrial testing we have now. And, thus, while the debate is important, we are examining a finite number of cases whose numbers 

are dwindling. 

Post-conviction DNA testing, again, should be employed only in 

those cases where a result favorable to the defendant establishes 

proof of the defendant’s actual innocence, exonerating the defendant as a perpetrator or accomplice of the crime. 

Post-conviction DNA testing may be appropriate where testing 

previously had been performed because present-day methodologies 

allow the testing of much smaller samples in a shorter time and 

are reliable on degraded samples. 

Having said this, we want to point out that the resources for 

DNA testing are finite. We believe that post-conviction relief remedies must protect against potential abuse and that such remedies 

must respect the importance of finality in the criminal justice system. Thus, the remedy should be subject to reasonable time limits 

on the relief that can be granted. 

The peace of mind of a crime victim or crime victim’s family 

should not be frivolously disturbed by a lack of finality arising from 

post-conviction relief remedies. We think that the testing, DNA 

testing in post-conviction situations, we support, but when identity 

is an issue and when the test can prove actual innocence. 

No one, when we talk about competency of counsel, no one, especially prosecutors, wants incompetent counsel on the other side of 

the table, especially in a murder case. It doesn’t do anybody any 

good to have to retry a case because of error by either prosecution 

or defense. It benefits no one, especially the victims. 

But we believe that federally mandated or coerced competency 

standards for State court defense counsel are neither, at this point, 

workable or necessary. We point out to you that of the 38 States 

that have the death penalty, 22 of those States already have counsel competency standards. Illinois has competency standards not 

only for defense lawyers but for assistant prosecutors as well. It exVerDate Jan 17 2002 13:41 Aug 29, 2002 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\061802\80318.000 HJUD1 PsN: 80318
11

empts the elected prosecutors, but any assistant prosecutor has to 

be certified to try a capital case. And many States have had statutes for defense counsel, and more States are considering those. 

We support counsel competency. And because of that, we ask for 

this body to consider the idea of helping us to attract and retain 

prosecutors and defenders. We know that prosecutors and defenders come to us with heavy student loan obligations, that they’re 

paid amounts of money that don’t provide them with the money to 

pay those student loans. So we’re asking that student loan forgiveness be part of any plan to increase counsel competency on both 

sides, for both prosecutors and defenders. Competency is affected 

by high turnover and the lack of the ability to attract prosecutors 

and defenders and to retain them. 

We would ask that any counsel competency schemed passed by 

the Congress would incorporate provisions for student loan forgiveness and for continuing training at national centers that includes, 

also, ethics training, such as the National Advocacy Center, which 

is for State and Federal prosecutors in Columbia, South Carolina. 

We need to make an effort to give our prosecutors and defenders 

the opportunity to strive for excellence not merely to seek to get 

through the next case. 

On behalf of America’s prosecutors, I and the National District 

Attorneys Association urge you do to those things that we believe 

will truly advance our mutual goals of improving the criminal justice system. We look forward to continuing to work with you on 

maximizing our use of DNA technology and ensuring that our 

criminal justice system has provided the highest degree of legal 

skills on both sides of counsel table and in every courthouse in our 

Nation. 

[The prepared statement of Mr. Logli follows:]

PREPARED STATEMENT OF PAUL A. LOGLI

My name is Paul Logli and I am the elected state’s attorney in Winnebago County, Illinois. I want to thank you, on behalf of the National District Attorneys Association, for the opportunity to present our position on DNA testing in post conviction 

settings and share some thoughts on the issue of counsel competency. The views 

that I express today represent the views of that Association and the beliefs of thousands of local prosecutors across this country. 

To place my remarks in context—let me briefly tell you about my jurisdiction. 

Winnebago County is located about 70 miles west of Chicago. It has a population 

of nearly 280,000 people living in a diverse community. The county seat is Rockford—the second largest city in the state. I have been a prosecutor for 18 years and 

am honored to have served in my current position for 16 years, having been elected 

to office 4 times. I previously served as a judge of the local circuit court for nearly 

6 years. I currently supervise a staff that includes 38 assistant state’s attorneys. Annually, my office handles about 4000 felony cases. 

I want to emphasize to the Committee that as a prosecutor I represent the only 

trial attorneys in the United States whose primary ethical obligation is to seek the 

truth wherever it takes us. I, as well as all local prosecutors, support the use of 

DNA technology in catching criminals, convicting the guilty and identifying the 

truly innocent. 

DNA TESTING IN THE CRIMINAL JUSTICE SYSTEM

To augment my remarks I would like to ask that a copy of the National District 

Attorneys Association’s Policy on DNA Technology and the Criminal Justice System 

be placed in the record. It sets out in greater detail the points that I wish to make 

today. 

Our Association has consistently embraced DNA technology as a scientific breakthrough in the search for truth. Since the mid-1980s, when DNA evidence was first 

12

introduced we have fought for its admission in criminal trials and we have been instrumental in providing training to prosecutors on using DNA Evidence in investigations and in the courtroom. With the use of DNA evidence, prosecutors are often 

able to conclusively establish the guilt of a defendant in cases where identity is at 

issue. Prosecutors and law enforcement agencies also utilize DNA technologies to 

eliminate suspects and exonerate the innocent. It is our view that this powerful 

weapon against the criminal offender is best used when such resources are made 

fully available in the earliest stages of an investigation and before a conviction. 

Forensic DNA typing has had a broad, positive impact on the criminal justice system. In recent years, convictions have been obtained that previously would have 

been impossible. Countless suspects have been eliminated prior to the filing of 

charges. Old, unsolved criminal cases, as well as new cases, have been solved. In 

a very few case, mistakenly accused defendants have been freed both before trial 

and after incarceration. Increasingly, the unidentified remains of crime victims are 

being identified. 

Advances in DNA technology hold enormous potential to enhance our quality of 

justice even more dramatically. However, significant increases in resources are 

needed to enlarge forensic laboratory capacity and expand DNA databases. No other 

investment in our criminal justice system will do more to protect the innocent, convict the guilty and reduce human suffering. 

In keeping with these beliefs, the National District Attorneys Association has supported funding for forensic laboratories to eliminate backlogs in the testing of biological samples from convicted offenders and crime scenes. Funding by the federal 

government is a critical component in realizing the full potential of DNA testing. 

Federal funding should not be contingent upon a state’s adoption of any specific federally mandated and unfunded legislation such as post conviction relief standards. 

We strongly supported the Paul Coverdell National Forensic Science Improvement 

Act in recognition that we needed to strengthen our ability to exploit DNA technology and we will continue to support legislative efforts to provide funding support 

for state forensic laboratories, an example of which is our association’s support of 

Senator Biden’s efforts to eliminate the unconscionable backlog of untested rape kits 

in police department evidence rooms across this country. 

POST-CONVICTION RELIEF

The National District Attorneys Association has always supported the use of DNA 

testing where such testing will prove the actual innocence of a previously convicted 

individual and not serve as a diversionary attack on the conviction. 

First, we need to clear up several popular misconceptions. 

The vast majority of criminal cases do not involve DNA evidence. Just as fingerprint evidence, although available for decades, is seldom a conclusive factor in a 

prosecution, DNA evidence will likewise, even though it is increasingly available 

and more determinative, will not be a factor in a large majority of cases. 

Secondly, the absence of a biological sample, in and of itself, is not necessarily 

dispositive of innocence. There can be many reasons why an identifiable biological 

sample was not available at a crime scene, yet an individual can still be guilty of 

the commission of a crime. In many cases DNA testing results that exclude an individual as the donor of biological evidence do not exonerate a suspect as innocent. 

In a sexual assault involving multiple perpetrators, for example, a defendant may 

have participated in the rape without depositing identified DNA evidence. In such 

cases, the absence of a sample or a comparative exclusion is not synonymous with 

exoneration. Moreover, as powerful as DNA evidence is, it tells us nothing about 

issues such as consent, self-defense or the criminal intent of the perpetrator. 

Lastly, the issue of post-conviction DNA testing, such as contemplated by the Innocence Protection Act, involves only cases prosecuted before adequate DNA technology existed. In the future, the need for post-conviction DNA testing should cease 

because of the availability of pretrial testing with advanced technology. Thus, while 

the debate is important, we are examining a finite number of cases whose numbers 

are dwindling. 

We believe that post-conviction DNA testing, in most cases, should be afforded 

only where such testing was not previously available to the defendant. Post-conviction testing should be employed only in those cases where a result favorable to the 

defendant establishes proof of the defendant’s actual innocence, exonerating the defendant as the perpetrator or accomplice to the crime. 

In limited circumstances post-conviction DNA testing may be appropriate where 

testing previously has been performed. Although DNA testing in criminal cases became available in the mid-1980s, the forms of testing typically used today were not 

widely available until the mid-1990s. These present-day methodologies allow the 

13

testing of much smaller samples in a shorter time and are reliable on degraded samples. 

Because of these considerations the National District Attorneys Association has 

consistently supported state legislation that removes barriers to post-conviction 

DNA testing in appropriate cases and with appropriate safeguards. 

We recognize that in some states, legislative enactment of new legal remedies 

may be required to provide post-conviction DNA testing. Many states have enacted 

such legislation, and others are considering such measures. The NDAA supports enabling legislation that addresses concerns of prosecutors and victims, such as avoiding frivolous litigation and preserving necessary finality in the criminal justice system. These statutes should provide for the inclusion in the national CODIS database 

of DNA profiles obtained as a result of post-conviction DNA testing. This provision 

will help to solve crimes and deter abuses of the post-conviction relief mechanism. 

Having said this, however, I need to emphasize that post-conviction testing should 

be employed only in those cases in which a result favorable to the defendant establishes proof of the defendant’s actual innocence. Requiring only that the results of 

a DNA test produce material, non-cumulative evidence, and not specifically prove 

innocence, allows defendants to waste valuable resources, unnecessarily burden the 

courts and further frustrate victims. Decisions about such issues as the categories 

of convicted persons to be offered post-conviction relief and the standards to be employed are best made at the state or local level, where decisions can reflect the 

needs, resources and concerns of states and communities. 

The resources for DNA testing are finite. Conducting frivolous or non-conclusive 

tests could mean that another test freeing an innocent person or apprehending a 

guilty person would not be done in a timely manner or at all. 

The National District Attorneys Association believes that post-conviction relief 

remedies must protect against potential abuse and that such remedies must respect 

the importance of finality in the criminal justice system. Thus, such remedies should 

be subject to limits on the period in which relief may be sought. 

Current prohibitions limiting post-conviction relief are grounded in legitimate policy, enhancing the search for the truth and minimizing potential abuse. The defense, 

for example, should be expected to exercise due diligence in developing and presenting all legally appropriate exonerating or mitigating evidence to the trial jury. 

Potentially exonerating evidence should be actively pursued. A trial jury’s verdict 

should be accorded great weight and normally should be overturned only where 

harmful legal error has occurred or an innocent person convicted. The peace of mind 

of a crime victim or crime victim’s family should not be frivolously disturbed by a 

lack of finality arising from post-conviction relief remedies. For these reasons, any 

initiatives to identify and exonerate the innocent should also protect against abuses. 

Time limits on the period in which post-conviction relief may be sought provide 

one of the most important means to ensure finality in the criminal justice system. 

Post-conviction relief remedies are needed only for a relatively small group of cases 

prosecuted before present-day DNA technology existed. Reasonable time limits on 

the consideration of these cases should not interfere with due process for convicted 

individuals who may seek relief. 

Law enforcement should be permitted to destroy biological samples from closed 

cases, provided that convicted individuals are given adequate notice and opportunity 

to request testing. Otherwise, police agencies and the courts would be required to 

retain virtually all evidence for all time. 

NDAA also support the decisions of individual prosecution offices to initiate postconviction DNA testing programs. Such programs can serve to strengthen public 

confidence in the criminal justice system. 

In summary, any post-conviction DNA testing program should focus only on those 

cases where identity is an issue and where testing would, assuming exculpatory results, establish the actual innocence of an individual. Such programs should recognize the need for finality in criminal justice proceedings by establishing a limited 

time period in which cases will be considered and then reviewing those cases in an 

expedited manner. 

COMPETENCY OF COUNSEL

No one, especially prosecutors, wants incompetent defense lawyers on the other 

side of the counsel table, especially in a murder case. This issue is not only confined 

to the 38 states with capital punishment, but also concerns the 12 states and the 

District of Columbia that do not have the death penalty. Any prosecutor who has 

had to retry a case more than once, especially a capital case, is most supportive of 

good and competent counsel for the defense. It benefits no one, especially victims, 

to have to retry a major case. Having said that, we do not believe that federallyVerDate Jan 17 2002 13:41 Aug 29, 2002 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6621 G:\WORK\CRIME\061802\80318.000 HJUD1 PsN: 80318
14

mandated or coerced competency standards for state court defense counsel are either workable or necessary. 

Our system of criminal law is inherently a state system—some 95% of all criminal 

trials are at the local level of government. A single solution to issues of counsel competency fails to recognize the distinction between the various state systems and the 

authority of the judiciary in each. The judiciary is trusted with serving as the arbitrator for all facets of the court system and, in real world instances, serve as the 

final determinator of counsel competency every day. 

We can only assume that the judiciary would find it most disturbing that anyone 

other than they would be tasked to determine the competency of any attorney appearing in a state courtroom. Moreover even if other means are pursued to determine competency the judiciary will still have the final word in the matter. 

The president of NDAA, Kevin Meenan, recently directed that a survey be completed of state competency standards and the results are, I believe, significant in 

terms of the work before this committee. 

Of the 38 states that allow a death sentence to be imposed as a criminal penalty, 

22 states have either a statute or court rule that establishes standards for competency of counsel at the trial, appellate and/or post-conviction level. Among these 

statutes and rules there are certain common elements; while the specifics may vary 

these include: minimum years of experience; minimum number of trials; minimum 

number of capital trials; whether the attorney has demonstrated necessary proficiency; the amount of training in capital defense required; whether the attorney 

is familiar with the practice and procedure of the state criminal court; and whether 

the attorney is familiar with the utilization of experts, including but not limited to 

psychiatric and forensic experts. 

My point is that the states are fulfilling their obligations to their citizens. I recognize that not all states have adopted competency standards and believe that there 

are meaningful incentives that the Congress can provide to effectively enhance competency in all jurisdictions. 

In many states the criminal justice system is strapped for operating funds and 

setting up or expanding effective public defender offices becomes an impossible proposition. ‘‘Seed’’ money to set up systems and purchase equipment; assistance in providing training for both prosecutors and defense counsel; and help in bringing the 

best lawyers to work in the criminal justice system will do more then federally imposed requirements. 

The Bureau of Justice Statistics has just released a survey on local prosecutors 

(‘‘Prosecutors in State Court, 2002, May 2002) that has some telling insights into 

counsel competency. While the report refers only to prosecutor offices I would suspect that it applies equally to those in public defender offices. 

In portraying issues in regard to recruiting and retaining assistant prosecutors 

the report points out that in 2001 half the entering prosecutors in this country 

earned less than $35,000 a year, half of our experienced prosecutors earn less than 

$45,000, and most supervisory attorneys earn less than $60,000 per year. 

The assistant state’s attorneys in my office start at $38,000 I would note that administrative assistants and paralegals earn more here in Washington then do our 

young prosecutors and public defenders who provide essential legal representation 

on a daily basis in the state courts back home. 

My point in relating this is that the provisions advanced by the Innocence Protection Act as to counsel competency miss the mark. If we can’t recruit and retain the 

best our law schools and profession have to offer we can never hope to artificially 

mandate competency standards. 

What we need to do, with your assistance, is to shore up the foundation of our 

criminal justice system to ensure that attorneys who participate in the system receive the training and compensation necessary to be able to stay in the system without compromising choices of getting married or starting a family. 

The Federal Government cannot, and is not expected to, pay the salaries of local 

prosecutors and public defenders. But there is something you can do that would 

serve as a powerful incentive for many to stay in the state criminal justice system. 

A study done of the student loan indebtedness of assistant district attorneys in 

New York (nine separate offices) found that 70% of them have over $50,000 of loan 

indebtedness while nearly 20% of them owe in excess of $100,000 on student loans. 

The result of these dire financial forces is that, according to the BJS report, over 1⁄3 of prosecutor offices report difficulty with recruiting and retaining staff lawyers. 

Another report in the March 21, 2001 New York Law Journal states that in both 

Queens and Brooklyn, about 2⁄3 of the assistant district attorneys hired between 

1992 and 1996 had already left the prosecutor’s offices. 

This should not be news to you. The Congress has considered the concept of student loan forgiveness in several forms in recent years.

15

• Federal agencies had been authorized to pay student loans for attorneys for 

several years but the programs are just now being funded because of problems 

retaining attorneys

• To retain military attorneys a ‘‘bonus’’ is being paid after about 10 years of 

service

• In a bill before you now, to reauthorize the federal court system, there is a 

provision for loan forgiveness for federal public defenders

Bottom line—we cannot compete with the private sector in recruiting and retaining attorneys. When we have continual turnover it impacts on our ability to serve 

justice. It adversely affects our entire system, from our most junior prosecutor, or 

public defender, to our supervisory attorneys and division chiefs. 

I would urge that the Congress examine ways to provide student loan forgiveness 

as a means of allowing us to recruit and retain the ‘‘best and the brightest’’ in both 

prosecutor and public defender offices. 

In addition to providing incentives to young public defenders and prosecutors to 

stick with their chosen careers, I would suggest that ensuring that adequate training is available will further enhance the ‘‘competency’’ of the system. Congress can 

best help by providing opportunities for training, including ethics training, at the 

state level and at national facilities such as the National Advocacy Center for state 

and federal prosecutors in Columbia, South Carolina. 

If we want competent counsel for our system we need to make the effort to give 

them the opportunity to strive for excellence, not merely seek to get through the 

next case. With-holding funds from state criminal justice programs in order to enforce federally dictated counsel competency standards, only serves to set back efforts 

to strengthen our system. 

On behalf of America’s prosecutors I, and the National District Attorneys Association, urge you to do those things that we believe will truly advance our mutual goals 

of improving the criminal justice system. We look forward to continuing to work 

with you on maximizing our use of DNA technology, and ensuring that our criminal 

justice system is provided the highest degree of legal skills on both sides of counsel 

table, and in every courthouse in our nation.

Mr. SMITH. Thank you, Mr. Logli. 

Mr. Neufeld? 

STATEMENT OF PETER J. NEUFELD, CO-DIRECTOR, INNOCENCE PROJECT, BENJAMIN N. CARDOZO SCHOOL OF LAW, 

NEW YORK, NY 

Mr. NEUFELD. Mr. Chairman, thank you very much for inviting 

me here today. 

Let me begin by telling a story, because I think many of the 

points I want to make can be made more effectively through a couple of stories involving people who this law will obviously impact. 

On July 17, 1982, in Hanover County, Virginia, a rural county 

outside of Richmond, a young, white woman was attacked by a 

black man on a bicycle, and viciously beaten and raped. After the 

rape, she reported it to the county sheriff, and she told the sheriff 

that the man who did this boasted that he had himself a white 

girlfriend. 

The sheriff thought to himself who in this community was black 

and had a white girlfriend. And he only came up with one person. 

That person was Marvin Anderson. Mr. Anderson is the person sitting in the first row, in the first seat, in the gray pinstripe suite. 

And so Marvin Anderson was approached. But unfortunately, 

Mr. Anderson had never been arrested in his life, so there were no 

mug shots to show the victim. So the police officers went to 

Marvin’s place of employment. They asked for his employment 

identification card. They then took a half-dozen black and white 

mug shots, and the seven pictures were shown collectively to the 

victim. She identified Marvin Anderson. 

16

Marvin Anderson was then picked up, and a few minutes later 

he was put in a lineup. None of the other people in the photo array 

were put in that lineup. And again Marvin was identified, indicted, 

and charged with a count of rape in the first degree, assault in the 

first degree, and robbery in the first degree. 

He had a family to support him, the same family that’s here 

today. His mother is here, who stood by him all those years. 

But at the trial, the jury decided to believe the eyewitness testimony of this victim, who was absolutely certain about the man who 

had done this, and reject the alibi testimony from loved ones and 

family members. 

Marvin was convicted and sentenced to spend more than 100 

years in prison. 

About 6 years went by when another man by the name of Lincoln, Otis Lincoln, had pangs of conscience and came forward and 

said, ‘‘I’m the one who actually committed the crime.’’

And so, under Virginia law, a habeas hearing was held. And at 

that hearing, Mr. Otis Lincoln testified under oath that he had 

committed the rape. But the judge found him incredible and sent 

Mr. Marvin Anderson back to prison. 

Meanwhile, DNA gets invented and Marvin Anderson wants 

DNA tests. But he’s told that the PERK kit, the rape kit that was 

collected, the evidence from that victim on the night of the rape, 

had long ago been destroyed. And so everybody who attempted to 

get that evidence failed. He was told that by the clerks, by the 

prosecutors, and by the police. And none of them were lying. 

He then approached us at the Innocence Project, and we worked 

on the case for a few years when, all of a sudden, the head of the 

Virginia State Crime Laboratory called me up and said, ‘‘You’ll 

never guess what happened.’’ It turned out that the criminalist who 

had done the initial serology work back in the early 1980’s, when 

this case had occurred, had violated the rules. And instead of returning the evidence to the kit, so it could go back to the police department and be destroyed, she illegally Scotch-taped it her laboratory notebook, writing down what each piece of cotton stood for. 

Well, fortunately, the head of the laboratory found this, and we 

wanted to do DNA testing. We went to the Commonwealth attorney, and he said, ‘‘Great, let’s go ahead and do the testing.’’ So testing was about to go forward when the attorney general said, ‘‘No 

way. We’re not going to have testing. And the reason we’re not 

going to have testing is because, in Virginia, we only have testing 

if a judge orders it.’’ But a judge couldn’t order testing in Virginia 

because there was a 21-day rule, which prevented you from going 

back into court with newly discovered evidence. 

But fortunately, even though it was overruled by the attorney 

general, the State of Virginia recently enacted a statute, much like 

the one that you folks are considering here today. And they enacted 

a statute which gave Marvin Anderson the right to have DNA testing. 

So we went back into court. The judge ordered testing. And sure 

enough, Marvin Anderson was excluded. 

He was not only excluded, but they then took the profile of that 

evidence and they ran it through the Virginia convicted offender 

17

DNA databank. And guess what? It matched Otis Lincoln, the 

same man who had confessed in open court back in 1988. 

Today, Marvin Anderson is here in this building, and Otis Lincoln stands indicted for that crime. Otis Lincoln, meanwhile, had 

been out, had committed other rapes, was then in prison on a terrible rape, all of which could have been avoided, obviously, if DNA 

testing had been available a long, long time ago. 

I mention the case for two reasons: one, because there are preservation provisions in this bill, which some people think are unduly 

burdensome. In the State of Virginia, where ordinarily evidence is 

kept routinely, and they have not found it unduly burdensome, in 

this particular case, it’s only through shear serendipity that this 

evidence existed and he was allowed to be exonerated. I implore 

you to pass a statute which has vigorous provisions for securing 

and preserving evidence, because, otherwise, more people like 

Marvin Anderson will be convicted. 

Secondly, we can’t simply have executives in Government decide 

arbitrarily that they don’t want testing. Only if we have a statute 

with very strong, firm language can we ensure that people like 

Marvin will get the testing. 

The second brief story I want to mention involves a fellow who 

unfortunately isn’t here today, Mr. Chairman. His name is Bruce 

Godschalk. We had invited him to come, but because he’s still suffering so much depression, having been released just 3 months ago, 

he was unable to board a plane and appear here today. 

But the reason I bring up Mr. Godschalk’s case, and I’ll be very, 

very quick, if I can, Your Honor—I’m sorry, Mr. Chairman. [Laughter.] 

I was in court this morning for 3 hours, and it was all ‘‘Your 

Honor.’’ Mr. SMITH. That will get you an extra 15 seconds. [Laughter.] 

Ms. JACKSON LEE. You said that will get him another hour, Mr. 

Chairman? [Laughter.] 

Mr. NEUFELD. The only thing I wanted to say about Mr. 

Godschalk is—it’s a case in Pennsylvania. And in that case, he 

went into court to try and get testing. And every time he went into 

court to try and get testing, and it went all the way up to the highest court in the State, they said he couldn’t get testing because he 

had confessed. And because he had confessed, it wasn’t a case 

about identification being an issue. Because he had confessed, it 

wasn’t the kind of case where actual innocence could be proven but 

could merely undermine the identification. 

So the courts never allowed it. We went into Federal court. A 

Federal judge ordered it. And guess what? The DNA testing proved 

his innocence, and he was eventually exonerated. 

And so if you have a standard which requires that people prove 

actual innocence, I can only tell you from my experience, sir, that 

I have seen too many people with the best of intentions nevertheless say, ‘‘This is not the right kind of case,’’ because it’s like Kirk 

Bloodsworth with his five eyewitnesses. It’s like Ray Krone, where 

they said that the evidence was not enough to prove actual innocence; it would just cast some doubt on the case. It took an exoneration requiring an identification from the convicted offender database to get it for him as well. 

18

Thank you. 

[The prepared statement of Mr. Neufeld follows:]

PREPARED STATEMENT OF PETER J. NEUFELD

There are now one-hundred and eight Americans who have been exonerated by 

post-conviction DNA testing. Thirteen of the exonerated had at one time been sentenced to death. Thirty-two of the exonerated were convicted of murder, and many 

of them would have almost certainly faced execution if the death penalty had been 

available in the jurisdictions where they were tried. Collectively, these 108 men 

have served 1,116 years in prison. 

The pace of post-conviction DNA exonerations has accelerated because states have 

begun to pass statutes that permit those claiming innocence a chance to gain their 

freedom. In 1993 there were three DNA exonerations. In 2000 there were sixteen; 

and last year alone—27 post conviction DNA exonerations. Thirty-five law schools 

have started a network of ‘‘innocence projects’’ on shoe string budgets to prevent, 

as best they can, these DNA statutes from becoming unfunded, unrealized mandates. There can be no doubt that the number of wrongly convicted freed by DNA 

testing would dramatically increase if the post-conviction DNA legislation were 

passed by this Congress—the number of exonerations would at least double within 

five years—just as apprehension of the real perpetrators of these crimes through 

DNA databank ‘‘hits’’ would impressively proliferate. This is a ‘‘win-win’’ proposition 

for law enforcement, innocents who rot in America’s prisons and on death row, for 

crime victims, for families of all involved, and for anyone who believes in justice. 

Accordingly, we who toil in the trenches trying to harness the enormous power 

of this technology for the public good are grateful to Congressmen Bill Delahunt and 

Ray LaHood for authoring the ‘‘Innocence Protection Act’’ and for using their extraordinary efforts to secure co-sponsorship by a majority of the House of Representatives, including members from both parties with positions in favor of and opposed 

to capital punishment. 

DNA testing is not a panacea for what ails the administration of the death penalty in America or the rest of the criminal justice system. The vast majority (probably 80 percent) of felony cases do not involve biological evidence that can be subjected to DNA testing. DNA technology is no substitute for competent counsel, and 

nothing guarantees the conviction of the innocent more than incompetent, illtrained, or ineffective defense counsel. That is why the counsel provisions of the legislation before you are so critical. But it would be a terrible mistake to overlook the 

unique importance of these post-conviction DNA exoneration cases. They have created a great ‘‘learning moment’’ in the history of our criminal justice system and 

surely constitute the most remarkable and instructive data set criminal justice researchers have ever possessed. It permits us to identify as never before the causes 

of wrongful convictions and their remedies for the good of the entire system. 

In our book, Actual Innocence (Scheck, Neufeld, Dwyer, Doubleday 2000), we took 

a first step in this direction, but the eighty-five recommendations recently outlined 

by Governor Ryan’s Commission on Capital Punishment, based on a study of wrongful capital convictions in Illinois, take the agenda of ‘‘innocence reforms’’ much further, and help create a blueprint, within the criminal justice system, for a new kind 

of civil rights movement that benefits both the accused and the victims. Every time 

an innocent person is arrested, convicted or sent to death row, the real offender is 

at large, free to commit more crimes. There are no better examples of how the legislation you are considering today will produce these benefits than the cases of 

Marvin Anderson and Bruce Godschalk, both of whom are with me today. 

MARVIN ANDERSON: 

On July 17, 1982, a young white Hanover County, Virginia woman was brutally 

raped by a black man on a bicycle. She immediately notified the police. Evidence 

including the abandoned bicycle was recovered near the scene. She was taken to the 

hospital, and a physical evidence recovery [′′PERK′′] kit was prepared. Swabbings 

of biological evidence were collected from the relevant parts of the victim’s anatomy. 

After the victim reported the rape, a police officer seized on Marvin Anderson as 

a suspect, solely because the perpetrator had apparently told the victim that he was 

having a relationship with a white girl, and the investigating officer knew that Mr. 

Anderson, a young black man, ‘‘was in a situation where he was with a white girl 

living, married, or what have you.’’

The victim was presented with a photo spread that included Mr. Anderson’s picture. Since Mr. Anderson had never in his life been arrested, the police lacked a 

mug shot to show the victim. Instead, the officer visited Mr. Anderson’s place of employment and secured from his boss an employment identification card with photo. 

19

Thus, the victim was shown a photo spread which contained several mug shots 

which, on their face, looked completely different from the one color employment 

identification card with ‘‘some type of employee number on the face of it.’’

The victim selected the Anderson employment card as that of her assailant. Within an hour of the photo spread, she was asked to identify her assailant from a physical lineup. The lineup, however, included none of the individuals whose photos had 

been in the photo spread, other than Mr. Anderson, and again she identified Mr. 

Anderson. 

At Mr. Anderson’s trial, which lasted a few hours and was held before an allwhite jury, the victim again identified him as her assailant. The serologist for the 

Commonwealth testified that she had performed blood typing tests on portions of 

the swabs containing a mixture of sperm from the rapist and vaginal secretions 

from the victim. Her testing, unfortunately, was unable to ascertain the ABO blood 

type of the sperm. Thus, the test failed to exclude Mr. Anderson as the source of 

the semen. 

Mr. Anderson’s trial counsel called several witnesses, including Mr. Anderson’s 

mother, who testified that Mr. Anderson was elsewhere at the time of the rape. Unfortunately for Mr. Anderson, the alibi was discounted and Ms. Gardner’s in-court 

identification was accepted as reliable. Marvin Anderson was convicted, and sentenced to more than 200 years imprisonment. His appeal was denied, and he entered prison in 1984. 

Mr. Anderson sought post-conviction relief, and in an evidentiary hearing before 

the Circuit Court of Hanover County on August 29, 1988, John Otis Lincoln admitted under oath that he, rather than Mr. Anderson, had robbed and raped the victim. 

Unfortunately for Mr. Anderson, the court deemed his testimony unreliable and denied the habeas petition. Indeed, all of Marvin Anderson’s requests for post-conviction relief were denied on both the state and federal levels. 

As a general rule, once the Virginia Bureau of Forensic Science completes its serology testing, the evidence is returned to the Perk kit and the Perk kit returned 

to the agency that submitted it. But in this case, the serologist of the state’s Bureau 

of Forensic Science violated the lab policy and, instead, taped the unused samples 

of biological body fluid material from the Perk kit to one of her worksheets contained in the case folder for this case, with appropriate identification markings. The 

case folder eventually found its way to the archives where it sat unnoticed for almost two decades. 

In the years since his conviction, after DNA testing became widely available, Mr. 

Anderson sought to prove his innocence of the crime by subjecting to DNA analysis 

the remaining samples collected in the PERK kit. However, neither Mr. Anderson’s 

counsel nor the Commonwealth Attorney was aware that the critical evidence had 

been taped to the forensic examiner’s worksheet and stored in the case file. The 

PERK kit itself had, in fact, been destroyed sometime in the late 1980’s. Thus, all 

of Mr. Anderson’s efforts came to naught when the various law enforcement agencies and court clerks reported that the Perk kit had been destroyed and that there 

was no evidence to test. 

However, last year, Dr. Paul Ferrara, Director of the Division of Forensic Science, 

advised me that certain physical evidence from the case—including sperm and 

semen samples recovered from the victim’s body—had been located in the twenty 

year old case file at the Division’s archives. The Commonwealth Attorney for Hanover County consented to DNA testing but was overruled by representatives of the 

Attorney General of Virginia who took the position that without a judge ordering 

testing, no testing could be conducted. 

Fortunately for Marvin Anderson, Virginia passed a post-conviction DNA access 

bill last year. The court granted an application for testing pursuant to the new Virginia statute. Just before Christmas, we learned that Marvin Anderson had been 

cleared by the DNA testing and that, after running the new evidence profile against 

the state’s convicted offender database, they had gotten a ‘‘hit.’’ Otis Lincoln, who 

was serving a sentence and was about to be paroled on another rape conviction, was 

the match. Last month Lincoln was indicted by a Hanover County grand jury. 

But we are in a race against time and every day counts. In seventy-five percent 

of the cases where the Innocence Project has determined that a DNA test on some 

piece of biological evidence would be determinative of guilt or innocence, the evidence is reported either lost or destroyed, and without laws specifically to prevent 

it, precious DNA evidence is surely being thrown away, wittingly or unwittingly, 

every day. For Marvin Anderson, it was pure serendipity that the critical evidence 

was preserved and discovered. That is why the preservation provisions of the Innocence Protection Act must be passed. 

20

BRUCE GODSCHALK: 

In the summer of 1986, less than two months apart, two women were raped in 

King of Prussia, Montgomery County. The rapes were committed in the same housing complex and, given the descriptions and circumstances, appeared to have been 

committed by the same man. 

Initially the two women were unable to make an identification. In December, following the media broadcast of a composite drawing prepared with the assistance of 

one of the victims, an anonymous caller claimed that the sketch resembled Bruce 

Godschalk. Although Bruce had no prior record for sexual assault, his photo was in 

the police files for a marijuana possession charge. On January 5, 1987, the mug 

shot, as part of an array, was shown to one of the victims who, after studying it 

for over an hour, identified Bruce as the assailant. The second victim could not 

make an identification. 

On January 13, 1987, detectives visited Bruce at his home and asked him to accompany them to the police station. After a few hours of interrogation, the detectives claimed that Bruce confessed to both crimes. The full confession was tape recorded, although the hours of interrogation that preceded it were not. Indeed, the 

detectives asserted that Mr. Godschalk had provided information known only to the 

rapist. Mr. Godschalk recanted this ‘‘confession’’ and asserted that the detectives 

had threatened him and had provided the ‘‘inside’’ information to make his confession appear more credible. His motion to suppress the confession was denied. 

In May of 1987, Mr. Godschalk was convicted of both rapes and sentenced to 10 

to 20 years in prison. The police had recovered semen samples from both rapes but, 

in 1987, did not have the DNA technology to test this evidence. Mr. Godschalk’s conviction was affirmed on appeal. 

In 1995, Mr. Godschalk requested the District Attorney to provide the DNA material to the defense for testing. He offered to pay all costs and rightly asserted that 

the DA had no possible interest in not providing the material. The DA refused. Mr. 

Godschalk then sought judicial intervention. He appealed the trial court’s denial of 

access to DNA testing through the appellate courts. The state courts denied him the 

material on the ground that he had ‘‘confessed’’ to the crime. The state’s case was 

very strong and, thus, this was not a conviction based on possible mistaken identification. 

In 1997, Bruce contacted the Innocence Project and requested representation. For 

the next two and one-half years, students and faculty at the project attempted, unsuccessfully, to get the prosecutor to consent to testing. Since all efforts, including 

appeals to the state courts, had failed, we joined with University of Pennsylvania 

School of Law Professor David Rudovsky to file suit in federal court to force release 

of the DNA. 

In 2001, Federal Senior District Judge Charles R. Weiner ordered the DA to release the DNA. Upon testing, Mr. Godschalk was cleared and has just been released 

from prison after serving fifteen years for crimes he did not commit. 

Judge Weiner relied in part on the Virginia Federal District Court decision in 

Harvey v. Horan, which was the first federal court decision in the country to recognize a constitutional right to post-conviction DNA testing secured through a civil 

rights lawsuit. Just last week, Judge Wilkinson of the 4th Circuit Court of Appeals 

reversed the District court decision and ruled that people like Bruce Godschalk do 

not have a constitutional right to DNA testing. Had Judge Weiner adopted the 

thinking of Judge Wilkinson, then Bruce Godschalk, a factually innocent man, 

would never have had the opportunity to demonstrate his innocence. Judge 

Wilkinson commented that convicted inmates should certainly have access to DNA 

testing and in fact encouraged Congress, noting the pendency of this legislation, to 

grant access. Without the firm language of the Innocence Protection Act, most 

courts faced with a fact pattern like Bruce’s might do what they did in Pennsylvania—deny testing. Unless Congress takes action and passes the Innocence Protection Act, hundreds of other factually innocent men, currently languishing in prison 

or awaiting execution, will never get the chance to prove their innocence, nor the 

state to identify the real perpetrators. 

Thank you.

Mr. SMITH. Thank you, Mr. Neufeld. Appreciate that. 

Mr. Graci? 

21

STATEMENT OF ROBERT A. GRACI, ASSISTANT EXECUTIVE 

DEPUTY ATTORNEY GENERAL OF PENNSYLVANIA, HARRISBURG, PA 

Mr. GRACI. Thank you, Chairman Smith and Members of the 

Subcommittee on Crime, Terrorism, and Homeland Security. I 

would like to thank you for giving me the opportunity to comment 

on H.R. 912. 

At the outset, let me say that, to a great extent, the goals of this 

bill are laudable. My concerns about the bill, however, have little 

to do with its subject matter. They are, instead, concerns of federalism and the manner in which compliance with some of the provisions of these bills is forced upon the several States, the ‘‘carrot 

and stick’’ referred to by Chairman Leahy at the Senate Judiciary 

Committee hearing held last year on the Senate version of H.R. 

912. 

This bill largely addresses two issues: post-conviction DNA testing and counsel standards in capital cases. 

As to the former, the bill establishes procedures for Federal cases 

and imposes obligations on the Federal courts and Federal prosecutors and then imposes those same obligations on State courts and 

State prosecutors and inflicts penalties for noncompliance in a variety of substantial ways. 

As to the latter, the counsel standards provision, the bill establishes national standards for counsel appointed to represent indigent capital defendants and penalizes the States for any failure to 

comply with these extra-constitutional, constitutionally mandated 

standards. 

As I said at the outset of my remarks, my concerns are those of 

federalism and the extent to which this Federal legislation intrudes 

upon the responsibility of the States to define crimes, their punishment, and the procedures to be followed in their courts. 

These same concerns were voiced in 2000 when 30 of the States’

attorneys general signed a joint letter to then-Senate Judiciary 

Chairman Hatch and then-Ranking Member Leahy in opposing S. 

2073, the predecessor of S. 486 and H.R. 912. 

Some of the concerns raised in that letter have been address by 

the Congress, and for that you should be commended. However, 

many of the objections raised to S. 2073 still persist in 912. 

The letter by the attorneys general pointed out that many States 

already had adopted post-conviction DNA testing statutes and procedures, and others were actively considering them. And that process continues today. It’s continuing in my State. 

Pennsylvania’s General Assembly is now considering a post-conviction DNA bill, drafted in large measure by my staff and with Attorney General Fisher’s public support. In my view, that bill goes 

beyond the provisions of H.R. 912. 

In light of these ongoing developments, the attorneys general 

urged the Congress not to preemptively short-circuit this process 

with legislation that imposes mandatory obligations on the States. 

The States are addressing these issues with solutions based on 

their views of them and with consideration of how best to deal with 

them in the context of their respective criminal justice systems. 

This is consistent with the view that the States serve as laboratories for testing solutions to novel legal problems. If Congress 

22

mandates a particular approach on this subject, experimentation by 

the States in attempting to deal with these problems will be stifled 

under pains of substantial loss of revenues generally unconnected 

to the obligations placed on the States. Motivated by those concerns 

in 2000, 30 attorneys general opposed any efforts by Congress to 

circumvent that process and prematurely intrude on it. 

Let me explain those concerns. Section 103 of H.R. 912 requires 

a State applying for specified grants to certify that it will make 

post-conviction testing available to any person convicted of a State 

crime in a manner consistent with the newly minted sections of the 

Federal law contained in section 102. It will be up to a Federal bureaucrat to determine whether the applicant State’s procedures are 

consistent with these Federal provisions. In this regard, I think 

that the bill being considered in Pennsylvania would provide relief 

based on positive DNA testing in circumstances over and above 

those which would be available to Federal convicts under H.R. 912. 

However, some might think that the requirements for post-conviction DNA motion under Pennsylvania’s proposed statute, which 

include an assertion of actual innocence not found in H.R. 912, 

would make that law inconsistent with H.R. 912. To avoid losing 

important Federal dollars, States would be disinclined to experiment and would simply adopt whatever Congress dictates. 

On the merits of H.R. 912, I first observe that any bill on this 

subject should recognize that DNA is only relevant when the perpetrator’s identity was an issue at trial. And I respectfully disagree 

with my colleague to the right. 

Senate bill 800 and Senate bill 2441 recognize this and attempt 

to take appropriate precautions to ward off frivolous delay-effecting 

claims. H.R. 912 does not. 

Moreover, H.R. 912 generally requires preservation of evidence 

for extremely long periods of time, which will have a tremendous 

financial impact on the local police and prosecutorial authorities, 

who will have to store all of this material for what could be lengthy 

periods of time beyond incarceration. 

In concluding my remarks on the post-conviction DNA provisions 

of H.R. 912, I echo the sentiments of my boss, Attorney General 

Mike Fisher of Pennsylvania: Any such statute must, at a minimum, establish a procedure by which the convict may request that 

DNA testing be performed on physical evidence left at the crime 

scene where there is a reasonable question as to the convict’s identity as the perpetrator. Second, it must set standards within which 

testing may be administered in order to guarantee the integrity of 

the test results. And last, it must ensure that testing is only ordered where the result of the test has the potential to produce new, 

materially relevant evidence of the convict’s assertion of innocence. 

H.R. 912 fails this test in two important regards. The perpetrator’s identity is not specifically delineated as a factor to be considered in determining if relief is appropriate, and the bill requires no 

assertion of innocence. What has generally motivated the discussion of post-conviction DNA testing is concern with actual, factual 

innocence and the availability of a procedure which would establish 

that innocence. That was the context in which the subject was first 

discussed. 

Mr. Chairman, if I can continue for just an extra moment? 

23

Mr. SMITH. Mr. Graci, you’ll need to conclude your remarks pretty soon. 

Mr. GRACI. Very good, sir. 

In Pennsylvania, it was our office, the attorney general’s office, 

and the State’s prosecutors who urged expansion of any post-conviction DNA testing bill to include persons serving terms of imprisonment and not just those sentenced to death. We were and continue to be unable to rationalize the continued incarceration of a 

person who would be proven factually innocent by post-conviction 

DNA testing of a rape, for instance, any more than we could allow 

the execution of a death-sentenced convict who would be exonerated by such testing. H.R. 912, however, appears to have jettisoned 

any link to actual innocence and has, accordingly, lost its theoretical underpinnings. 

Mr. Chairman, I’ll rely on my written comments as to the counsel provisions in the bill, which we also think are extremely onerous to the States. And I’ll respond to any questions on that matter 

as time permits. 

[The prepared statement of Mr. Graci follows:]

PREPARED STATEMENT OF ROBERT A. GRACI

Chairman Smith and members of the Judiciary Committee Subcommittee on 

Crime, Terrorism and Homeland Security. 

My name is Bob Graci. I am the Assistant Executive Deputy Attorney General 

for Law and Appeals of the Criminal Law Division of the Office of Attorney General 

of Pennsylvania. On behalf of Attorney General Mike Fisher, I would like to thank 

you for giving me the opportunity to comment on H.R. 912 , the Innocence Protection Act of 2001. He would be here himself, but he is hosting the Annual Summer 

Meeting of the National Association of Attorneys General in Fayette County, Pennsylvania, and is currently at an executive board meeting. 

At the outset, let me say that to a great extent, the goals of this bill are laudable. 

At General Fisher’s direction, I have been involved in the drafting of Pennsylvania’s 

post-conviction DNA testing procedures bill which has cleared the State Senate and 

is awaiting action in our House of Representatives. Though I am a prosecutor and 

have been for most of my career, I have also been involved over the years in continuing legal education efforts, including those involving capital defense representation and have co-authored a treatise—‘‘Prosecution of a Death Penalty Case in 

Pennsylvania’’—which is used by prosecutors, defense counsel and judges throughout the country. 

My concerns about this bill have little to do with its subject matter. They are instead concerns of federalism and the manner in which compliance with some of the 

provisions of these bills is forced upon the several states—the ‘‘carrot and stick’’ referred to by Chairman Leahy of the Senate Judiciary Committee at the outset of 

the hearing held on June 27, 2001, on S.486, the Senate version of H.R. 912. 

H.R. 912 largely addresses two very serious issues: post-conviction DNA testing 

and counsel standards in capital cases. As to the former, the bill establishes procedures for federal cases and impose obligations on the federal courts and federal 

prosecutors. It imposes those same standards on State courts and State prosecutors 

and inflicts penalties for non-compliance in a variety of substantial ways. As to the 

latter, the bill seeks to establish national standards for counsel appointed to represent indigent capital defendants and penalizes the States for any failure to comply 

with these extra-constitutional, congressionally-mandated standards. 

Obviously, how the Congress chooses to direct the federal courts and federal prosecutors is of little or no concern to the States. As I said at the outset, my concerns 

are those of federalism and the extent to which any federal legislation intrudes on 

the responsibility of the States to define crimes, their punishment and the procedures to be followed in their courts. These same concerns were voiced in 2000 when 

30 of the States’ Attorneys General signed a joint letter to then-Senate Judiciary 

Chairman Hatch and then-Ranking Member Leahy in opposing S.2073, the predecessor of S.486 and H.R. 912. 

To be sure, some of the concerns raised in that letter by the Attorneys General 

were addressed by the Congress in enacting legislation to authorize grant funds for 

24

States such as the DNA Analysis Backlog Elimination Grants (Public Law 106–546) 

and the Paul Coverdell National Forensic Sciences Improvement Grants (Public Law 

106–561). However, many of the objections raised to S.2073 still persist in S.486 and 

H.R. 912. 

The letter from the Attorneys General pointed out that many States already had 

adopted post-conviction DNA testing statutes and procedures and that others were 

actively considering them. That process continues today. As I noted previously, the 

Pennsylvania General Assembly is now considering a post-conviction DNA testing 

bill, drafted in large measure by my staff and with Attorney General Fisher’s public 

support. That bill goes far beyond the provisions of the bills currently pending in 

the Congress, including H.R. 912. In light of these on-going developments, the Attorneys General urged the Congress not to ‘‘preemptively short-circuit this process with 

legislation that imposes mandatory obligations on the [S]tates.’’ I reiterate that request. The States are addressing these issues with solutions based on their views 

of them and with consideration of how best to deal with them in the contexts of 

their respective systems of criminal justice. This point, of course, is consistent with 

the view, long recognized by the United States Supreme Court, that the States serve 

as laboratories for testing solutions to novel legal problems. If Congress speaks on 

the subjects addressed in the pending legislation (assuming it has the constitutional 

authority to do so which is seriously questioned in some quarters), experimentation 

by the States in attempting to deal with these problems (which are, essentially, of 

local, not national concern) will be stifled under pains of substantial loss of revenues 

generally unconnected to the obligations placed on the States. Motivated by these 

concerns in 2000, 30 Attorneys General opposed any efforts by Congress to circumvent that process and prematurely intrude on it. These same concerns underscore my comments today. 

Allow me the opportunity to explain my concern and those of many of my colleagues. Section 103 of H.R. 912 requires a State applying for specified grants to 

‘‘certify that it will make post-conviction DNA testing available to any person convicted of a State crime in a manner consistent with’’ the newly-minted sections of 

federal law contained in section 102 of the bill setting forth procedures for federal 

convicts seeking relief from federal crimes in the federal courts based on DNA evidence. Section 103 also requires the State to ‘‘certify that it will preserve all evidence that was secured in relation to the investigation or prosecution of a State 

crime, and that could be subjected to DNA testing’’ for the same periods of time as 

set forth in section 102 as applicable to the federal DNA testing procedures. Apparently, it will be up to a federal bureaucrat to determine whether the applicant 

State’s procedures are ‘‘consistent with’’ the federal provisions. In this regard, I 

think the bill being considered in Pennsylvania would provide relief based on positive DNA testing in circumstances over and above those that will be available to 

federal convicts under H.R. 912. However, some might think that the requirements 

for a DNA motion under Pennsylvania’s proposed statute which include an assertion 

of actual innocence not found in H.R. 912 (which we think is critically important 

in the post-conviction DNA context and which is found in S. 2441 recently introduced by Senator Specter) would make that law, if enacted, inconsistent with H.R. 

912. To avoid losing important federal dollars, States would be disinclined to experiment and would simply adopt whatever the Congress dictates. That is clearly not 

what the Founders envisioned of our federal system. 

With this view in mind, I will address concerns with the merits of H.R. 912. First, 

the legislative findings on which it is based are suspect. If persons have been released from confinement because of newly-available DNA evidence or otherwise, it 

simply shows that the corrective processes of the States are working as intended. 

Surely State courts have ordered DNA testing in the post-conviction setting and, 

when warranted, afforded relief. That certainly does not demonstrate widespread, 

systemic flaws in the system that handles thousands upon thousands of cases every 

year. Instead, it shows that meaningful safeguards do exist and provide relief, when 

appropriate. 

Any bill on this subject should recognize that DNA evidence is only relevant 

where the perpetrator’s identity was an issue at trial. S.800 and S. 2441 recognize 

this and attempt to take appropriate precautions to ward off frivolous, delay-effecting claims. H.R. 912 does not. Moreover, H.R. 912 generally requires preservation 

of evidence for so long as the convict ‘‘remains subject to incarceration.’’ As written, 

this would include any period of time during which the offender is on probation or 

parole for the underlying conviction because he or she would still be ‘‘subject to incarceration.’’ Such a requirement will have a tremendous financial impact on the 

local police and prosecutorial authorities who will have to store all of this material 

for what could be extremely lengthy periods of time beyond conviction. Both S.800 

25

and S. 2441 would only require preservation while a defendant is ‘‘serving a term 

of imprisonment’’ and for a finite time. 

The Fourteenth Amendment enforcement mechanism found offensive to the 30 

States Attorneys General in S.2073 remains in H.R. 912, though its reach has been 

limited to capital cases. Like its predecessor, H.R. 912 places no limit on the number of times evidence may be re-tested and invites a battle of so-called ‘‘experts’’

over whether ‘‘the type of testing . . . now requested . . . may resolve an issue not 

resolved by previous testing.’’ Indeed, this provision is even broader than its 2000 

counterpart. And can anyone imagine the developer of a type of DNA testing who 

would not contend that his or her test will resolve an issue not previously resolved? 

In concluding my remarks on the DNA portions of H.R. 912 I will echo the sentiments of Attorney General Fisher. Any post-conviction DNA testing statute must, 

at a minimum, do the following:

• establish a procedure by which a convicted defendant may request that DNA 

testing be performed on physical evidence left at the crime scene where there 

is a reasonable question as to the defendant’s identity as the perpetrator;

• set standards and parameters within which testing may be administered in 

order to guarantee the integrity of the test results; and

• ensure that testing is only ordered where the result of the test has the potential to produce new, materially relevant evidence of the convicted defendant’s 

assertion of innocence.

H.R. 912 fails this test in at least two regards. The perpetrator’s identity is not 

specifically delineated as a factor to be considered in determining if relief is appropriate and the bill requires no assertion of innocence. What has generally motivated 

the discussion of post-conviction DNA testing is concern for actual, factual innocence 

and the availability of a procedure which could establish true innocence. When 

speaking of actual innocence, as the United States Supreme Court recognized in 

Sawyer v. Whitley, 505 U.S. 333 (1992), we are generally speaking of the 

‘‘prototypical example’’ where the State has convicted the wrong person of the crime. 

Id. at 340. That was the context in which this subject was first discussed: the possibility that a person who had not committed the offense could be executed. Everyone 

agrees that, if technology exists that would establish a convicted defendant’s actual 

innocence, that defendant should be able to obtain its benefit. In Pennsylvania, it 

was General Fisher’s office and the State’s prosecutors who urged expansion of any 

post-conviction DNA testing bill to include persons serving terms of imprisonment 

and not just those sentenced to death. We were and continue to be unable to rationalize the continued incarceration of a person who would be proven factually innocent 

by postconviction DNA testing of a rape, for instance, any more than we could allow 

the execution of a death sentenced prisoner who would be exonerated by such testing. And there is no opposition to an expansion of these protections to claims of innocence of crimes used to enhance sentences currently being served, including those 

used to seek a sentence of death. H.R. 912, however, appears to have jettisoned any 

link to actual innocence, unlike S. 800 and S. 2441. Accordingly, it has lost its theoretical underpinning. 

The second major component of H.R. 912 is found at Title II and purports to be 

for the purpose of ‘‘ensuring competent legal services in capital cases.’’ Like its predecessor S.2073, H.R. 912 contains onerous legal representation requirements in 

death penalty cases. Failure to comply with the requirements for what the bills calls 

‘‘an effective system for providing adequate representation’’ in capital cases, including investigative and expert services, may result in obligatory reductions in grants 

having nothing to do with capital cases or capital representation, including violent 

offender incarceration grants and truth-in-sentencing incentive grants. Surprisingly, 

unlike S.800, H.R. 912 does not condition the newly-minted ‘‘Capital Defense Incentive Grants’’ and ‘‘Capital Defense Resource Grants,’’ which are both clearly related 

to capital representation to any particular level of compliance with the new counsel 

standards provision. 

Though H.R. 912 has substituted what appears to be a broad-based commission 

for the federal bureaucrat who was to establish the standards under S.2073, the system to be devised is fraught with potential pitfalls. In this regard, I echo the sentiments of Alabama Attorney General Pryor who testified before the Senate Judiciary 

Committee on S. 486, the Senate version of H.R. 912. This commission, if populated 

primarily by those opposed to the death penalty, could hamstring capital prosecutions by setting standards that are virtually impossible to meet and refusing to appoint counsel, thereby achieving a de facto abolition of the death penalty. Moreover, 

experience in capital cases shows those of us who labor in those vineyards that establishment of such standards will neither eliminate nor substantially reduce claims 

26

of ineffective assistance of counsel which are raised in virtually all capital cases and 

successful in but a few. 

I note in passing that if the Pennsylvania General Assembly directly tried to impose in Pennsylvania the counsel standards and appointment system that H.R. 912 

will impose, the State Supreme Court would, I believe, declare the action unconstitutional as violative of the separation of powers doctrine embodied in our State Constitution. Such legislative action would intrude on the Pennsylvania Supreme 

Court’s constitutional, if not inherent, power to regulate the practice of law and to 

adopt rules of procedure for the State courts of Pennsylvania. Requiring an ‘‘independent appointing authority’’ (which presumably would be independent of the 

courts) to appoint counsel having specified ‘‘qualifications’’ would run counter to 

what has traditionally, in Pennsylvania at least, been a function of the courts. I am 

not here to argue about what I believe will result in a diminution of power historically reserved to the State courts (which the State courts may argue on their own), 

but, instead, to point out that this is just another example of how H.R. 912 is an 

affront to our federalism, the overriding concern of my remarks. 

Returning to the specifics of H.R. 912, even if a State should comply with the 

standards developed by the National Commission, the bill adds an additional layer 

of litigation to every State capital case tried a year or more after the commission 

formulated its standards. In every one of those cases, it would be up to the whim 

of the federal judge to whom the federal habeas corpus challenge was assigned to 

determine if the convicted and death-sentenced murderer was afforded the counsel, 

investigative, expert and support services required by the commission’s standards. 

Though the bill is less than clear in this regard, the burden would presumably fall 

to the State to demonstrate compliance. This determination would have to be made 

in every federal habeas case and would have to be made in regard to every level 

of the proceedings, resulting in the imposition and affirmance of a sentence of death 

from pretrial motions through trial and direct appeal to post-conviction proceedings 

and appeal therefrom. If the State did not carry its burden, it would lose the presumption of correctness of State court factual findings on the federal constitutional 

issues raised by the convicted murderer in challenging the conviction in State court. 

Moreover, the federal judge would be permitted to examine claims which the State 

court was precluded from addressing because of violations by the convicted murderer of the State’s procedural rules. 

This provision is problematic for another reason, as well: its uneven effect on habeas corpus jurisprudence. The federal courts will apply the bar and presumption 

in all non-capital cases but refuse to apply them in some capital cases. They will 

always apply in cases from non-death penalty States but apply only sometimes in 

cases from death penalty States. Both of these results are a great affront to the 

States and constitute punishment for a non-existent problem. 

On a point not related to either DNA testing or counsel standards, it must be 

noted that section 305 of H.R. 912 intrudes on the right of each State to define 

crimes, their punishments and the procedures to be followed in its courts. That section would require judges in capital cases to provide specific instructions on ‘‘all 

statutorily authorized sentencing options.’’ The bill goes beyond that which is required by the Constitution as interpreted by the Supreme Court in Simmons v. 

South Carolina, 512 U.S. 154 (1994), and Kelly v. South Carolina, 534 U.S. 246 

(2002). It conditions grants under the Violent Crime Control and Law Enforcement 

Act of 1994 on assurances that an instruction not required by the Constitution is 

given whenever requested by a capital defendant. Like most of what I have addressed this afternoon, this, too, is an affront to State sovereignty in that it requires 

State court proceedings to be conducted in conformity with congressional mandate. 

In closing, I note that more than a decade ago the National Association of Attorneys General, without dissent, resolved to oppose any legislation that would, among 

other things, ‘‘undermine or weaken the procedural default doctrine or broaden any 

exception to that doctrine,’’ that would ‘‘create new requirements concerning the experience, competency, or performance of counsel beyond those required by the 

United States Constitution, as interpreted in Strickland v. Washington, 466 U.S. 

668 (1984),’’ or that would ‘‘expand the grounds on which habeas corpus relief may 

be granted.’’

I was in accord with those views then and remain so now. H.R. 912 will undermine procedural default and eliminate the presumption of correctness accorded to 

State court fact-finding in capital cases. It will impose counsel requirements on the 

States far beyond that which the Constitution requires. It will expand federal habeas corpus relief by allowing new claims and by allowing litigation of claims procedurally barred in State court and relitigation of claims already decided on the facts 

by the State courts where a federal court decides that the State system of defense 

services is deficient when measured against the requirements established by the 

27

National Commission on Capital Representation. These provisions will render nugatory finality of State court judgments and will drastically increase federal habeas 

corpus litigation of State court convictions. 

I hope these comments are helpful to the Committee.

Mr. SMITH. Thank you, Mr. Graci. 

Ms. Wilkinson? 

STATEMENT OF BETH WILKINSON, FORMER FEDERAL PROSECUTOR, OKLAHOMA CITY BOMBING CASE, WASHINGTON, 

DC 

Ms. WILKINSON. Thank you, Mr. Chairman and fellow Committee 

Members. It’s a privilege to be here today to testify in front of you 

not only from my personal experience but also as the co-chairman 

of the Constitution Project’s Death Penalty Initiative. 

As much as I support the DNA provisions of this bill, I will leave 

those issues to the expert, Mr. Neufeld, and have my comments focused only on competence of counsel. 

I come to you today with a real passion for this subject, and I 

come to that because of my personal experience. In 1995, after the 

bombing of the Murrah Building in Oklahoma City, I was asked by 

the Attorney General to participate in the prosecution of Timothy 

McVeigh and Terry Nichols. I spent 2.5 years of my career with the 

privilege of representing the United States in that case, working 

with over 700 victims and their families to prepare for trial. And 

I stood in front to the jury at the end of the McVeigh case and represented the Government when I asked for the sentence of death 

for Mr. McVeigh. So I have very personal reasons and professional 

reasons for supporting competent counsel in every capital case. 

I learned through that experience that not just prosecutors and 

defense attorneys and the public wish for competent counsel, but 

victims know that that is one of the most important things that 

protects the final verdict that they want to obtain. In every meeting that I had with victims, and we met with them approximately 

once a month during the 2 years we prepared for trial, not one victim ever asked me to make sure there’s a conviction at any price. 

What they asked us over and over and over again was to make 

sure that the defendant was the actual perpetrator of the crime 

and that he was convicted fairly and justly so that there would be 

no issues on appeal, because what victims in these type of horrible 

crimes fear the most is that the litigation will go on forever, that 

there will be appeal after appeal, there’ll be a new trial, and they’ll 

never be able to have finality in the verdict that the original jury 

returns. 

That’s the reason that I support the provisions in H.R. 912 for 

competency of counsel. Those of us who have participated in the 

system know that it’s beneficial for public safety, as Congressman 

Delahunt has pointed out; for the victims; for prosecutors; and for 

defendants to have fine, zealous counsel for a defendant facing the 

harshest sentence that our system allows. 

In the bill, some of the criticism that I’ve heard focuses on the 

federalism concerns, that the Federal Government is designating, 

in some fashion, the standards for State counsel around the country. I think this is really a red herring. We’ve seen the system work 

thus far, and unfortunately, with the 87 or so people who have 

28

been wrongly convicted and sentenced to death, those systems have 

not worked in the States. 

This bill allows an overriding central authority in each State, so 

that State public defenders or other private counsel will have minimal standards that they must meet to defend a capital defendant. 

I would like to commend specifically Congressman Coble’s State, 

North Carolina, who has just enacted provisions very similar to 

what this bill represents. And those standards don’t—or the central 

authority do not fall prey to some of the criticism that are in the 

written statements of my colleagues here at the table. 

There is fear, for example, that defense attorneys who are antideath penalty will take over these organizations and there will be 

no defendants—no capital cases go forward. That’s not what’s happened in North Carolina. In fact, it’s just helped to professionalize 

the counsel on both sides of these capital cases and ensure that the 

resources that are most important for prosecutors and defendants 

are loaded at the front-end of the system. In other words, at trial, 

when most of us, whether on the prosecution or the defense side, 

know the challenges matter most, those resources are provided to 

the defense counsel, their investigators, and the prosecutors. 

When that happens, and a verdict is returned and a death sentence is returned, there is much more of a chance and a guarantee 

for victims and for the system that that conviction will be upheld 

through the appellate process than when we withhold those resources from defense counsel and from investigators and then put 

those resources in at the backend during the appellate phase. 

I can tell you that in the McVeigh and Nichols post-conviction 

challenges, none of the appeals were successful. And in large part, 

that was because the resources were frontloaded by Judge Matsch 

and others, allowing defense counsel to thoroughly explore all of 

the allegations. 

You might recall that at the very end, before Mr. McVeigh was 

executed, there was a substantial challenge brought by the defense 

about documents allegedly withheld. And because Judge Matsch 

had allowed the defense counsel to thoroughly explore these issues, 

had provided the resources, the public believed that the conviction 

was correct. And ultimately, a new trial was denied and Mr. 

McVeigh was executed. 

But from my personal experience and my experience as the cochairman of the Constitution Project’s Death Penalty Initiative, I 

urge you to support this bill. 

[The prepared statement of Ms. Wilkinson follows:]

PREPARED STATEMENT OF BETH WILKINSON

Good afternoon, Mr. Chairman and Members of the Committee. My name is Beth 

Wilkinson. I presently serve as co-chair of the Constitution Project’s Death Penalty 

Initiative. I am here today to speak on behalf of the Committee and personally, as 

a former prosecutor, about the importance of competent counsel for defendants facing capital punishment. 

The Innocence Protection Act is an important piece of legislation that is necessary 

to ensure the fair and just administration of the death penalty. While they may disagree on the necessity or propriety of the death penalty, both proponents and opponents of the death penalty can agree that every citizen, particularly those facing 

capital punishment, should be well-represented. Unless sufficient safeguards are in 

place to ensure that every defendant receives adequate representation, we cannot 

be sure that justice is being administered fairly. As a former federal prosecutor this 

issue is of particular importance to me. 

29

For several years, I represented the government in its prosecution of Timothy 

McVeigh and Terry Nichols for the Oklahoma City bombing of the Alfred P. Murrah 

Building. In both of those cases, I saw the importance of effective defense counsel 

to the defendant, the government, and even the victims. Although all of us were 

frustrated by the challenges brought by our worthy adversaries, it was obvious that 

the ultimate convictions would be strengthened by a thorough and extensive exploration of any possible issues prior to or during the trial. The results of Mr. 

McVeigh’s and Mr. Nichols’ appeals prove that our belief was correct. None of the 

appeals were granted and the victims of the Oklahoma City bombing now benefit 

from the final convictions and sentences adjudicated by the original juries and 

judge. Nowhere is the fairness of a conviction more essential than in a capital case. 

The Innocence Protection Act has the ability to ensure that every defendant facing 

capital punishment will have competent representation. The provisions in the Act 

regarding DNA testing are also important measures to ensure the administration 

of justice, but I would like to focus my testimony on the issue of competent legal 

services. 

The competent representation of defendants facing capital punishment is essential 

for the efficient allocation of resources in criminal, and particularly capital, cases. 

Excellent representation at trial is necessary for getting at the truth and allows for 

a thorough examination of the facts at the beginning of the process. If good counsel 

thoroughly investigates and pursues a defendant’s case, a verdict for the government is likely to be upheld on appeal. This frontloading of resources, in turn, creates 

a more streamlined process and gives finality to the victims and their families who 

often fear repeated appellate challenges and new trials ordered years after the initial verdict. My personal experience has shown that a strong challenge by effective 

counsel at trial puts an end to appellate challenges in a relatively short period of 

time. This gives the victims and families comfort in knowing that justice has been 

served and allows them to go on with their lives without having to relive the horrors 

of these crimes, at additional trials. 

Competent legal representation also makes the job of a prosecutor much easier. 

It ensures that the right person is convicted and justice is served; both essential elements of our criminal justice system. It also saves time and resources by getting 

challenges resolved in the beginning of the process, rather than years later when 

evidence may have been lost and memories faded. A prosecutor has a much more 

difficult time preventing errors when defense counsel is inexperienced and incompetent. If defense counsel is incapable of properly defending a case, it hinders the 

investigation for the truth and raises the possibility that a conviction will later be 

overturned on the grounds of ineffective counsel. 

No prosecutor or victim wants to see a conviction overturned on appeal. This creates suffering for the victims and families and undermines public confidence in the 

effectiveness of the criminal justice system. Recent revelations of innocent persons 

being exonerated after spending years on death row has created questions by the 

public about how such things can occur. Only an active and thorough defense counsel who adequately represents the interests of a defendant can prevent wrongful 

convictions by investigating the facts and bringing to light the weaknesses of the 

prosecution’s case. 

Having a competent defense attorney also ensures that an appealable procedural 

error does not occur which could lead to reversal. In many instances, victims cite 

their concern about convictions being reversed on appeal for what they deem are 

‘‘procedural errors.’’ Nothing can be more devastating to a victim than another trial 

for a defendant who benefited from the ineffectiveness of his own counsel. In my 

experience victims often asked me to do whatever was necessary to ensure a fair 

and just verdict. Many victims understand the necessity of competent counsel and 

see how a good lawyer for the defendant ultimately inures to the benefit of everyone 

involved with the case. 

The National Commission to be set up by H.R. 912 will formulate national standards for a system of providing adequate representation. This measure is particularly 

important for establishing the necessary qualifications of attorneys that represent 

defendants in capital cases. Many states do not have specific guidelines for the 

qualifications of counsel, which means that often inexperienced, incompetent attorneys represent defendants facing capital punishment. This results in unreliable verdicts, which undermines public faith that the system is effective and fair. 

Although many organizations have attempted to adopt standards and guidelines, 

many states have refused to implement them. The creation of a National Commission and tying government funding to the establishment of an effective system for 

adequate representation will give states incentive to create and follow acceptable 

standards for representation. 

30

A centralized and independent appointing authority is a necessary element of the 

goal to provide competent legal representation. Requiring state systems to establish 

such an authority will ensure that across each state there is an independent body 

monitoring the quality of representation. Appointing attorneys from the centralized 

authority will enable states to weed out those attorneys who are not competent, 

making a stronger and more effective pool of representation for capital cases. No 

one wants to hear another story about capital defense counsel who was falling 

asleep or under the influence of alcohol during a trial. 

The appointing authorities can refuse to appoint attorneys who have not met the 

standards for competent representation, ensuring that similar problems will not be 

faced by future defendants. By monitoring qualifications and performance, these authorities will also be able to appoint experienced attorneys who can adequately defend a client in the beginning of the process. Creating an independent authority to 

appoint counsel will reduce concerns of appointments based on a friendship with the 

judge or incentives given to counsel to keep their costs low and spend few hours 

on a case. 

Training programs and requirements for completion of such programs in order to 

meet the necessary qualifications for representation of capital cases will further assist the goal of providing competent representation. Providing training will help ensure that those who represent defendants in capital cases are experienced and 

knowledgeable, making their representation much more effective. Further, as the 

law changes over time, attorneys need to be re-educated and kept abreast of those 

changes in order to be effective advocates. 

The Innocence Protection Act, by creating an independent authority to assist in 

the training of attorneys, furthers this objective. It will ensure that minimum standards for training are met so that no defendant in a capital case will need to worry 

that his counsel does not adequately know the relevant law or procedure. 

Adequate compensation is also a necessary element of any effective system for 

competent representation. Many states offer shockingly low rates of compensation 

for counsel in capital cases and courts will often refuse to make available funds for 

the necessary expert and investigative support that is crucial to an adequate defense. Defending capital cases is not only costly, but also a time-consuming project. 

This means that often the only attorneys willing to take on such cases are those 

with little experience and lacking the resources or desire to adequately investigate 

the facts. 

Even experienced and competent lawyers are often over-worked and financially 

unable to take on many capital cases. Attorneys often face the problem of whether 

to expend their own resources for investigation and expert support or foregoing that 

aspect of the defense. This failure of the system often results in inadequate assistance even from the most committed counsel. Providing adequate compensation will 

help ensure that qualified and able attorneys are available for all defendants facing 

capital punishment. 

The Capital Defense Incentive Grants proposed by the Innocence Protection Act 

will go a long way towards solving the problem of inadequate representation. These 

funds will allow the states to increase their compensation of defense attorneys and 

provide necessary training to give them the tools to be effective. Many states argue 

that they cannot afford to increase compensation and that the burdens of providing 

training and a independent appointing authority are too great. This legislation, however, will help the states by providing needed funds. 

Some opponents of the legislation have suggested that the states should be left 

alone to determine the proper standards, rather than having a centralized federal 

organization establish a single system. However, the recent revelations about the innocence of certain defendants who were sent to death row, many of whom wasted 

years of their lives in prison, illustrates the weakness of the state systems. The Act 

provides for a national system while still permitting the states to create specific 

standards appropriate for their jurisdictions. 

While some states have taken an active interest in the problem and are taking 

steps to add safeguards to the system, others have not. Defendants in those states 

should not be punished by having incompetent representation that may result in a 

wrongful conviction. Setting national standards will ensure that a minimum of 

qualifications and competency is met so that every defendant is given the opportunity to have a full and fair trial. 

Concerns have also been voiced that the independent authority might be taken 

over by anti-death penalty advocates. Many people who defend death penalty defendants are opposed to the system and few others are willing to take on the financial and the time commitment necessary for adequate representation. Others, however, who do not share these views are more likely to get involved if compensation 

31

for such work is adequate, permitting a lawyer to advocate zealously for his or her 

client. 

In times of grave difficulty, such as our nation currently faces, these issues are 

particularly important in maintaining public faith in our system of justice. During 

the Nichols and McVeigh trials the entire nation was concerned about the possibility 

of an attack on the government. It would have been easy to justify minimal representation for the defendants, based on the fears of the American public. The system ultimately worked in this instance, however, because the defendants had zealous and effective counsel and were fairly convicted and punished. This enabled the 

process to move quickly, with few challenges afterward and gave the public assurance that justice was being served. Even when post-conviction challenges arose in 

the McVeigh case, the public had faith that the defendant was guilty and the conviction was correct. The resources expended and the thoroughness of defense counsel 

contributed to the Court’s ultimate ruling denying a new trial for McVeigh. 

The Innocence Protection Act will ensure that minimum standards for competent 

counsel in capital cases will be met in every state. The Act rightly uses monetary 

incentives to enforce standards, both through the increased compensation of counsel 

and the withholding of grants. This use of monetary incentives directly addresses 

two problems that exist in the system today, inadequate compensation and a lack 

of state resources to improve the system. 

Incompetent counsel is one of the greatest problems with the death penalty system, creating concerns of fairness and arbitrariness, and raising questions about the 

correctness of verdicts. These minimal reforms provided for by the Act will benefit 

defendants, and also victims and society, by ensuring fair trials with a minimum 

of post-conviction challenges. 

In closing, I urge the Congress to pass the Innocence Protection Act in order to 

safeguard the constitutional right of every citizen to effective assistance of counsel. 

I look forward to answering any questions that you might have. 

Thank you.

Mr. SMITH. Thank you, Ms. Wilkinson. 

I think I’m going to save my detailed questions for a little bit 

later on and begin by asking a very general question to Mr. Graci 

and Mr. Logli. And that is that—and this, Mr. Graci, gives you a 

chance to elaborate on some of the points that you wanted to—in 

what ways would you change the legislation that we are considering? And why? 

Mr. GRACI. When we reviewed originally last year S. 800, which 

basically provided for a DNA model for Federal prosecutions, we 

thought that was an appropriate thing for the Congress to do, and 

think so today. 

But as I said, in Pennsylvania, we have been working on a bill 

since last year. I had heard as recently as last week that there was 

some movement on it. You better than I, Mr. Chairman, are familiar with the legislative process and how it sometimes plods along. 

But we have had input from the defense bar, from my office, from 

the State’s prosecutors, and had agreement at least through the 

Senate as to a particular provision. It’s not identical to H.R. 912 

or any of the other provisions, but we think that this is a matter 

best left to the States within their respective systems, to determine 

how to address this issue. 

The recent bill, I think it’s 2441 introduced by Senator Specter 

in the Senate, is similar to S. 800 in that it provides for old convictions, because most of this, and I agree with my colleague to my 

left, that these things should be frontloaded, that DNA evidence 

should be available for testing by defendants as well as prosecution, although we recognize that more times than not it’s going to 

be used to support a conviction rather than to support a defense. 

But those kinds of things have to go on at the front end of the prosecution. 

32

I agree with my colleague as well with respect to the counsel 

standards, that we have to frontload that process. 

But mandating a commission—and I have no disagreement with 

what Ms. Wilkinson said. And I’m not sure exactly what North 

Carolina did, but the point is, North Carolina did it. 

As I said in my written remarks, in Pennsylvania, if the Pennsylvania Legislature—and, quite frankly, they tried to do this. Several 

years ago, the Pennsylvania Legislature directed the State’s Supreme Court to adopt counsel standards in capital cases. The Pennsylvania Supreme Court promptly declared that statute unconstitutional as a violation of separation of powers under the State Constitution, because it’s for the court to determine matters with respect to practice and procedure in the courts in Pennsylvania. 

I recognize that in the Federal system the United States Supreme Court does not have that same authority. But as I said in 

my written remarks, it would be for the State to establish those 

standards by its mechanism. 

It would be thoroughly foreign in Pennsylvania to have an independent appointing authority to appoint counsel for indigent defendants, capital or otherwise. That has, historically, been a function of the courts. If the courts want to adopt such a system in the 

State of Pennsylvania, that would be up to them. 

But the problem that we in the States have argued against, for 

a number of years, Mr. Chairman, is the carrot and stick, that the 

Federal Government thinks that it can come up with the best idea. 

And oftentimes, if I can be candid, sir, the idea coming out of 

Washington is not necessarily the best idea for Pennsylvania. 

So we would leave these matters—if the Federal Congress—and 

we’ve certainly done this before. We have modeled State legislation 

after Federal legislation. But it’s been a determination of the policymakers of the State, elected by the people of the State, to make 

that determination. 

So if you want to set broad standards without punishing the 

States by taking away grants and the like, that’s fine. And we’ll 

look to whatever you propose. But we’re doing it ourselves. 

And the reason I said that our bill is broader, because the bill—

Mr. Delahunt’s bill, for 234 Members, as I understand at this point, 

and its Senate counterpart, only go to provide relief for—if you can 

demonstrate the defendant did not commit the crime or did not 

commit an aggravating circumstance or any other non-charge conduct used to enhance a penalty. In Pennsylvania, we allow the use 

of DNA evidence to establish new mitigating circumstances for a 

death sentence prisoner, which none of the Federal bills that I 

know provide for. So I think, in that regard, we’re broader. 

But we do require, in that bill, should it become law, an assertion of innocence similar to S. 800 and S. 2441, because that’s—in 

the post-conviction context, we’re not talking about whether or not 

the person might be not guilty, which, as you know, Mr. Chairman, 

is different from a determination of innocence. But in the post-conviction context, the assertion of innocence should be a part of any 

of these bills. 

So we would certainly include, as I had indicated, and it’s in my 

prepared remarks, the portions of any bill would have to have the 

three parts that Attorney General Fisher has outlined. And we beVerDate Jan 17 2002 13:41 Aug 29, 2002 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\061802\80318.000 HJUD1 PsN: 80318
33

lieve that H.R. 912 and its Senate counterpart are missing at least 

two of those. 

Thank you, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Graci. 

The gentleman from Virginia, Mr. Scott, is recognized for his 

questions. 

Mr. SCOTT. Thank you. 

Mr. Graci, you mentioned that the counsel requirements were onerous, and you said you wanted to elaborate. Could you elaborate? 

Mr. GRACI. I will try to, Mr. Scott. 

We have, in Pennsylvania, I should say, and in the attorney general’s office particularly, have echoed for many years—maybe it’s 

not ‘‘echo,’’ because that comes afterwards. But going back at least 

10 years in my own experience, we have called for the adoption of 

standards and the funding for competent counsel on both sides of 

capital cases, both for the prosecution and for the defense. And I 

will concede that, over the years, the moneys for the defense have 

not generally been there, at least coming from the State Legislature. That’s not to say that moneys for adequate defense are not 

there. In Pennsylvania, we have a decentralized system where the 

funding of the public defender services throughout the State are 

the responsibility of the several counties. That may not be the best 

way to do it, but that’s the way it’s done in Pennsylvania. 

But we have long called for adequate representation at the trial 

stage. I agree with Ms. Wilkinson that this is where you need the 

best counsel. And we have long advocated in the attorney general’s 

office that the best counsel should be appointed in these cases. And 

those would ward off—and understand—and I sat, as my curriculum vitae indicates, I sat, in 1989 and ’90, on a task force put 

together by the State Supreme Court and the Third Circuit and 

again in 1998 on a similar task force put together by the Third Circuit to address matters of capital representation in these matters. 

And I have always cautioned the people who, quite frankly, oppose the death penalty, and many of them are on these Committees, that by making sure that you have the best counsel up front, 

you will eliminate any successful challenges to ineffectiveness of 

counsel, which are brought, in large measure, for nothing more 

than delay. 

In Pennsylvania—and I’m involved in a number of these matters 

at the appellate levels. And I’ve authored a treatise, co-authored a 

treatise on this subject. 

Ineffectiveness of counsel claims are raised in every one of these 

cases, and in the greatest majority of them, they are rejected. And 

I have no doubt, quite candidly, Representative Scott, that when—

if these standards are adopted, you will still see the very same 

number of ineffectiveness of counsel claims; there will just be more 

of them that are rejected. 

But we fully agree and we fully support, and the attorneys general going back at least until the early 1990’s in Pennsylvania, including Attorney General Fisher, have supported providing an adequate defense in these prosecutions. 

We believe, however—and the problem we have with the bill is 

that it shouldn’t be something mandated by the Congress. We question whether or not the Congress has the authority to do it. AlVerDate Jan 17 2002 13:41 Aug 29, 2002 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\061802\80318.000 HJUD1 PsN: 80318
34

though I guess the authority that you utilize is the spending power. 

If that’s an appropriate use of the spending power, then I suspect 

you have the authority. But these are matters historically left to 

the States. 

And I laud North Carolina. If they have adopted such a standard, and if they’ve gone to, by whatever mechanism—and I don’t 

know what it is in North Carolina, if it’s the Legislature or if it’s 

the court that adopts these standards. But it’s for the State to do 

that. 

Mr. SCOTT. Let me ask, Mr. Neufeld, when you see people on 

death row erroneously convicted, what are the factors that tended 

to get them there? 

Mr. NEUFELD. Well, obviously, the single greatest factor, in terms 

of the first 108 cases that we’ve looked at, is mistaken eyewitness 

identification. And what’s interesting about that is that it’s not always a single eyewitness who had more than a half-minute to see 

the perpetrator. In some of the cases, for instance, like Kirk 

Bloodsworth’s case—and Mr. Bloodsworth is sitting here—there 

were five eyewitnesses, all of whom thought he was the person who 

had raped and killed this little girl. But semen was recovered from 

the little girl, which obviously came from the perpetrator. And it 

turned out it came from someone other than Mr. Bloodsworth. So 

that’s identification. 

The other causes, 50 percent of the time, police misconduct or 

prosecutorial misconduct played a role in the convicting of an innocent person. 

A third of the time it was bad forensic science, people working 

in crime laboratories who said that the evidence matched the defendant when it turned out it didn’t or it was grossly exaggerated. 

And a third of the cases, unfortunately, it was incompetent defense counsel. But, quite frankly, if you have competent counsel, 

that is the best defense to prevent misconduct by police or prosecutors. It’s the best defense to prevent shoddy work by criminalists 

working for a laboratory. And it becomes the first line of defense 

for correcting all the other problems. 

Mr. SCOTT. Can I ask one other question, Mr. Chairman? 

Mr. SMITH. We’ll have——

Mr. SCOTT. Okay, go ahead. 

Mr. SMITH. Thank you, Mr. Scott. 

The gentleman from North Carolina, Mr. Coble, is recognized for 

his questions. 

Mr. COBLE. Thank you, Mr. Chairman. 

Good to have you all with us. 

Ms. Wilkinson, thank you for your kind words regarding my 

State. 

Mr. Neufeld, as an aside, and this is hindsight being applied, I 

hope that someone in a position of authority at least apologized to 

Mr. Anderson. Was that forthcoming, or do you know? 

Mr. NEUFELD. The Commonwealth attorney, who was not the 

Commonwealth attorney who prosecuted him 20 years ago, but the 

current Commonwealth attorney certainly expressed his apologies 

and has been supportive of Mr. Anderson in the interim. 

But you raise a very, very important question, sir, because in 

many of these cases, when the DNA exonerates the individual, a 

35

Governor will reluctantly sign a pardon or a district attorney will 

reluctantly consent to a vacatory dismissal, saying not that the person is actually innocent but merely that we no longer can prove his 

guilt beyond a reasonable doubt. And the reason that is very, very 

important, sir, is that when you are talking about what the standard should be for testing, all these people—the 108—there is no 

question they are factually innocent. But people can always come 

up—good defense lawyers and good prosecutors can always come 

up with a new theory of a case. And unless we say that it’s the 

kind of evidence that, you know, reasonable people would say undermines the confidence in the verdict, then we’re always going to 

be faced with a situation where people will say, ‘‘Not in this case.’’ Mr. COBLE. I was just curious to know about that. I think the 

least that can be done would be ‘‘I’m sorry.’’

Mr. NEUFELD. Well, actually, your bill does more than that——

Mr. COBLE. Yes. 

Mr. NEUFELD [continuing]. Because your bill says that there 

should be compensation——

Mr. COBLE. I know. 

Mr. NEUFELD [continuing]. For people. And unfortunately, in Virginia, there is no compensation bill, and hopefully we’ll get one. 

Mr. COBLE. The Chairman imposes this red light against us as 

he does to you all, so let me move along here. [Laughter.] 

I’m not admonishing you. 

Mr. NEUFELD. Yes, sir. 

Mr. COBLE. Folks, let me ask you this. I am not a scientist. How 

reliable or accurate is DNA testing? Is it foolproof? Probably not, 

but let me here from anybody. 

Mr. LOGLI. Well, I’m not a scientist either, sir, but I would say 

that DNA is as close to foolproof, if the samples have not been degraded, if there are sufficient samples. 

We just solved a case in Illinois involving seven murders at a 

restaurant from 12 years ago, because the police back then had the 

foresight to save a half-eaten meal that they found in the garbage 

that had just been emptied. They didn’t know that DNA technology 

would be able to take a DNA sample from the saliva left on that 

half-eaten meal. But 12 years later, that was a crucial piece in 

solving that crime. 

I have a tremendous amount of respect for DNA, as do the prosecutors of this country. So I think it’s as close to foolproof as any 

scientific method we’re going to find. 

Mr. COBLE. And I’m pro-DNA also. This reverts to the Chairman’s comment and to my comment, the concern about the possible 

revenue in this matter. What is the cost of DNA testing? 

Mr. NEUFELD. The cost of DNA testing varies, depending on 

whether it’s carried out by private laboratories or by State-run laboratories. The average criminal case in the jurisdictions that we 

deal with most frequently are telling us that in a case it could be 

$500 or $1,000 to do the testing. 

What’s interesting is that the average cost of housing somebody 

in prison, sir—— Mr. COBLE. I was about to—— Mr. NEUFELD [continuing]. Is about $25,000. 

Mr. COBLE. That was going to be my next question. 

36

Mr. NEUFELD. It’s about $25,000, according to the reports from 

the various departments of correction. 

Mr. COBLE. Per year, annual? 

Mr. NEUFELD. Per year. So you take a person like Marvin Anderson, for instance, who was going to be spending the rest of his life 

in prison; the State saved several million dollars by expending the 

$1,000 to get him the test. 

And that is the truth in every single one of the 108 exonerations 

that we have today. 

Mr. COBLE. Mr. Logli, I think I can beat the red light. [Laughter.] 

Your testimony states that you support the use of DNA testing 

where such testing will prove the ‘‘actual innocence’’ of a previously 

convicted individual. If you will, define what you mean by ‘‘actual 

innocence’’ and how that relates to a defendant being exonerated 

by DNA evidence. 

Mr. LOGLI. Well, sir, I can only give you a couple of 

hypotheticals. An individual who is asserting actual innocence and 

asks for the DNA test could be a rapist, somebody who was involved in the actual crime or is accused of being involved in the actual crime. There is DNA material with the victim or on the clothing of the victim. That test could actually show actual innocence, 

could actually exclude that person from committing that crime. 

On the other hand, if you’ve got somebody who participated in 

the rape, not necessarily engaged in the penetration but, let’s say, 

restrained the person, if you restrain somebody while somebody 

else rapes that person, you’re guilty of the rape. But DNA testing 

isn’t going to do anything to show that person guilty or innocent. 

It would be a waste of time, a waste of resources, just something 

to frustrate the system. 

That would be just two hypothetical examples. 

Mr. COBLE. The red light is in my eyes, so I’ll yield back. Thank 

you, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Coble. 

The gentlewoman from Texas, Ms. Jackson Lee, is recognized for 

her questions. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. 

I do want to add my appreciation for holding this hearing, for the 

Chairman holding this hearing. And I want to add my appreciation 

as well to my friend and colleague, Mr. Delahunt, for giving me the 

opportunity to join him as an original co-sponsor of this legislation. 

And to indicate to the Committee that I thank them for their tolerance for the young people that were in this room, part of the Leland-Johnson program from Minnesota, and ‘‘Leland’’ in tribute to 

Mickey Leland, the predecessor of mine in this congressional seat. 

I mention that only because, for those who may know Mickey Leland, this is the appropriate place for anyone who is emulating him 

through a program to be. And this is an appropriate bill. 

I cannot thank you enough, to Mr. Neufeld, for bringing Mr. Anderson here today. And as I listen to the testimony, and since I did 

not get an opportunity for an opening statement, I’m going to make 

a brief comment and then pose two questions. 

I could not be moved more by your testimony, if you will, on the 

heavy burden that we are carrying with the death penalty in the 

37

United States without balance. I said to the young people that this 

legislation goes to whatever your viewpoint may be about the death 

penalty. We have not chosen to take the radical surgical perspective, which is to offer legislation to end, in its finality, the death 

penalty. As you may know, in your business, this was a very hot 

discussion some 2, 3, 4 years ago, as the Governor of Illinois literally lifted his hands in frustration when, I believe, 13 individuals 

on his death row were found to be innocent, and maybe more to 

come. 

And so this was a thoughtful and deliberative process of trying 

to see how we solve this problem. For the life of me—I appreciate 

the testimony of the other two witnesses. But for the life of me, I 

cannot understand how we can accept the word ‘‘burdensome’’ in 

the context of justice. How can we ignore the ability to solve the 

problem because we’re arguing burden? 

One of the things that we use frequently in this Congress, and 

I come from local government, having been a member of the city 

council, is unfunded mandates. We use that rather willy-nilly. It’s 

always useful to use it when we oppose something. And we also use 

the issue of States rights. 

But I am firm believer that those are sometimes dilatory tactics 

when we want to express our viewpoint and we don’t like something. You can’t use dilatory tactics in the question of someone’s 

life and the justice that we offer to say is the part of the very 

underpinnings of the Constitution. 

So let me both thank Mr. Neufeld and, of course, Ms. Wilkinson. 

By the way, I followed the case, as I guess everyone did, extensively, because, as you well know, as a Member of the Judiciary 

Committee, we had opportunity to review those matters, too. 

And I do believe that your concept that victims want finality is 

really a higher calling than to try to quickly run through a prosecution just to do so. And I was very pleased to hear you, an expert 

by way of your past experiences, make that claim, because that’s 

all we’re trying to do here, is to clear the air and to ensure that 

as we proceed using the scales of justice, using the criminal code, 

that we are doing it without a shadow of a doubt and, in the instance of the death penalty or a criminal case, beyond a reasonable 

doubt. 

Let me, if I can, to Mr. Neufeld, raise the question of the issue 

of burden and the issue of preservation of DNA. Are we not sufficiently endowed with modern technology that that burden can be 

lessened? Help me understand where that would be a burden for 

a prosecutor, if we were talking about preserving the evidence or 

being able to do DNA testing at a subsequent time. 

Would you also just clarify for me how long Mr. Anderson was 

incarcerated for? 

Mr. NEUFELD. About 16 years. 

Ms. JACKSON LEE. Sixteen years. 

Mr. NEUFELD. Yes. 

Ms. JACKSON LEE. So he lost 16 years of his life. And the time 

frame where the gentleman came forward was what time frame? 

Mr. NEUFELD. He came forward 5 years after the conviction to 

confess, but the judge rejected that confession. 

Ms. JACKSON LEE. And how much longer thereafter? 

38

Mr. NEUFELD. Another decade. 

Ms. JACKSON LEE. Another decade. Sixteen years of an individual’s life. I see his mother, and I don’t know if those are—— Mr. NEUFELD. It’s his sister and nephew. 

Ms. JACKSON LEE. His sister and nephew. 

So let me—I did this before one time, but let me publicly apologize to you. Let me offer my deepest apology. And if my apology 

can extend to a jurisdiction beyond which I have realm, let me offer 

those apologies to you and, I would say, on behalf of this Nation 

as well. 

I’d ask the ability, Mr. Chairman, that he may answer the question. 

Mr. SMITH. Okay, if you’ll answer the question. 

And then, Ms. Jackson Lee, we’re going to continue, and we will 

have a second round. 

Ms. JACKSON LEE. I do appreciate it. Thank you very much, Mr. 

Chairman. 

Mr. NEUFELD. Some States already preserve the evidence routinely, and they have not deemed it to be burdensome at all. 

I might point out that all the rape kits in a particular State, 

even a large State, would fit easily in this room. They do not need 

to be refrigerated. They do not need—any room like this which is 

air-conditioned, if you close the windows—you don’t even want windows in a room like that—will maintain the evidence for 20, 30, 40, 

50 years without any kind of additional expense. 

You asked a question in your own comments, Mr. Chairman, 

about an automobile and the burdens of preserving an automobile. 

No one is suggesting you preserve an automobile. 

What police departments do routinely in cases like that is—in 

fact, they’re doing it right now, because we have a laboratory in 

New York that intends to use DNA testing to solve car thefts. And 

what they’re doing is, they’re going to go in there and they’re going 

to swab the steering column, where the person played around with 

the ignition, okay? That’s what they’re going to do. And they’re 

going to save those swabs. And if they believe that the perpetrator 

handled the rearview mirror, they’ll swab that. 

They don’t have to preserve the car. They don’t intend to preserve the car. It’s a small amount. 

Mr. SMITH. Mr. Neufeld, you don’t know of any instance where 

a large object would have to be preserved, then? 

Mr. NEUFELD. I know of none. And I don’t think any exist. It is 

the——

Mr. SMITH. You’ve answered my question, and the gentlewoman’s 

question. We’ll need to move on. But, thank you. 

Ms. JACKSON LEE. We both thank you. 

Thank you, Mr. Chairman, for your indulgence. I look forward to 

a second round. Thank you. 

Mr. SMITH. Okay, Ms. Jackson Lee, thank you. 

The gentleman from Virginia, Mr. Goodlatte, is recognized for his 

questions. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

I’d like to ask Ms. Wilkinson and Mr. Neufeld, the proponents of 

the legislation, about the miscellaneous provisions in the bill. I certainly see, and I see a considerable amount of merit in the concern 

39

about preserving DNA and making sure that there is the ability to 

use it to prove innocence, and I certainly am concerned about provision of appropriate counsel. 

I share Mr. Graci’s concern about federalism, although I will tell 

you, Mr. Graci, that just this morning this Committee did not pay 

a great deal of attention to federalism. [Laughter.] 

It passed a very good bill, but it was clearly a Federal bill dealing with another issue of interest to the Committee. 

So I’m wondering why these miscellaneous provisions were included at the end of the bill. These are more directed not toward 

simply the protection of innocence and establishing innocence, but 

they are value judgments. And I certainly respect the value, and 

I respect the judgments of those who made them. But there’s going 

to be substantial disagreement about whether any juvenile should 

ever, who is a mass murderer, should ever face the death penalty. 

There’s going to be substantial disagreement about what the definition of mentally retarded is and what standard one has to meet before one would qualify for the protection against the death penalty 

based upon that. And there’s certainly going to be substantial disagreement about the provision in this bill that says that we should 

create a new option in drug kingpin cases. 

So why do we have these miscellaneous provisions at the tail end 

of the bill? Can you help me with that, Ms. Wilkinson? 

Ms. WILKINSON. Yes, sir, as to some I can. I’m not sure I can 

speak to every one. 

As you can see, the first few miscellaneous provisions deal with 

compensation, which is really a key element to effective assistance 

of counsel, which I’m sure you recognize. It’s very difficult to get 

good counsel to defend defendants charged in capital cases if 

they’re not fairly compensation. It’s very difficult, just as I think 

Mr. Logli said, for prosecutors—— Mr. GOODLATTE. Since I’m limited in time, why don’t you focus 

on the three points that I just raised? 

Ms. WILKINSON. Yes, sir. Let me turn to the juvenile offenders 

and mentally retarded. 

In our project with the Death Penalty Initiative, we studied all 

types of provisions that might be added to reform the current state 

of the death penalty in the United States. And one thing——

Mr. GOODLATTE. But see, the purpose of this bill is to make sure 

that innocent people are not prosecuted and convicted and executed 

under the death penalty laws of various States. These provisions 

are geared more toward changing the value judgment that has 

been already passed upon by the Congress as to who should be subject to the death penalty. And I wonder why you’ve mixed the two. 

Ms. WILKINSON. Well, most respectfully, I don’t believe the bill 

is just aimed at protecting the innocent. It’s also aimed at protecting the integrity of the system and the public’s view of the fairness of our system. When you have competent counsel, it doesn’t 

mean only innocent people will be found not guilty. It means that 

guilty people will be found responsible for their crime but in a fair 

way. 

And so these provisions, as to juvenile offenders and mentally retarded, go to, I think, the public’s faith in the integrity of our system. Congressman Delahunt was talking about that earlier in his 

40

statement. And what we’ve seen, because of the problems in Illinois, Texas, and elsewhere, is that the general public, who doesn’t 

participate in the criminal justice system, is shocked by some of the 

things that go on in death penalty litigation. And there is a real 

debate about whether a juvenile offender, regardless of the type of 

crime that they commit, or someone who is mentally retarded 

should receive the ultimate sanction under our system. 

So if we are aiming at addressing the integrity of the system and 

the faith the public has in what we do as prosecutors and defense 

counsel every day, these are essential elements that at least should 

be debated. 

Mr. GOODLATTE. If the ability to move this bill forward to address in some fashion—and I agree with some of the concerns 

raised by others about exactly how we do the provisions related to 

DNA testing and how we assure competent counsel. But if the ability to move forward on that legislation is dependent on whether or 

not these miscellaneous provisions repealing certain aspects of our 

death penalty laws are to be included, do you insist that they be 

included? 

Ms. WILKINSON. Well, I think I’m beyond my area of expertise 

since that’s something you——

Mr. GOODLATTE. Well, that’s up to you. This is simply—— Ms. WILKINSON [continuing]. Congressmen compromise or decide 

on every day. 

Mr. GOODLATTE. Well, Mr. Neufeld, do you want weigh in on it? 

Mr. NEUFELD. I don’t dare. [Laughter.] 

You know, I’m not going to pretend Solomon-like on such important issues. That’s something that you folks do routinely. 

Obviously, many people think that these matters are extremely 

important. The only one of them on which I would comment even 

briefly on has to do with informing jurors that they have an alternative to death, which is life without parole. Even people who I 

know who are in favor of capital punishment feel that a jury should 

at least be informed of the options, and nothing more than that. 

So it’s like the truth function of these proceedings. That’s what 

it’s about. DNA is about truth. Competent counsel is exposing the 

truth as much as possible, and telling the jury that, if they don’t 

wish to execute, that a person will really be put away for life and 

won’t be paroled on any technicality but really will go away for life. 

It’s part of that truth-seeking function, nothing more. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Goodlatte. 

The gentleman from Massachusetts, Mr. Delahunt. 

Mr. DELAHUNT. Thank you, Mr. Chairman. 

I’m proud to say that every individual that I convicted, during 

my tenure as district attorney, for first degree murder has never 

been released. Of course, Massachusetts is a noncapital-punishment State. 

And I’d point out to my friend and colleague from Virginia that 

one particular provision under title III—the miscellaneous provisions, section 307, relative to the execution of juvenile offenders 

and the mentally retarded—is a sense of Congress provision. And 

I’d be happy to discuss that—— Mr. GOODLATTE. My sense may not be the same as yours. 

41

Mr. DELAHUNT. I’d be happy to take a long walk with my friend 

from Virginia and discuss what we could do with that particular 

provision. 

In any event, I’d like to get back to—the issue of cost has been 

raised by both the Chair and Mr. Coble. 

Let me direct this to Mr. Neufeld. Can you inform us what the 

experience of the State of New York is relative to DNA tests? I 

think some Members of the Subcommittee and other colleagues in 

the House have concern that there will be, to use their term, a 

flood of applications for DNA testing. Am I correct when I state 

that there is a similar even more expansive DNA law in New York 

and that’s been in existence since 1994? Am I correct in that statement? 

Mr. NEUFELD. That’s correct. 

Mr. DELAHUNT. Can you relate to us what the experience in New 

York is, and how many applications there have been, and what 

your cost estimate would be? 

Mr. NEUFELD. I can not only give you the numbers from New 

York but also the numbers from Illinois. 

And it’s very important, because a lot of the arguments that have 

been made are not only speculative but they’re actually not supported by any of the factual evidence. There’s talk about how this 

is going to be a floodgate of petitions, how there’s going to be overwhelming burdens in terms of storing evidence. And in fact, as I 

pointed out about the evidence, that’s not the case. 

It’s also not the case in terms of the people who are requesting 

this relief. New York has the first statute in the country. We’re 

averaging fewer than 20 petitions per year being filed Statewide. 

Illinois has the second-oldest statute in the country. They’re averaging about 16 to 17 applications a year Statewide. 

I don’t know if you have the document, but the State of Rhode 

Island recently did a survey of how many people have been applying for DNA testing in the 20-some-odd States which currently 

have post-conviction DNA access statutes, and the numbers are 

very few with one exception. And that exception is Texas. 

And the reason that Texas is higher is that Texas actually, when 

they passed the statute, they were required to notify every single 

prisoner in the State that this new bill existed and that they could 

file pro se applications. And so a lot of people filed pro se applications. None of the other States had a similar provision. 

More importantly, in places like California what they did is the 

applications that come to the court are referred to the Innocence 

Projects of northern and southern California, and they screen 

them. So, ultimately, very few applications ever get filed in the 

court. 

Mr. DELAHUNT. Let me just pursue that. You were saying, in 

New York, there’s an average of around 20? 

Mr. NEUFELD. Fewer than 20 a year. 

Mr. DELAHUNT. Fewer than 20 annually, and an estimated cost 

of anywhere from $500 to $1,000. 

Mr. NEUFELD. If it’s done by the State, it could be $500 to 

$1,000. If it’s done privately, it could be a few thousand dollars. 

42

Mr. DELAHUNT. So we’re talking, in real terms, maybe $50,000 to $100,000 annually, in terms of the experience of the State of 

New York, which has had this on its books since 1994? 

Mr. NEUFELD. Actually, it’s less than that in New York. 

Mr. DELAHUNT. Okay. I thank you. 

And I’d like to direct this question to the district attorney. Or is 

it State’s attorney in Illinois? 

Mr. LOGLI. State’s attorney. 

Mr. DELAHUNT. State’s attorney. 

On page 4 of your written testimony, you state that, ‘‘Law enforcement should be permitted to destroy biological samples from 

closed cases, provided that convicted individuals are given adequate notice and opportunity to request testing. Otherwise, police 

agencies and the courts would be required to retain virtually all 

evidence for all time.’’ Let me suggest, Mr. Logli, that that provision is incorporated 

within H.R. 912. 

Mr. LOGLI. Right. And I’m not aware that we have any problems 

with the preservation of evidence sections. 

In Illinois, we’ve had a preservation of evidence statute that has 

clearly delineated years in certain categories of crimes. 

Mr. DELAHUNT. Fine. I just wanted to be clear about that. 

And I see my time has expired, and I’ll look forward to the second round. 

Mr. SMITH. Thank you, Mr. Delahunt. 

Let me address a question I think to the first three panelists, because Ms. Wilkinson didn’t mention DNA, so I’ll limit my question 

to the three gentlemen. 

And that is this: Would you give me some examples of instances 

where an individual has been exonerated because of DNA evidence 

but who was still not innocent? 

Mr. Logli, do you want to think about that? 

Mr. LOGLI. Exonerated by DNA evidence but still——

Mr. SMITH. But still not innocent. In other words, there was one 

study that showed that 60 percent of the people who were exonerated by DNA were later reconvicted, for example. 

Mr. LOGLI. Oh, okay. 

Mr. SMITH. Or there might be an example of someone who was 

exonerated because it wasn’t that individual’s DNA, but he was 

still an accomplice of the crime, even though that wasn’t his DNA. 

In other words, what are some examples of where individuals have 

been exonerated but they are not necessarily innocent. 

Mr. LOGLI. Okay, I’m going to have to defer on that, because I’m 

not familiar with that statistic, and I’m not familiar with any particular cases. I’m not sure if that’s a correct statement or if people 

have been released——

Mr. SMITH. Okay. Well, let me try Mr. Neufeld and Mr. Graci. 

Mr. NEUFELD. I think, and correct me if I’m mistaken, that what 

you’re asking is, have people been excluded through DNA testing, 

not necessarily exonerated. 

Mr. SMITH. That’s not what I’m asking. And I don’t know how 

to restate it other than the way I just did, which is to say that 

there are a number of instances and other examples, which you 

may, yourself, have given—I don’t know—where individuals have 

43

been exonerated but who have either later been found guilty because of other evidence or who—and as you pointed out the distinction a while ago, to be found not guilty is not necessarily to be 

found innocent. And I’m just wondering what examples there might 

be of that. 

Mr. NEUFELD. Well, of the 108 people who have been exonerated 

through DNA testing, none of them have ever been convicted of any 

of the crimes for which they were exonerated. 

Mr. SMITH. That wasn’t my question, and I know about the 108. 

Mr. NEUFELD. I’m sorry. 

Mr. SMITH. Maybe I’m having a hard—Mr. Graci, do you want 

to try? [Laughter.] 

Mr. GRACI. Mr. Chairman, I guess I don’t know of a specific answer to your question. The difficulty I’m having is with the use of 

the word ‘‘exonerated.’’ I’m certainly familiar with a number of 

cases in my State, including the one to which Mr. Neufeld referred, 

where one might say that the defendant was exonerated in that the 

court directed that he be awarded a new trial. I’m aware of a number of instances where that has occurred. And I believe in the particular case that Mr. Neufeld referred to, the prosecutor determined that he didn’t have sufficient evidence to go forward to retry 

the case. 

I can think of another case in my State that’s a reported case, 

and I can give you the opinion, because I think it points out a problem in this area. It’s a case called Commonwealth v. Reese. I can 

communicate with your staff counsel as to the actual cite. I don’t 

have that with me today. 

But in Reese—and I don’t mean to be graphic, but it’s necessary 

in this context. It was a rape case. Reese claimed that he was not 

the rapist. There was a DNA swab obtained from the woman. The 

DNA swab did not match Reese. 

Now, at the trial, all that the prosecution has to prove for a rape 

is penetration, however slight. It doesn’t have to prove that any— I’ll try to be careful here—that any DNA sample was left. The prosecutor didn’t go into—and we have rape shield laws in Pennsylvania that prohibit examining the woman about her prior sexual 

activity. 

It’s reported in the Reese case that the victim did in fact explain 

after the fact why the defendant’s DNA wasn’t found. He hadn’t 

left a sample, and I’m trying to pick my words carefully. And she 

admitted, post-conviction, to having had relations with her boyfriend, obviously a thing that a lot of people aren’t going to be inclined to wish to talk about publicly. And that would have accounted for the DNA sample that did not match the defendant. 

Was he exonerated? Well, a new trial was granted. And in that 

particular case, this court said you can’t even consider that explanation—— Mr. SMITH. Right. 

Mr. GRACI [continuing]. Which I think—— Mr. SMITH. You get at the answer that I was looking for, and I 

appreciate that. 

Mr. Logli, I want to go really quickly to you. What changes would 

have to be made in this bill in order for the National District Attorneys Association to endorse it? And if you could just——

44

Mr. LOGLI. Sure, very briefly. 

Mr. SMITH [continuing]. Go through some items. 

Mr. LOGLI. We’d want to work on the standard for DNA testing. 

The standard we’re living with in Illinois basically says that the 

test would have to produce new, noncumulative evidence materially 

relevant to the defendant’s assertion of actual innocence. And identification would have to be an issue in the trial. We would want 

a standard similar to that. I think we can come up with something 

that would satisfy everybody. 

Number two, on counsel competency standards, Ms. Wilkinson 

basically makes my case. The States are already doing it. And in 

many cases, the States are doing it, I think, in a better fashion 

than what the Federal legislation would imagine. And I believe— on behalf of America’s prosecutors, we believe that this is something that the States should do. 

Illinois has done it. As I pointed out, we’re the only the only 

State that has counsel competency standards for assistant prosecutors. 

Mr. SMITH. Real quickly, what are a couple more ways you would 

change the bill? 

Mr. GRACI. I think that those are our two main objections. I 

won’t get into the miscellaneous provisions, the sense of Congress, 

et cetera. But those are, I think, our main problems. 

Mr. SMITH. Okay, thank you, Mr. Logli. 

Mr. LOGLI. You’re welcome, Mr. Chairman. 

Mr. SMITH. The gentleman from Virginia, Mr. Scott, is recognized 

for his questions. 

Mr. SCOTT. Mr. Chairman, I want to follow up on the onerous 

counsel. 

The bill has guidelines. What’s onerous in here? 

Mr. LOGLI. Well, it also sets up an independent commission, 

independent from the courts. The courts in the various States jealously guard their right to dictate who practices law and how they 

practice law in those States. And I believe that an independent 

commission established under the statute really—which then 

issues directives or standards, really goes against the authority of 

the State courts. Plus, I think the way the commission is set up, 

we’re concerned that there’s not enough input from other than defense counsel. 

Mr. SCOTT. Now, you have a procedure for establishing competent counsel in Illinois. 

Mr. LOGLI. Yes, sir. 

Mr. SCOTT. And you’ve seen other competent counsel statutes. 

Mr. LOGLI. Actually, it’s a supreme court rule. 

Mr. SCOTT. Don’t they all kind of follow the same guidelines? 

Mr. LOGLI. I think many of them. And I pointed out that 22 of 

the 38 States with the death penalty have standards. And many of 

them have the same elements: number of years’ experience, number of trials tried, number of capital trials tried. 

Mr. SCOTT. And you would expect pretty much the—so, I mean, 

are we talking semantics as to who is going to set the standards? 

Mr. LOGLI. I think that is true. 

Mr. SCOTT. So it’s not onerous to have good standards? 

Mr. LOGLI. No, sir. 

45

Mr. SCOTT. Ms. Wilkinson, the gentlelady from Texas said that 

we were looking at the Oklahoma case. As you will remember, we 

actually participated in the case, serving as an intermediate court 

of appeals—— Ms. JACKSON LEE. I was trying to be polite. 

Mr. SCOTT [continuing]. Making rulings, helping the judge along 

the way. So we were doing more than just following. We were serving as judges, juries, and intermediate courts of appeal. 

I don’t know if you want to answer it or somebody—we mentioned the kingpin statute, where we require the judge to have 

some discretion. Is that not required by constitutional interpretation? 

Ms. WILKINSON. No, not currently, sir. And I think it raises a 

very good point, going to your earlier question. 

In North Carolina, there was a centralized independent appointing authority used, contrary to—or, what these prosecutors here 

are objecting to, to take that decision away from the courts where 

there are some allegations that judges appoint their friends or, you 

know, supporters. As you know, many judges are elected in State 

jurisdictions. 

And I think what troubles me the most is that some of us are 

coming before you today and suggesting that the constitutional 

minimal is sufficient. I think Justice Sandra Day O’Connor was 

urging us to reconsider that in saying: Look, as a Justice on the 

Supreme Court, all I can decide is the constitutional standard. 

But that doesn’t mean, as a matter of policy, that the United 

States Congress and the public doesn’t want a higher standard 

when we’re using the most severe penalty available under our system. 

So just because the State of Illinois or another State has the 

minimal constitutional standards as directed under Strickland, 

which is the United States Supreme Court addressing effective assistance of counsel, I don’t think we should be proud of that. That 

has obviously led to some of the problems we see here today with 

some of the people who are standing up, having been found innocent years and years after their conviction. 

What we want is a standard that will make the public sure and 

confident in our judicial system that we are giving the best competent counsel to defendants as they face serious penalty. 

Mr. SCOTT. And back to the constitutional minimum, would—the 

bill changes the law, the kingpin statute, to allow the judge discretion in applying the death penalty. The present law, as I understand it, says, the jury says death; the judge has to impose death. 

What the bill will do is to allow the judge discretion in imposing 

the death penalty or not. There’s been some objection to that. And 

my question was whether or not that was actually required, that 

discretion for the judge was actually required by constitutional interpretation. 

Mr. DELAHUNT. Would my friend from Virginia yield? 

Mr. SCOTT. I will yield. 

Mr. DELAHUNT. I think that you might have misspoke, because 

it’s my reading of the provision that it doesn’t provide discretion to 

the judge to impose at his option either a death sentence or a life 

without parole. What it does do is it brings the drug kingpin statVerDate Jan 17 2002 13:41 Aug 29, 2002 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\061802\80318.000 HJUD1 PsN: 80318
46

ute into line with other Federal statutes that carry as its sanction 

the death penalty. 

Ms. WILKINSON. I don’t think, Congressman, that that’s any 

change in what we understand the law is. For example, in the 

McVeigh and Nichols cases, once the jury imposed the death sentence against Mr. McVeigh, Judge Matsch had to impose it. He actually announces the sentence. In the Nichols case, they returned 

a life sentence. Again, he—I mean, they didn’t make a determination. He pronounced a life sentence. 

And I think in this provision, all they’re trying to clarify is, when 

the jury returns that sentence of death, a judge doesn’t have discretion, which is consistent with my understanding of Federal law in 

other death penalty cases. It’s that the drug kingpin statute was 

the first death penalty-eligible offense passed under the Federal 

system. As you may recall, that was one of the very first, and then 

I think it was ’94 when you all passed another crime bill that you 

added maybe 50 different offenses that had capital punishment for 

Federal crimes. And so I think this is just going back to fix that 

original penalty. 

Mr. SCOTT. I have another question. 

Mr. SMITH. The gentleman has another question, and rather 

than have a third round, I’d like for the gentleman to go ahead and 

ask the question now. 

Mr. SCOTT. Mr. Neufeld, of the people that come to you with a 

DNA request, how many are exonerated? 

Mr. NEUFELD. We have about 200 cases pending. We have about 

4,000 cases in the hopper that are being processed at one stage or 

another. And so far, we’ve brought—our place has brought about 

120 cases to lab. And we have gotten exclusions and exonerations 

in over 50 percent of those cases. 

So in more than 50 percent of the cases where we eventually got 

the laboratory, and they did the testing, the testing results completely exonerated the individual. The convictions were vacated, 

and the charges were dismissed. 

In those cases, it wasn’t a situation where there was other evidence to suggest that the person had in fact committed the crime. 

Mr. SCOTT. You started with how many? And you narrowed them 

down——

Mr. NEUFELD. Well, there are about 120 cases where we’ve gotten to lab. And our own project is responsible for approximately 60 

exonerations of the 108. 

So in 50 percent or more—maybe it’s 53, 54 percent of the 

cases—we’ve gotten exonerations. And the rest of the time, the 

DNA testing confirmed the guilt of the individual. 

Mr. SCOTT. Mr. Chairman, I’d like to follow through, if I can. 

Now, how did you screen the people, because some of them were 

screened out because DNA evidence wasn’t there and, presumably, 

had it been there, they would be in the 50 percent category, too? 

Mr. NEUFELD. In 75 percent of the cases that we screen and accept, we eventually have to close out those cases because the evidence in the intervening years has been lost or destroyed. There’s 

no reason to believe that our 50 or 55 percent batting rate would 

be any different for the hundreds and hundreds of cases that we 

had to close out. 

47

The last comment, Congressman Scott, I’d like to make in response to that question has to do with what are the criteria. I can 

only tell you that the criteria are such that in many of these cases, 

when we’ve asked for testing, we’ve been opposed. We’ve been opposed because certain people have said that the DNA testing would 

not prove actual innocence. And if it doesn’t prove actual innocence, 

you’re not entitled to testing. 

The best example of that is sitting right here in this room today 

with Ray Krone. In Ray Krone’s case, the victim was attacked and 

murdered in a bar in Phoenix, Arizona. And they found some saliva 

on her shirt. She was bitten, and they found some blood drops in 

her pants, but there was no semen. And so when they wanted testing, the thinking of the prosecutors was, this will not exonerate 

him, because he still could have killed her without it being his 

blood or his saliva. That was the argument even though the theory 

at the trial was that one man acting alone had bitten her and had 

struggled with her and had bled on her, and it was his blood. So 

on a technical level, prosecutors were saying: You’re not entitled to 

the testing, because even if he’s excluded in the DNA, he’s not exonerated. 

The DNA testing was done for Mr. Krone. He was excluded. But 

it wasn’t enough. But what happened is, they then ran it through 

the convicted offender database, and they got a hit on a guy who 

lived a few blocks away from the bar, who turned out to be the real 

perpetrator. 

The point is, and this goes to something also that the Chairman 

asked before, one of the best things about this bill is that it has 

two tiers to it: one tier for getting a DNA test, and a second tier 

for the court conducting some kind of hearing after the results 

come in which are favorable, to decide what, if any, relieve should 

be accorded this individual. 

There could be cases where you have a broad review for allowing 

testing, you get an exclusion, and then you decide, nevertheless, 

he’s not entitled to his freedom because it just hasn’t met that burden. This statute will give courts the right and the power to grant 

the testing yet, nevertheless, keep somebody in prison. 

Mr. SMITH. Thank you, Mr. Scott. 

Ms. Jackson Lee? 

Ms. JACKSON LEE. Not knowing that Mr. Krone was in the audience, and I assume you’ve just suggested that he is, let me be complete and suggest and offer my apologies to him as well. 

Mr. SCOTT. Will the gentlelady yield? 

Ms. JACKSON LEE. Be happy to yield. 

Mr. SCOTT. And Mr. Bloodsworth is here also from Virginia. 

Ms. JACKSON LEE. Mr. Bloodsworth is here. 

Mr. DELAHUNT. Please raise your hands, gentlemen. 

Ms. JACKSON LEE. Let us all see you so that I can be complete 

in my apology. I did not mean to disregard any of you for the experiences that you’ve had. 

Have I lost anyone? Have I not mentioned—— Mr. SCOTT. And I’d like to join in that apology. Thank you. 

Thank you for yielding. 

Ms. JACKSON LEE. Thank you. I’d be happy to be joined by the 

distinguished gentleman. 

48

Let me proceed with a line of questioning and, of course, commentary, because I believe that 236 co-sponsors of this legislation 

really evidence a sentiment in this Congress to bring people from 

different political perspectives around the question of fairness and 

the question of ensuring that our system is without question, if it 

can be, if you will, if it is above reproach. 

Mr. Logli, let me ask the question, because I did not hear your 

first answer to the Chairman’s question, what it would take. And 

I have an abbreviated period of time, so what it would take for the 

Association of District Attorneys to support this legislation—you offered two; I didn’t hear the first one, I believe. 

Mr. LOGLI. The first one was the standard to be used to bring 

about DNA post-conviction testing. 

Ms. JACKSON LEE. Okay. How would you craft a standard? 

Mr. LOGLI. We would want the standard to talk about identity 

being an issue and that the evidence to be offered by the DNA tests 

would, if that evidence is exculpatory, prove actual innocence. 

Ms. JACKSON LEE. Why do you think the bill now proves to be 

too difficult for you to operate under? 

Mr. LOGLI. The bill, right now the standard is: ID is not required 

to be an issue, identification is not required to be an issue; and 

that the evidence has scientific potential to produce new, noncumulative evidence material to the claim of the prisoner, that the prisoner did not commit the offense for which he was sentenced or another offense used at sentencing. 

That language talks about bearer materiality and the claim of 

the prisoner. We believe that the standard similar to one that is 

in Senator Feinstein’s bill, or even the standard used in Illinois, 

that talks about evidence materially relevant to the defendant’s assertion of actual innocence is important in order to provide finality 

and not to further frustrate victims. 

Ms. JACKSON LEE. Let me make this comment, and I hope that, 

as the bill makes its way through markup, we will be open-minded 

on your representation or your suggestion. I would think the second tier of that material gives us a sufficient criteria and limitation, material to the question of innocence, the question of the issue 

raised by the defendant. And I would only hope that the Association of District Attorneys would be open-minded enough, with your 

leadership, coming from Illinois, knowing that your Governor went 

the extra mile to in fact call for a moratorium on the death penalty, 

because he was so appalled at the number of innocent victims that 

were apparently on your death row. I assume that if other States 

had done the same, we would be likewise appalled. 

I think this question of—I will look at Senator Feinstein’s language. But I think the material aspect of it, in my perspective, answers the concerns and provides you with enough guidance for 

that. 

And I apologize for not being able to continue to dialogue with 

you, but let me move on to the questions that I had for Ms. 

Wilkinson, particularly in her experience in Oklahoma City, which 

most of certainly have at least media exposure to, and some closer 

than that. 

49

What is the ultimate importance or the level or degree of importance that you would attribute to competent counsel? How important is that, for it to be included in this legislation? 

Ms. WILKINSON. Well, I think along with a fair and independent 

judge, it’s the most important thing for the ultimate fairness and 

faith in the verdict. 

As you may recall, in Oklahoma City, the tragedy was of such 

a magnitude that even some victims were concerned that the Federal Government had been involved, for example, in the bombing. 

I mean, allegations that shocked those of us that have been public 

servants. 

But after you get over the shock, you realize that you have to be 

able to address all of those issues, so that everyone, not just the 

prosecutors who are working closely with the agents and the law 

enforcement personnel, believe that the defendants are guilty of the 

crime, that everyone who may not have access to all the information you do as a prosecutor believes so. 

And the way that’s done, even though it’s very frustrating at 

times when you’re a prosecutor, and all of us who have been prosecutors have sat across a table and listened to what we believe are 

frivolous motions from defense counsel. But in the end, when you’re 

experienced, like my colleagues are here at the table, you realize 

that that is very beneficial in the end, airing the concerns that the 

defendant may have or the public may have, and leading to the 

final correctness and belief in the fairness of the verdict. 

Ms. JACKSON LEE. May I, since we’re not going to have—I think 

this is the second round, and we’re not going to have a third round, 

may I just ask, what did you do to ensure that there was at least 

the competency of counsel issue taken care of in that case? The 

Nichols case is at what status right now? 

Ms. WILKINSON. The State prosecution in the Nichols case is trying to proceed, although there are some issues about the funds that 

the State has for the prosecution as well as the defense in that 

case. 

In our case, in particular, Judge Matsch was a very strong judge, 

and he didn’t give us much say. He immediately granted all of the 

defense’s requests for the counsel they needed, investigative resources, experts that they needed. But we also adopted a virtual 

open-file policy in discovery, allowing the defense to have access to 

30,000 witness reports, 550 laboratory reports, and all of the other 

evidence that we had collected. Much of it was useless in the end, 

but it provided the defense with some fodder for defending their clients. 

And I always tell the story that some of the John Doe 2 

sightings, for example, when we turned them over, the defense was 

surprised, because they were often an ex-wife who said, ‘‘You know, 

my husband looks a lot like John Doe 2.’’ [Laughter.] 

But in some of those frivolous reports were some useful items for 

a defense counsel. And by turning those over to very competent 

counsel, as we saw in the Nichols case, where Mr. Tigar and his 

colleagues were able to return at least a life sentence for Mr. Nichols, they provided a zealous defense for their client. 

Ms. JACKSON LEE. And it helped you get through the FBI citing 

of additional documentation? 

50

Ms. WILKINSON. Absolutely. And then post-conviction challenges 

we faced over the last few years. 

Ms. JACKSON LEE. Mr. Chairman—— Mr. SMITH. Thank you, Ms. Jackson Lee. 

Ms. JACKSON LEE. Mr. Chairman, one quick question—— Mr. SMITH. Ms. Jackson Lee, you’re welcome, along with other 

Members, to submit questions in writing. 

Ms. JACKSON LEE. Well, may I raise a question and then I will 

ask the question, and hopefully you’ll give it to me in writing, 

which I usually never receive. 

Mr. SMITH. Okay. 

Ms. JACKSON LEE. But in any event, let me just simply say that 

Mr. Graci mentioned the question of burden. And it was somewhat 

answered by Mr. Neufeld, and I wanted to get from him a more defined definition of what he considered a burden of having to retain, 

as I understand, the various evidence that would come into question through the DNA. And I think that’s very important for us to 

know. 

Mr. SMITH. I would hope the witnesses will answer the question 

without necessarily receiving it in writing. And If you will respond——

Ms. JACKSON LEE. Pardon me? 

Mr. SMITH [continuing]. To what the gentlewoman has suggested—— Ms. JACKSON LEE. Pardon me? 

Mr. SMITH. I was saying, I hope they will respond without necessarily receiving the question in writing, but just respond to your 

verbal question. 

Ms. JACKSON LEE. I would hope so. That’s a very important question. 

I’ll conclude by simply saying thank you. And Martin Luther 

King wrote a book, ‘‘Why We Can’t Wait,’’ and I don’t think we can 

wait in this instance. We need to pass this legislation. 

Mr. SMITH. Thank you, Ms. Jackson Lee. 

Ms. JACKSON LEE. Thank you. 

Mr. SMITH. We will end with questions by Mr. Delahunt. 

Mr. DELAHUNT. Thank you, Mr. Chairman. 

And just let me make an observation. This has truly been an outstanding panel. All of you have made a real contribution here 

today. And I’d like to just make one observation, and then pose two 

different questions. 

And the observation is directed to the comments and the concerns that Mr. Graci I think stated well in terms of federalism. And 

when I arrived here, I was shocked to learn that federalism is not 

alive and well in Washington. And I think it’s important to remember that we literally appropriate tens of billions of dollars on an annual basis that is returned to the States and to political subdivisions that are conditioned on the States complying with certain 

Federal standards, particularly in law enforcement. As a former 

prosecutor, I benefited from many of those grant applications. 

And that’s really what we’re talking about, in terms of these particular issues. This is, believe me, not an aberration. You know 

that the Chair was very much involved in the legislation dealing 

with truth in sentencing. And if the States did not adjust their own 

51

sentencing practices, there were penalties to pay. And, I would 

daresay, this is an analogous situation. 

Having said that, I also want to go to the issue of burdensome 

and finality. Within the bill, particularly as it relates to DNA, 

there’s a provision that if the Government notices a defendant and/

or his or her counsel, that there’s 180 days. There are 180 days for 

an application to be filed. If it is not filed, the State has a right 

to destroy that evidence. 

Now, all of you are seasoned practitioners. I think—I would hope 

that you would agree with what I’m going to state, which is that, 

in 180 days, in a State court proceeding, it’s a relatively short period of time. And I daresay, if this legislation passed as-is, there 

would be a protocol, which in the case of State’s Attorney Logli and 

you, Mr. Graci, as far as the attorney general’s office, there would 

be a protocol that as soon as there was a conviction and an incarceration, there would be a notice, to protect the interests of the 

State, so that the defendant would be compelled to make those decisions within a 6-month period. 

I believe that addresses the issue of finality as well as the burden that you referred to, Mr. Graci. I truly believe that. 

Now that I’ve made that observation, let me ask—I have a real 

problem with actual innocence. You know, what is the standard? Is 

it moral certainty? Beyond a reasonable doubt? To a mathematical 

conclusion? You know, actual innocence, to establish it is almost 

beyond the capacity, if you will, of human beings to determine. I 

mean, maybe someplace else outside of this planet that can be 

done. But you know, actual innocence, as opposed to the use of 

DNA and its probative value in determining whether an individual 

is innocent of a crime, is what I believe to be important. 

And why don’t I conclude by asking Mr. Neufeld to reiterate for 

us the second case of Mr. Godschalk. And in that particular case, 

what would the actual innocence mean in terms of the conclusion 

that was reached? 

Mr. NEUFELD. By the way, Mr. Logli’s definition of actual innocence was terrific if it was applied by prosecutors all over the country. The problem is that everybody, as you said, has their own definition. 

And the problem is, for instance, for Mr. Krone, he would not 

meet that definition of actual innocence because the prosecutors 

had theories of the case which would explain the saliva and the 

blood consistent with guilt. But he got the test, and then they ran 

it against the database, and that’s what gave them, to a moral certainty, the fact that he was innocent. 

In the Godschalk case in Pennsylvania, two women were raped 

about a month apart at a housing complex outside of Philadelphia. 

They gave identical descriptions of the assailant. And it seemed to 

the police that one person was responsible. 

Mr. Godschalk was picked up after a composite sketch was put 

on the television, on a tip, and he was interrogated for several 

hours, after which he made a full confession. 

He was convicted. And after he was convicted, he requested DNA 

testing. The prosecutor took the position that he was not entitled 

to DNA testing, because it could not prove his actual innocence 

52

and, frankly, because identity was not an issue because he had 

given a confession. 

He sought that DNA testing through the State courts and went 

up to the highest courts in Pennsylvania. And they said this is not 

a case of actual innocence. This is not a case where ID was an 

issue, because it was a full, detailed confession. Therefore, he is not 

entitled to DNA testing. 

Subsequently, a Federal judge found a constitutional right to 

DNA testing, ordered it, and the laboratories found that the police 

were right, one person had, in fact, committed both rapes. And they 

got a profile, airtight, on the sperm recovered from both victims. 

There was just one problem. It didn’t match Bruce Godschalk. 

And he then became exonerated. The conviction was vacated and 

the charges dismissed. 

The point is that, at each step of the way, the prosecutor said 

he’s not entitled to testing because the standard has to be actual 

innocence. 

Many of you know of the case of Earl Washington. Earl Washington was a black man convicted of raping a young, white housewife in Virginia. And what happened is, she said, ‘‘I was attacked 

by a lone black man.’’ Eventually, years later, after he was on 

death row, the DNA testing not only proved that he didn’t do it but 

also identified another perpetrator who was serving time in the 

Virginia State prisons. 

He got a pardon, but no one would apologize to him. No one 

would admit that he was actually innocent. All they would say is, 

‘‘We don’t have enough evidence to re-prosecute him beyond a reasonable doubt.’’

So the problem we have—and by the way, when I testified before 

the Virginia Crime Commission on their bill, and the Republican 

Chairman of that Committee asked the then-attorney general, 

‘‘Why do you want actual innocence?’’ And, he said, ‘‘That’s the 

standard we need.’’ The Republican Chairman then turned to the 

attorney general and said, ‘‘Would Earl Washington get testing 

under your standard?’’ And he said, ‘‘Absolutely not.’’ And the Republican Chairman of the Committee said, ‘‘Fine, then that’s not 

going to be the standard.’’ Because the whole——

Mr. DELAHUNT. I think we’ll conclude there—— [Laughter.] 

—Mr. Neufeld, with my gratitude to the panel, my gratitude to 

the Republican Chairman of the Crime Subcommittee. [Laughter.] 

And let me say this, Mr. Chairman, again, I really do think we 

have an opportunity. I really think that we can work together and 

hopefully produce a product that we’re all proud of, because, as Ms. 

Wilkinson I think eloquently said, this is not about doing the minimum; this is about America, this is about our system of justice, 

this is about the truth. 

Mr. SMITH. Thank you, Mr. Delahunt. 

And I’d like to thank the witnesses for their testimony today. It’s 

been very useful, very valuable, and we appreciate their time. 

With that, the Subcommittee stands adjourned. 

[Whereupon, at 6:01 p.m., the Subcommittee was adjourned.] 

(53)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD


Arr.eps
54


IPA.eps
55


DMC1A.eps
56


DMC1B.eps
57


DMC1C.eps
58


DMC1D.eps
59


DMC1E.eps
60


DMC2A.eps
61


DMC2B.eps
62


DMC2C.eps
63


DMC2D.eps
64


DMC3A.eps
65


DMC3B.eps
66


DMC3C.eps
67


DMC3D.eps
68


ABA1.eps
69


ABA2.eps
70


TRI.eps
71


ACU.eps
72


LCCR1.eps
73


LCCR2.eps
74


DCLett.eps
75


MJFront.eps
76


MJA.eps
77


MJB.eps
78


MJC.eps
79


MJD.eps
80


MJE.eps
81


MJF.eps
82


MJG.eps
83


MJH.eps
84


MJI.eps
85


MJJ.eps
86


MJK.eps
87


MJL.eps
88


MJM.eps
89


MJN.eps
90


MJO.eps
91


MJP.eps
92


MJQ.eps
93


MJR.eps
94


MJS.eps
95


MJ1.eps
96


MJ2.eps
97


MJ3.eps
98


MJ4.eps
99


MJ5.eps
100


MJ6.eps
101


MJ7.eps
102


MJ8.eps
103


MJ9.eps
104


MJ10.eps
105


MJ11.eps
106


MJ12.eps
107


MJ13.eps
108


MJ14.eps
109


MJ15.eps
110


MJ16.eps
111


MJ17.eps
112


MJ18.eps
113


MJ19.eps
114


MJ20.eps
115


MJ21.eps
116


MJ22.eps
117


MJ23.eps
118


MJ24.eps
119


MJ25.eps
120


MJ26.eps
121


MJ27.eps
122


MJ28.eps
123


MJ29.eps
124


MJ30.eps
125


MJ31.eps
126


MJ32.eps
127


MJ33.eps
128


MJ34.eps
129


MJ35.eps
130


MJ36.eps
131


MJ37.eps
132


MJ38.eps
133


MJ39.eps
134


MJ40.eps
135


MJ41.eps
136


MJ42.eps
137


MJ43.eps
138


MJ44.eps
139


MJ45.eps
140


MJ46.eps
141


MJ47.eps
142


MJ48.eps
143


MJ49.eps
144


MJ50.eps
145


MJ51.eps
146


MJ52.eps
147


MJ53.eps
148


MJ54.eps
149


MJ55.eps
150


MJ56.eps
151


MJ57.eps
152


MJ58.eps
153


MJ59.eps
154


MJBack.eps
155


A.eps
156


1A.eps
157


1B.eps
158


2.eps
159


3A.eps
160


3B.eps
161


3C.eps
162


4.eps
163


5A.eps
164


5B.eps
165


5C.eps
166


6.eps
167


7.eps
168


8A.eps
169


8B.eps
170


9.eps
171


10.eps
172


11.eps
173


12.eps
174


13A.eps
175


13B.eps
176


13C.eps
177


14A.eps
178


14B.eps
179


14C.eps
180


15.eps
181


16.eps
182


17.eps
183


18.eps
184


19.eps
185


20A.eps
186


20B.eps
187


21A.eps
188


21B.eps
189


22A.eps
190


22B.eps
191


23.eps
192


24.eps
193


25.eps
194


26.eps
195


27.eps
196


28.eps
197


29.eps
198


30.eps
199


31.eps
200


32.eps
201


33.eps
202

Æ


34.eps