REAUTHORIZATION OF THE INNOCENCE 

PROTECTION ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

SEPTEMBER 22, 2009 

Serial No. 111–74 

Printed for the use of the Committee on the Judiciary 

( 

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

REAUTHORIZATION OF THE INNOCENCE PROTECTION ACT 

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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

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52–410 PDF 2010

REAUTHORIZATION OF THE INNOCENCE 

PROTECTION ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

SEPTEMBER 22, 2009 

Serial No. 111–74 

Printed for the use of the Committee on the Judiciary 

( 

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

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia, Chairman 

PEDRO PIERLUISI, Puerto Rico 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

ANTHONY D. WEINER, New York 

DEBBIE WASSERMAN SCHULTZ, Florida 

MIKE QUIGLEY, Illinois 

LOUIE GOHMERT, Texas 

TED POE, Texas 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

TOM ROONEY, Florida 

BOBBY VASSAR, Chief Counsel 

CAROLINE LYNCH, Minority Counsel 

(III) 

C O N T E N T S 

SEPTEMBER 22, 2009 

Page 

OPENING STATEMENTS 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Chairman, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 1 

The Honorable Louie Gohmert, a Representative in Congress from the State 

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

Homeland Security ............................................................................................... 3 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Chairman, Committee on the Judiciary ..................... 4 

The Honorable Mike Quigley, a Representative in Congress from the State 

of Illinois, and Member, Subcommittee on Crime, Terrorism, and Homeland 

Security ................................................................................................................. 5 

WITNESSES 

Ms. Lynn Overmann, Senior Advisor, Office of Justice Programs, U.S. Department of Justice, Washington, DC 

Oral Testimony ..................................................................................................... 7 

Prepared Statement ............................................................................................. 9 

Mr. Barry C. Scheck, Co-Director and Co-Founder, The Innocence Project, 

Benjamin N. Cardozo School of Law, New York, NY 

Oral Testimony ..................................................................................................... 20 

Prepared Statement ............................................................................................. 22 

Karen A. Goodrow, Esq., Director, Division of Public Defender Services, c/ 

o McCarter & English, Hartford, CT 

Oral Testimony ..................................................................................................... 170 

Prepared Statement ............................................................................................. 174 

Mr. Peter M. Marone, Director, Virginia Department of Forensic Science, 

Richmond, VA 

Oral Testimony ..................................................................................................... 202 

Prepared Statement ............................................................................................. 206 

Mr. Stephen B. Bright, President and Senior Counsel, Southern Center for 

Human Rights, Atlanta, GA 

Oral Testimony ..................................................................................................... 213 

Prepared Statement ............................................................................................. 216 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of John F. Terzano, President, The Justice Project, submitted by the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in 

Congress from the State of Virginia, and Chairman, Subcommittee on 

Crime, Terrorism, and Homeland Security ........................................................ 256 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

H.R. 5107, the ‘‘Justice for All Act of 2004’’ .......................................................... 289 

(1) 

REAUTHORIZATION OF THE INNOCENCE 

PROTECTION ACT 

TUESDAY, SEPTEMBER 22, 2009 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:30 p.m., in room 

2141, Rayburn House Office Building, the Honorable Robert C. 

‘‘Bobby’’ Scott (Chairman of the Subcommittee) presiding. 

Present: Representatives Scott, Conyers, Cohen, Quigley, and 

Gohmert. 

Staff Present: (Majority) Jesselyn McCurdy, Counsel; Karen 

Wilkinson, Fellow, Federal Public Defender Office Detailee; Ron 

LeGrand, Counsel; Veronica Eligan, Professional Staff Member; 

(Minority) Caroline Lynch, Counsel; and Robert Woldt, FBI 

Detailee. 

Mr. SCOTT. The Innocence Protection Act, a part of the Justice 

for All Act of 2004, is set to expire on September 30, 2009. There 

is currently no pending legislation for reauthorization of the IPA. 

Today we will hear testimony about issues surrounding the actual, specifically the issues that have developed during its implementation and what we have done to address those problems. The 

Post-Conviction DNA Testing Grant Program and the Capital Representation Improvement Grant Program are also going to be considered. 

Now, the Bloodsworth Grants Program authorizes the Attorney 

General to grant funding for States for post-conviction DNA testing 

to help ascertain whether individuals have been wrongly convicted. 

The Innocence Project reports that to date there have been 242 

post-conviction exonerations through DNA testing in the United 

States, spanning 34 States. Seventeen of the 242 exonerees were on 

death row, and true suspects and/or perpetrators have been identified in 104 of the DNA exoneration cases. The average length of 

time served by exonerees is 12 years. Total number of years served 

is approximately 3,019. The average age of exonerees at the time 

of their wrongful conviction was 26. 

The most recent exoneree is Mr. Kenneth Ireland, who is with 

us here today. Mr. Ireland spent 21 years in prison wrongfully convicted of rape and murder of a female factory worker and mother 

of four until DNA testing of crucial evidence excluded him as a conVerDate Aug 31 2005 10:53 May 05, 2010 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\092209\52410.000 HJUD1 PsN: 52410
2 

tributor of the DNA specimen. To date the actual murderer has not 

been identified. 

The success of post-conviction DNA is evident by the exonerations it has yielded and has the potential to exonerate what is estimated to be hundreds more who are wrongly convicted. Initially, 

post-conviction DNA testing under the Bloodsworth Grant Program 

was seriously underutilized due to unattainable standards for 

grant applications. Congress had funded a total of $5 million per 

year for the grants for fiscal years 2005 to 2009, but the funds were 

not distributed until fiscal year 2008. We learned that statutory 

language in the act had set the evidence retention standards for 

authorizing the grants so high as to make it almost impossible for 

any State to qualify. Only three States, Virginia, Connecticut and 

Arizona, had applied for the grants in the first cycle, but none were 

successful. 

We eventually corrected the problem through appropriations language, but it is disappointing to know that such a technical problem went as long as it did before correction, given that the lives 

and freedom of wrongfully convicted people hung in the balance. 

For fiscal year 2008 Congress appropriated an additional $4.8 million and asserted a temporary change in the statutory language 

that OJP suggested so that applicant States would be able to meet 

the requirements for grant under the Innocence Protection Act. Thus, $11.8 million became available along with the new temporary language intended to facilitate the grant post-conviction 

DNA testing funds. I understand that five States have applied for 

those grants, and I am looking forward to hearing testimony about 

whether the new standard achieved the desired outcome for those 

applications. I also look forward to working with my colleagues to 

determine whether or not the temporary language inserted into the 

fiscal year 2008 should be made permanent or whether we should 

make other corrections in the law. 

DNA technology has given us the means to identify the wrongly 

convicted. We now have the responsibility to use those means. DNA 

testing has indeed been an invaluable tool for ensuring that the 

guilty are identified beyond a reasonable doubt, and that the 

wrongfully accused and convicted are cleared of suspicion with 

their reputations restored. 

However, like any tool, it is only successful to the extent to which 

it is employed. We will hear today from some of those most qualified to provide insights and suggestions as to ways of correcting 

any remaining problems in the act and both the Bloodsworth grant 

and the Innocence Protection act generally. 

We will also hear testimony about the Capital Defense Improvement Grants Program. Part of the Innocence Protection Act, section 

421 of the act, authorizes the U.S. Attorney General to provide 

grants to States for the purpose of establishing, implementing, or 

improving an effective system for providing competent legal representation of indigent defendants in capital cases. In like manner, 

section 422 provides for grants of an equal amount to be awarded 

to prosecutors at the same time in order to enhance their ability 

to represent the public in State capital cases. Neither of these 

grant programs permit the funds to be used directly or indirectly 

for the representation or prosecution of specific capital cases. EsVerDate Aug 31 2005 10:53 May 05, 2010 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\092209\52410.000 HJUD1 PsN: 52410
3 

sentially the funds are limited to training and support for both defenders and prosecutors. 

While this type of grant program represents a departure from 

the historic trend of Federal funding going solely to State prosecution, some of the indigent defense advocate community have complained that this equitable grant requirement of the program does 

little, if anything, to decrease the disparity between the indigent 

defense and prosecution functions in State capital cases. 

Every State has a funded competent prosecution structure in 

place. The same is not true for indigent defense. There are States 

like Connecticut and North Carolina that have funded, organized 

indigent defenders or Public Defender systems. Then there are others. 

In a briefing paper submitted to the Committee earlier this year, 

a coalition of advocates comprised of the ACLU, the Brennan Center for Justice, the Constitution Project, the Innocence Project, and 

the NAACP Legal Defense and Education Fund, and others declared that, and I quote, the indigent defense services in the United 

States are in a state of perpetual crisis. In 1999, a Department of 

Justice report concluded that indigent defense was in a chronic 

state of crisis. 

So everybody agrees that indigent defense, as a whole, needs 

more funding. Studies clearly show that lack of adequate funding 

has led to crushing caseloads, insufficient pay for defense attorneys, lack of proper training and oversight of defense attorneys, insufficient funding for investigators, experts and mental health professionals, lack of independence by defense and, ultimately, the 

wrongful conviction of the innocent. 

In Texas, six people have been executed without any habeas corpus review because their lawyers missed the statute of limitations. 

Three of the six were represented by the same lawyer. The lawyer 

falsely claimed that he tried to file, but the time stamp machine 

at the courthouse was broken. It was not. Believe it or not, the lawyer is still practicing; is currently representing over 400 people accused of crimes. 

Many States have been either unwilling or unable to adequately 

fund and administer indigent defense systems. Instead the judiciary is permitted to inject itself into the defense function, forcing attorneys to carry excessive caseloads, failing to provide attorneys 

with investigators, experts and support services they need to uphold the basic responsibilities of adequate representation, neglecting to provide any type of meaningful supervision to hold lawyers 

accountable for less than zealous representation, and failing to 

make available ongoing training to keep attorneys abreast of ever 

evolving criminal justice sciences. These poorly administered and 

underfunded systems compromise the ability of lawyers employed 

by or under contract with those systems to meet their constitutional and ethical obligations to their clients. 

So I look forward to hearing from our witnesses on the progress 

with the implementation of the Innocence Protection Act. And now 

it is my pleasure to recognize the esteemed Ranking Member of the 

Subcommittee, the gentleman from Texas, Judge Gohmert. 

Mr. GOHMERT. Thank you, Chairman Scott. I do appreciate the 

holding of this hearing on the reauthorization of Kirk Bloodsworth 

4 

Post-Conviction DNA Testing Program in the capital case litigation 

initiative, both of which were authorized by the Innocence Protection Act of 2004. President Bush announced his DNA initiative in 

2003 to provide funds and attention to the areas of DNA backlog 

issues, post-conviction testing and capacity enhancement. He did so 

with the understanding that the responsible and timely use of DNA 

technology would serve the interests of justice in courtrooms and 

communities throughout this country. 

I point this out because all too often our forensic capabilities, 

particularly post-conviction DNA testing, is portrayed as a left or 

right issue. Nothing could be farther from the truth. We should be 

about seeking justice regardless of party or position on the political 

spectrum. From its outset, the DNA initiative sought to harness 

DNA’s tremendous potential to simultaneously serve victims, aid 

law enforcement and protect the innocent. Today, 44 States and the 

Federal Government provide for post-conviction DNA testing where 

circumstances dictate, many modeled on Federal legislation requiring the post-conviction retention of biological samples and providing for testing upon legitimate claims of innocence. 

A little over a year ago the Department of Justice had received 

just eight grant applicants in 4 years of the Kirk Bloodsworth program, with only five grant awards, all in fiscal year 2008. At that 

time, I asked the Department why this program was being underutilized. Today that number has grown to 18 applicant States and 

14 grant recipients. While the progress is notable, it is just as important for Congress to understand what is behind these numbers 

as it was when only five States applied for grants. 

With 44 States providing for post-conviction DNA testing, and 

the public outcry each time even a single person is exonerated 

through the use of DNA, it is obvious that these numbers don’t add 

up, particularly in light of Congress’s efforts to make the program 

language less restrictive in 2008. Given these facts, I am curious 

why only 18 States have applied, and I look forward to hearing our 

panel’s views on what the future of this program holds, how we 

might improve it, and whether or not more needs to be done. And 

I do thank you for being here because I know the pay is not all 

that good since it is zero. But we do appreciate your being here 

today and look forward to your input. 

Thank you. 

Mr. SCOTT. Thank you. The gentleman from Michigan, the Chairman of the full Committee, Mr. Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. I congratulate you and 

Judge Gohmert on this hearing because it is so important. The 

amount of injustice that is going on in the criminal justice system 

is criminal. I mean, it is really so bad and it has been going on so 

long that people are getting kind of used to it; like that is just the 

way it is; there is nothing that can be done about it. And this hearing is a statement that there are some of us who think that there 

is something that can be done about it. 

Attorney Diana Oo was with me in Angola prison in Louisiana. 

We were visiting three inmates. No, two inmates, one had been released somehow. But they were all sentenced to life imprisonment 

in solitary confinement. That means you get out 1 hour a day every 

day for exercise or the yard, and that is it. You go back into soliVerDate Aug 31 2005 10:53 May 05, 2010 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\092209\52410.000 HJUD1 PsN: 52410
5 

tary confinement. And what did the prisoners do there? Well, we 

went to one place where they were building their own coffins. How 

do you like that for training on the job? 

And so I come to this as one who has had a lot of problems with 

this. There is a University of Michigan study that documented that 

many of the people that were found innocent served an average of 

10 years in prison before release. The number of false convictions 

can possibly be in the tens of thousands in the United States of 

America. So we have got a big job on our hands. I have been meeting with the Michigan public defenders and they tell me about, 

that they can’t get reimbursed even anywhere near adequately to 

compensate for what they would have to do to put on a halfway decent defense. So it is not good. And pro bono is not all that high 

either. There are some low numbers there. 

So, Mr. Chairman, Judge Gohmert, this is where the rubber hits 

the road in the whole idea of justice because—and I don’t want to 

start any class warfare, but it is only the people without any income that have to have public defenders, that have to have pro 

bono, have to have young lawyers assigned cases that fall asleep 

or forget to—how could you have a case and forget that there is a 

limitation period on the appeal that could be the difference between whether a person is executed or not? 

This is the beginning of an incredibly enormously important 

hearing, and I commend you both. 

Mr. SCOTT. The gentleman has time remaining. Were you going 

to yield time to the gentleman from—— 

Mr. CONYERS. Quigley? Never. No, nothing for Quigley. Well, 

okay. 

Mr. QUIGLEY. Thank you, Mr. Chairman and Mr. Chairman. And 

I just want to focus on what the Ranking Member discussed, and 

that was the issues of justice here. For what it is worth, a 10-year 

veteran of 26 in California and Chicago as a criminal defense attorney, I had a ringside seat to the inequities that exist. And from my 

own home State, Illinois, the record is a sad one. We have exonerated, which I guess is the good news, more people on death row 

than we have executed. But it is a sorry record of the initial convictions. 

In addition, a good friend of mine is the Public Defender of Cook 

County now, former Judge A.C. Cunningham. Earlier this year, he 

was within a day of withdrawing from all their capital cases because their entire amount of funding from the State of Illinois was 

going to be cut off. So for those who think this is a problem from 

a while ago and DNA has cured it, it is simply not the case. It is 

extraordinary to watch this. 

And when I left 26th Street I was elected as a Cook County Commissioner. My first task was to help settle a case called the Ford 

Heights four, wildly notorious, where we found four people who 

were innocent guilty. They were put on death row. One was within 

days of being executed. And if I can’t strike at the hearts of those 

who don’t like this sort of thing, I would remind them that we settled for $36 million, something which sadly takes place all too often 

in our country. 

So I appreciate the indulgence of the Chairman, and our panelists’ time and effort. Thank you. 

6 

Mr. SCOTT. Thank you. We will you now introduce our panelists. 

The first witness is Ms. Lynn Overmann, Senior Advisor, Office of 

Justice Programs, with the U.S. Department of Justice. Ms. 

Overmann is an alumni of Bryn Mawr College and New York University School of Law. Immediately prior to coming to the Justice 

Department in May of this year, she was in private practice. Prior 

to that she served as Assistant Public Defender with the MiamiDade Public Defender’s Office. 

Our second witness will be Barry Scheck, who is a Professor of 

Law At Benjamin Cardozo School of Law in New York. He and his 

colleague, Peter Neufeld, co-founded and co-direct the Innocence 

Project, an independent, nonprofit organization that is closely affiliated with the law school which uses DNA evidence to exonerate the 

wrongly convicted. In 17 years of existence the project has either 

represented or assisted the representation of the vast majority of 

the 242 individuals who have been exonerated through post-conviction testing. And Mr. Scheck and Mr. Neufeld were moving forces 

in getting the Innocence Protection Act initially passed. 

Third witness is Karen Goodrow, who is the Director of the Connecticut Innocence Project, a unit within the Public Defender services of the State of Connecticut. She is an alumni of Western New 

England College School of Law, and has worked primarily in the 

public sector. 2006, she used the post-conviction DNA testing. 

Through the use of post-conviction DNA testing she and attorney 

Brian Carlow secured the release of James Calvin Tillman, a gentleman who served 181⁄2 in prison for crimes he did not commit. 

Has also represented Mr. Miguel Roman and Mr. Kenneth Ireland, 

both of whom were exonerated through post-conviction DNA testing 

after having been incarcerated in excess of 20 years. 

Next witness is Peter Marone, Director of the Commonwealth of 

Virginia Department of Forensic Sciences, and I am proud to introduce him because Virginia has a reputation of being in the forefront of DNA testing. I believe the first conviction for DNA testing 

was in Virginia. If it wasn’t the first it was one of the first. It was 

the first? 

Mr. MARONE. One of the first. 

Mr. SCOTT. One of the first and we have been in the forefront, 

his department has been in the forefront of forensic sciences for 

many years. He graduated from the University of Pittsburgh with 

both bachelor’s and master’s degrees in chemistry, and he was appointed Director of the Virginia Department of Forensic Science in 

February 2007. He is a member of numerous professional forensic 

science organizations. 

And finally Steven Bright is President and Senior Counsel of the 

Southern Center for Human Rights in Atlanta, teaches at Yale and 

Georgetown Law Schools. His work at the center has included representatives of people facing death penalty trials and appeals in 

the State and Federal courts, class action lawsuits to remedy 

human rights violations in prisons and jails and challenges to inadequate representation provided to poor people accused of crimes. 

He has received the American Bar Association’s Thurgood Marshall 

Award in 1998, named news maker of the year in 2003 for his contributions in bringing about the creation of a Public Defender system in Georgia, and he received the Defense Lawyers Lifetime 

7 

Achievement Award from the National Association of Criminal Defense Lawyers in 2008. 

Each witness’s written testimony will be entered into the record 

in its entirety, and I would ask each witness to summarize his or 

her testimony in 5 minutes or less. To help stay within that time 

limit there is a device on the table. It will start green, turn to yellow when you have approximately a minute to go, and it will turn 

red when your 5 minutes have expired. 

Ms. Overmann. 

TESTIMONY OF LYNN OVERMANN, SENIOR ADVISOR, OFFICE 

OF JUSTICE PROGRAMS, U.S. DEPARTMENT OF JUSTICE, 

WASHINGTON, DC 

Ms. OVERMANN. Mr. Chairman, Ranking Member Gohmert, and 

Members of the Subcommittee, I am pleased to have the opportunity to discuss the Department of Justice’s efforts to implement 

the Innocence Protection Act of 2004. We appreciate the Subcommittee’s interest in this matter. 

During a recent speech to the American Council of Chief Defenders, U.S. Attorney General Holder renewed the Department’s commitment to improve the quality of indigent defense. In his speech, 

the Attorney General candidly acknowledged that there is a crisis 

in indigent defense in this country. Resources for Public Defender 

programs lag far behind other justice system programs, constituting only about 3 percent of all criminal justice expenditures in 

some of our Nation’s largest counties. We know that defenders in 

many jurisdictions carry huge caseloads that make it difficult for 

them to fulfill their legal and ethical responsibilities to their clients. 

Our challenge is to ensure that the accused have a competent defense and that, in the event that an innocent person is convicted, 

that person will ultimately be exonerated. 

At the Office of Justice Programs, or OJP, we understand that 

this challenge is not new. As a result, OJP has taken several steps 

to address this issue. We have multiple initiatives covering both 

our National Institute of Justice, or NIJ, and our Bureau of Justice 

Assistance, BJA. 

NIJ administers the Kirk Bloodsworth Post-Conviction DNA 

Testing Grant Program. The program helps States defray the costs 

associated with post-conviction DNA testing of rape, murder, and 

nonnegligent manslaughter cases. To date, NIJ has awarded over 

$17.6 million to 14 States through this program. Fiscal year 2009 

is the second year that NIJ awarded Bloodsworth grants. In fiscal 

year 2008 five States applied for and received awards totaling over 

$7.8 million. This year NIJ received 13 applications and awarded 

grants to nine States for a total of more than $9.8 million. 

All of the funds appropriated for this program from fiscal year 

2006 through fiscal year 2009 have now been awarded. I am aware 

that there have been concerns about the delay in awarding these 

funds. I have addressed the reasons for this delay in my written 

testimony. But I wanted to highlight some of the steps OJP took 

to help address the problem. 

In fiscal year 2008, OJP worked closely with the House and Senate Appropriations Committees to ease the statutory requirements 

8 

that presented problems with awarding the Bloodsworth funds. In 

both fiscal year 2008 and fiscal year 2009, NIJ conducted extensive 

outreach to ensure that key State and local government officials, as 

well as forensic professionals, were aware of the program to help 

encourage even more applications in fiscal year 2009. These efforts 

included a post-conviction symposium with practitioners from 46 

States. We are pleased that this outreach helped lead to the increase in applications in fiscal year 2009 and the resulting increase 

in awards this year. We plan to continue to seek input from the 

field in the future. 

Although the Bloodsworth program may have gotten off to a slow 

start, we are confident that it is now moving in the right direction. 

We look forward to continuing to work with Congress to ensure 

that contingent on funding availability the program continues to 

grow. 

Another key OJP effort is the Capital Case Litigation Initiative, 

or CCLI, which BJA established in fiscal year 2005. CCLI is a partnership to create specialized training for trial judges, State and 

local defense counsel, and prosecutors who litigate death penalty 

cases. In fiscal year 2009 BJA focused CCLI funding on making 

available high quality training on a competitive basis to capital 

case litigators in States that demonstrate the greatest need. By the 

end of September, BJA will have awarded more than 1.8 million in 

funding to eight States. Per the Innocence Protection Act, funding 

is split equally between prosecutor and defense purposes. BJA’s 

goal with CCLI remains ensuring that the limited funds available 

are used in the most productive ways possible to improve justice 

for all. 

OJP’s support for indigent defense and exoneration initiatives 

goes beyond the programs established by the Innocence Protection 

Act. In fiscal year 2009 BJA initiated two new programs. One program focuses on improving the functioning of the criminal justice 

system and includes funding for indigent defenders. The second 

program, the Wrongful Prosecution Review Program, provides 

funding to nonprofit organizations and Public Defender offices dedicated to exonerating the innocent. 

We are also planning a National Indigent Defense Conference, 

which will be held February here in Washington. Public defenders 

from each state will be invited to bring with them a key state 

stakeholder to help foster collaboration within the States. 

Finally, the Attorney General has convened a working group 

within the Department of Justice to address the ways the Department can work with our State and local partners to help improve 

indigent defense services. Please be assured that Attorney General 

Holder, the Department of Justice, and OJP in particular are committed to working with our State, local, and tribal partners to protect innocent people who are wrongfully convicted. 

We are also committed to working with Congress on this issue. 

As the Attorney General recently said, when a system breaks down 

we all lose. 

This concludes my statement, Mr. Chairman. Thank you for the 

opportunity to testify today. I welcome the opportunity to answer 

any questions the Subcommittee may have. 

[The prepared statement of Ms. Overmann follows:] 

9 

PREPARED STATEMENT OF LYNN OVERMANN


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Mr. SCOTT. Thank you very much. 

Mr. Scheck. 

TESTIMONY OF BARRY C. SCHECK, CO-DIRECTOR AND COFOUNDER, THE INNOCENCE PROJECT, BENJAMIN N. 

CARDOZO SCHOOL OF LAW, NEW YORK, NY 

Mr. SCHECK. First I would like to thank Chairman Scott, Ranking Member Gohmert and, of course, Chairman Conyers. I will 

never forget going to Angola prison, and you should note that Herman Wallace’s Federal habeas—Albert Woodfox’s Federal habeas 

application has been granted by the district court since we were 

there. It is now on appeal to the, Fifth Circuit, and I am hopeful 

that he will be exonerated. 

I would like to get right to the point because we have put in extensive testimony, and we are indebted to this Committee because 

you were able to get changes in the appropriation language so we 

could open up that Bloodsworth money. 

But I would like to go back to the very beginning. And if you look 

at the Justice for All Act, there were actually three other provisions aside from 412, which is Bloodsworth, but there were three 

other provisions: section 303 that dealt with DNA training and 

education for law enforcement, correction personnel, and court officers; section 305, DNA research and development; section 308, 

DNA identification of missing persons. And originally, all of those 

provisions were supposed to be tied to section 413, which required 

that each State come up with schemes for evidence preservation, 

and that they also pass a post-conviction DNA statute that was 

comparable to the Federal act. 

When the Bush administration began implementing the Justice 

for All Act, it appropriated by itself, with the President’s initiative, 

monies for 303, 305 and 308, and detached it from 413. And most 

of the money is in 303, 305 and 308. And as Ms. Overmann and 

I were discussing, a lot of that money actually goes toward services 

that crime labs use to preserve evidence and for administration. So 

our proposal very, very simply is, number one, when you reauthorize this act, put section 413 requirements on 303, 305 and 308. 

Now, as far as those evidence preservation requirements are concerned, obviously the changes made in the appropriations language 

were very helpful in opening up the money. But, as Mr. Marone 

and I were talking before the hearing, we at the Innocence Project 

recognize as we go from State to State that we have to be completely realistic about what States can do in terms of preserving 

evidence. And so what we are proposing now is that there ought 

to be a national working group on evidence preservation that can 

come up with some good and realistic schemes and definitions, 

things, requirements that the States can meet. We don’t want 

States not to get money under 303, 305, 308, much less the 

Bloodsworth Act, by being unable to meet overly stringent and unrealistic evidence preservation requirements. But those should be 

in place for everyone’s sake. 

We included, you know, just as atmospherics, a chart in our testimony here detailing exonerees in each jurisdiction of every Member of this Committee, where there had been what I would like to 

call an Innocence Project trifecta, a DNA exoneration, a DNA data 

21 

*On December 15, 2000, 11 months after his death, and 14 years after his 1986 conviction, 

Frank Lee Smith was exonerated based on exculpatory DNA testing results. 

bank hit, and an innocent perpetrator apprehended. And when we 

calculated these numbers, in terms of the number of—I am sorry— 

exoneration of an innocent, a data bank hit on the real perpetrator, 

and the subsequent prosecution of that real perpetrator. And we 

were very careful. 

For those friends of ours in Florida, there is one case here, Jerry 

Frank Townsend and Frank Lee Smith. Frank Lee Smith was sentenced to death, was on death row. He died when the DNA exonerated him.* Jerry Frank Townsend, who collected $4 million yesterday in Florida courts in a compensation case, pled guilty as a mentally retarded man to eight rape murders that he didn’t commit. 

And all of those crimes, Frank Lee Smith’s crime, when he was 

convicted, and Jerry Frank Townsend were committed by one man, 

Eddie Lee Moseley. And law enforcement officials in the Florida 

and Dade County area believe that Eddie Lee Moseley committed 

62 rapes and murders for which he was not apprehended while 

these two people are in jail, one of them on death row. 

Now, the Innocence Project’s cases that Bloodsworth addresses 

are really cold cases. And if evidence preservation requirements are 

put into place, police can also, in an expeditious way, solve cold 

cases. So this is helping everyone. And that is why you should extend 413 requirements across the board to all categories. 

Two other simple fixes that we think would help this legislation, 

and it has to do with the Federal Post-Conviction DNA Act. We believe that there ought to be a provision in the act, common sense, 

that a Federal district court judge and hopefully the States will 

begin to apply this as well, on an application from a defense lawyer, either before the trial or after the trial, where there has been 

a DNA profile created by a CODIS approved laboratory, a judge on 

a showing of good cause or in the interest of justice can order that 

profile run in the CODIS data bank to get a hit. Unfortunately, in 

some instances we have run into situations in States where police 

or prosecutors will not run DNA profiles from crime scenes in the 

data bank, either before the trial or after the trial. And we need 

judges to have the authority to order that when necessary in certain cases. It is just common sense. And that is something that 

should be added, as well as a slight definition. 

In the Federal Act, they say that you have to show that, quote, 

identity was at issue in your trial. And some have construed this 

to mean that if somebody gave a confession, then identity wasn’t 

at issue. And I don’t have to tell this panel the number of cases 

where DNA exonerations have proven that there were false confessions. There is just too many of them to even go into, whether it 

be Earl Washington in Virginia or Eddie Joe Lloyd in Michigan, or 

Chris Achoa in Texas, just to name a few, or God knows how many 

in Illinois, Mr. Quigley. 

Those are my remarks. 

[The prepared statement of Mr. Scheck follows:] 

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PREPARED STATEMENT OF BARRY C. SCHECK


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Mr. SCOTT. Thank you. 

Ms. Goodrow. 

TESTIMONY OF KAREN A. GOODROW, ESQ., DIRECTOR, DIVISION OF PUBLIC DEFENDER SERVICES, c/o McCARTER & 

ENGLISH, HARTFORD, CT 

Ms. GOODROW. Thank you for having us here today. My name is 

Karen Goodrow. I am the Director of the Connecticut Innocence 


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Project. In Connecticut we are part of the Public Defender Services 

Division, so we are a unit of the Public Defender’s Office. 

Present with me is Ricky Ireland. Kenneth is his formal name, 

but we call him Ricky. And he has been out since August 5, I think 

he can tell us the number of days, 2009, after post-conviction DNA 

testing established his innocence. He was exonerated on August 19, 

2009, when all of the charges were dismissed. He was convicted of 

killing Barbara Pelkey, a mother of four, during the Labor Day 

Weekend of 1986. The case was cold for a couple of years and he 

was arrested on August 11, 1988, spent the first year or so in a 

county jail and then, after trial, was convicted just a day, we calculated earlier in the cafeteria, the day after his 20th birthday, 

where he has been until just a few short weeks ago. 

The amazing story—I know you have heard and read about these 

stories all the time. The amazing thing is getting up at 5 in the 

morning to hopefully make my son’s lunch, you know, before I get 

out the door to pick Ricky up. He lives about 40 minutes from me. 

And I am thinking, 6 or 7 weeks ago I was visiting Ricky at the 

prison where he had been. We had been delivering news to him 

that, yes, the DNA evidence establishes what we always knew, that 

you are innocent, and the other two people that were never arrested that the State believed committed this offense, they are not 

on that DNA either. And we were discussing that with Ricky. 

I don’t think he is concerned that I am going to tell you this. And 

he just didn’t believe, A, that that was the evidence, B, that this 

was going to get him anywhere, because after all we are public defenders. We are part of the same State system that got him in this 

place. And after some time we said, you know, you are going to be 

going to court, Ricky. And I said you are going to have to work 

with us here because they are not going to take you back to the 

prison. Once the judge grants the petition for new trial based on 

the DNA evidence and you are ordered released you are not going 

to be coming back here. 

And we joke about that a little bit, just to tell you and to demonstrate the level, the level of despair for these men and women 

who are innocent and have been convicted and every step along the 

way they have been shot down. At trial he was convicted. He was 

represented by a public defender. The appellate court said nope, 

this conviction is solid. There is sufficient evidence to hold this up. 

The habeas court, he went through a number of different lawyers, 

one of whom was ultimately disbarred. 

This is in Connecticut where, frankly, you probably know this already. In Connecticut they like to think that we don’t make mistakes. Horrible mistakes happen. Sometime around August of 2004, 

if we can go back just about 5 years before Ricky was released, the 

chief public defender in Connecticut went to a conference and they 

were talking about innocence stuff and I think Barry and/or Peter 

were there. And he came back and he said, you know, we should 

start an Innocence Project in Connecticut. But we didn’t have any 

extra funds, so he asked me and Brian Carlow would we cochair 

this project while we ran courthouses anyway and just cobble together maybe a few hours once or twice a week to work on innocence cases. 

172 

So that is how we breathed life into an Innocence Project in Connecticut. We obviously had lots of help from our friends in New 

York. Barry, specifically, Rebecca, who is here, and Steve and others. And then somewhere around February of 2006 the law firm of 

McCarter & English, just on a pro bono basis said, gee, you need 

some space. You don’t have any funding. Here. You can live here 

with us. So they have housed us and provided pro bono assistance 

since that time. 

Right around 2006 we applied for that cycle of Bloodsworth 

money. And my understanding was that Connecticut and Arizona 

and a third State that I have lost in my brain, were the only three 

to apply, and that only Arizona and Connecticut were eligible. For 

reasons that are still not clear to me today the money was not 

granted. 

There is no question in my mind that Mr. Ireland could have 

been released earlier had we had those additional funds because, 

remember that at that point, we had not received our State funding 

yet. We were still literally going around with a box in our hand 

that said in red magic marker, CTIP, Connecticut Innocence 

Project. 

In June of 2006, still underfunded by the state, but with the help 

of our friends from New York and the help of our friends from 

McCarter and the help of the Public Defender’s Office, we managed 

to get testing for Mr. Tillman. And Mr. Tillman was released on 

June 6, 2006 after spending 181⁄2 years in prison for a rape that 

he didn’t commit. Mr. Tillman was compensated in the amount of 

$5 million the following year by the State legislature. There was, 

at that point, no compensation statute, but they passed a special 

act for him. 

Then we received our funding from the State and it is about less than $500,000. And that covers me, a second lawyer, a secretary, 

and an investigator. And of course we don’t have to pay for our offices because we are getting that pro bono, thank goodness, from 

the law firm. 

In November of 2008, Mr. Roman, who served approximately 

191⁄2 years in prison for a murder he did not commit, was released 

based on post-conviction DNA testing. And I am confident again 

that had there been money in place prior in 2006, Mr. Roman 

would have gotten out earlier. Mr. Roman was exonerated in April 

of 2009 when the charges were dismissed. 

And that brings us to August with Mr. Ireland, when the postconviction testing established his innocence. 

I can’t tell you how critical it is the decision that is about to be 

made in terms of continuing this funding. These are real live individuals and, unfortunately, the people certainly in the Public Defender’s Office who are doing this work, are doing the best they can 

do, but we need assistance as well. And I am very concerned about 

some of the States where they don’t have the kind of support that 

I have. I recognize that I am running a very fortunate shop. But 

there are many people out there in many projects that need to have 

this funding. I would just urge you to continue. 

One thing, to follow up with what Barry said on the importance 

of evidence preservation, we have been very lucky in Connecticut 

and I think part of that luck, frankly, is that we are a small State 

173 

geographically. We have only one State forensic lab. That is the lab 

I tend to use with my cases because I like them and they do good 

work, which is not to say that we couldn’t hire privately if we 

wished to. But we have a very small State and we have good relationships. And I have been doing this work for about 25 years. I 

think I was 10 when I started. About 25 years. And we all know 

each other and I can call the lab and say, gee, you know, any luck 

with that CODIS search, and they are very collaborative, very cooperative. In each one of these cases we had the full cooperation 

of the State’s Attorney, the forensics lab, and the Police Department. I also understand that that is not the norm. But in terms 

of evidence preservation, the key physical evidence that exonerated 

Mr. Tillman was a dress and stockings from the rape victim that 

had been put into evidence at the courthouse at the time of the 

trial and subsequently, during a habeas proceeding, was sent to a 

private DNA lab that then went under. That evidence was ultimately found at the habeas lawyer’s archives. It should have been 

sent back to the clerk’s office where it came from. That was the 

order of the court. But because it was sent there under the old 

technology and there wasn’t any real result the first time around, 

nobody—I think, I am filling in the blanks, but I am guessing that 

nobody thought this evidence was very important. And that is 

where it ended up. Yet, because of the diligent people at Legal Aid 

of Hartford, they were able to finally find that evidence. We were 

able to establish the chain of custody and have it tested. 

Same situation with Mr. Roman. For a while, we understood the 

evidence wasn’t to be found. This was key ligatures used to bind 

and strangle the victim that were in the possession of the Police 

Department in Hartford and at first they couldn’t find them. Then, 

with more tracking, they were able to find them because they were 

kept in a separate place than they originally thought. Again, Mr. 

Roman spent nearly 20 years in prison. 

With regard to Mr. Ireland’s case, the evidence essentially was 

found where it was believed to be found, or was believed to be, 

however, without getting into too much detail I will tell you that 

there were some mysteries attached to that evidence as well. 

So it is critical that the Federal Government give the States 

some guidance as to the appropriate way to preserve the evidence. 

And my understanding is that is something that can occur through 

this grant process. 

Thank you. 

[The prepared statement of Ms. Goodrow follows:] 

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PREPARED STATEMENT OF KAREN A. GOODROW


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ATTACHMENTS 


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Mr. SCOTT. Thank you. And Mr. Marone. 

TESTIMONY OF PETER M. MARONE, DIRECTOR, VIRGINIA 

DEPARTMENT OF FORENSIC SCIENCE, RICHMOND, VA 

Mr. MARONE. Thank you, Mr. Chairman, Ranking Member 

Gohmert, Chairman Conyers, Members of the Committee. Thank 

you for inviting me to speak. I am Peter Marone, the Director of 

the Virginia Department of Forensic Science. 

One of the issues I want to address, and there is two, is obviously the reauthorization of the Bloodsworth Post-Conviction ProVerDate Aug 31 2005 10:53 May 05, 2010 Jkt 000000 PO 00000 Frm 00208 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\092209\52410.000 HJUD1 PsN: 52410

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gram. And it is a long story, but it gets to the point, so bear with 

me. 

On September 30th, 2004, after the existence of cuttings that 

were retained in our case files were discovered, Governor Warner 

directed the Virginia Department of—then Division, now Department of Forensic Science to review 10 percent of the cases from 

1973 to 1988. These are the time periods when we had an examiner who had a habit, she liked to use them for demonstrative purposes during court, literally took the analysis ends when she was 

doing absorption solution testing for ABO, she literally took the 

cuttings that were left, normally people threw them away, and 

scotch taped them to her case file. Now we don’t do that because 

of biohazards and everything else, but she was doing that then. 

There was nothing to prohibit it then. 

At any rate, she took those biological samples but no DNA analysis was done on them or had been previously conducted on them. 

And the Governor said, I want you to look for those samples, take 

a 10 percent sampling. At the time we thought it was 600 boxes 

of case cells because there was no automated LIM system to keep 

track of them, roughly a little over 100,000 files. We had to look 

through them one by one to see whether it was a firearms case, a 

drug case, and so forth, and first to see if there was biological evidence there. And he said okay. Biological evidence, a named suspect, find out if that suspect has been convicted. And we started 

off with sexual assault. So those were the original primary criteria 

that we had. 

The purpose of that review was to locate these data and find out 

whether or not we could come up with any results of it. The original review resulted in 31 cases that we sent on for testing. Again, 

it was a pilot project. We hand picked those cases to make sure we 

had cases where there was obviously a significant amount of material left over. Among the original 31 cases tested, a suspect was 

found not to be the contributor of the foreign DNA source in six 

cases. Of those six cases, four of the listed suspects were found to 

have been properly convicted. This was something that we didn’t 

do. The prosecutors and so forth followed up on it. Cases, for example, where the prosecutor said yes, looking at the whole case, we 

don’t expect to find him there. He was the individual holding her 

down while the other individuals were doing the act. So, you know, 

properly convicted. 

At each one of those steps when we had to look first to see if the 

individual was convicted, and we went to the prosecutors, the State 

police, the individual police departments, and the clerk’s offices to 

find out that conviction data, I can’t tell you the cooperation we 

got. I can’t express the cooperation we got from all levels of law enforcement and judiciary. I mean, a lot of people think that people 

are hesitant to drag up the skeletons and such. We didn’t find that 

to be the case. Everybody was falling all over themselves to help 

with this project. 

Of the two individuals who were found to actually be eliminated, 

we call them eliminated, the judicial system does the exoneration 

process. One of these two individual cases originated in Alexandria, 

resulted in the identification of another individual who has since 

been convicted. Given the results of that 10 percent review, DFS 

204 

recommended and the Governor concurred that a complete search 

of the remaining 90 percent of such case files would be subjected 

to DNA testing. What we originally thought was 160,000 case files 

from that 10 percent sampling, we realized that this individual had 

worked cases from other laboratories in our system, and we looked 

at 600 boxes of files, 534,000 case files, all checked page by page 

by hand. 

To make a long story short, we identified about 3,000 cases with 

biological evidence. Twenty-two hundred of those cases had a 

named suspect, and 800 cases were identified where we had evidence, a named suspect, and that person had been convicted of that 

crime. 

Currently, we have issued about 144 reports on those. It is a long 

process just to identify them and now we are in the reporting out 

phase. 

But I give that as an example. We had a starting point. We knew 

which cases were involved because we knew which cases had biological evidence. We had a case number, we had a jurisdiction. The 

problem that we are dealing with nationwide is if you don’t have 

anecdotal information, somebody remembers the case, or the Innocence Project has taken it on as a research project, or the defendant specifically requests it, people don’t have a place to start. They 

have no way of identifying these cases. And that is the problem. 

Certainly, that symposium, the post-conviction symposium went 

into a training program to bring these issues up and to enlighten 

folks, and that has helped a lot, but it is not the end of it. 

The issue of evidence handling certainly is an important issue, 

and it has actually acted, as we can see, as a punitive measure to 

getting these funds. I would hesitate to say we need to do that 

same thing for the other methods of funding. What I would suggest 

is, say, if you are going to do that, we are going to place these restrictions on it and but we going to do it in a couple of years so 

get ready for it so you can prepare for it and not make it punitive. 

In other words, you will shut everything down if you do it that 

way. We need to be realistic about how we impose these criteria. 

Another issue I would like to address is the selection of the types 

of cases for eligibility for post-conviction testing. Right now the current categories are murder, nonnegligent manslaughter, and forcible rape. When you look at it, different States put these crimes 

into different categories and it is a crime reporting aspect of it and 

it is not necessarily the true aspect of the case. What I would recommend is broaden that terminology to be violent cases against a 

person. And it is a uniform reporting, but what it does is where 

this particular category of murder, nonnegligent manslaughter, and 

forcible rape excludes some sexual assaults that aren’t counted in 

here. But the violent crimes against person would be included. If 

we are going to do it, let’s do it right and make it a little bit broader. 

Mr. Chairman, I cannot express enough how truly dedicated laboratory staffs are, prosecutors, police departments, nobody wants 

the wrong person in jail. Nobody wants the person wrongfully incarcerated. We have seen nothing other than just positive, positive 

response from the law enforcement community. 

205 

Thank you for your consideration, and I am open to any questions people have. 

[The prepared statement of Mr. Marone follows:] 

206 

PREPARED STATEMENT OF PETER M. MARONE


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Mr. SCOTT. Thank you. 

Mr. Bright. 

TESTIMONY OF STEPHEN B. BRIGHT, PRESIDENT AND SENIOR 

COUNSEL, SOUTHERN CENTER FOR HUMAN RIGHTS, ATLANTA, GA 

Mr. BRIGHT. Mr. Chairman, thank you very much. Mr. Chairman, Judge Gohmert, Chairman Conyers, Members of the Committee, it is an honor, as always, to be before this Committee. And 

Mr. Chairman, I want to take up with what you addressed in the 

last part of your statement. 

Many people think that DNA testing is the silver bullet that is 

going to protect us from ever convicting an innocent person. But of 

course only about 20 percent of the cases have biological evidence 

in them that is going to provide material for testing. And to get to 

what you mentioned, Mr. Chairman, what is going to be required 

is competent legal representation. And as you pointed out, every 

State has prosecutors offices, every State has organized prosecutors 

offices by judicial district. And my, in a nutshell, testimony to this 

Committee is that in many jurisdictions we don’t have a system of 

indigent defense. There is no program there at all. It is an absolute 

nonsystem. And the result of that is that innocent people, the most 

basic protection against convicting innocent people is competent 

legal representation and a working adversary system. And yet, we 

have in places in this country no system at all, individual, sole lawyers appointed to cases who may not even defend—specialized in 

criminal cases. 

The Supreme Court will take up next month a death penalty 

case in which the penalty phase was handed by a person 5 months 

into practice. Now, the Constitution says you can’t execute mentally retarded people. But you can execute mentally retarded people if the jury doesn’t know the person was mentally retarded. And 

the jury didn’t know it in that case because the lawyers didn’t go 

right there to the schoolhouse, right there in the town and talk to 

the teachers who would have said he was educatably mentally retarded. His IQ was 66. They didn’t talk to any of the people who 

would have documented that. 

We know from the New Yorker article that came out just recently that a man was convicted and executed in Texas because the 

lawyers representing him had no idea how to defend an arson case. 

The lawyers on post-conviction who represented him had no idea 

how to defend an arson case. They didn’t know when that witness 

testified that the glass had this pattern on it and that showed 

there had been an accelerant that actually the reason the pattern 

was on there was because the glass was hot and when the water 

hit it when they were putting out the fire it made the pattern. 

There was another person convicted of an almost identical arson, 

a fellow named Ernest Ray Willis, who was represented by a good 

law firm that had the resources to actually have the forensic experts and the fire consultants look at the evidence and put on the 

testimony to show what happened, and he is free. And as we see 

so often, Members of the Committee, if you switch the lawyers, you 

switch the outcomes in the two cases. One man gets executed. One 

man goes free. 

214 

I filed a brief earlier this month on behalf of a man that 31⁄2

years he has been waiting for a trial on a death penalty case. For 

over 2 years there was no money to fund his case, absolutely no 

money. Another person, Stacey Sims in Georgia, gets appointed in 

2005 a lawyer in his death penalty case. A year and half later the 

lawyer says we haven’t been paid. So the judge let’s them withdraw 

and appoints two more lawyers. Last December they said we 

haven’t been paid. So he allows them to withdraw. Three years 

now. The man has been facing the death penalty for 3 years. And 

so far there hasn’t been one penny spent for even his defense lawyers to go to the jail and counsel him, to interview him. 

Now, what kind of adversary system is this when one side, the 

prosecution is fully funded, has its lawyers, has its law enforcement officials, has all the people necessary, and on the other side 

we don’t have any funding for even the most basic, just so the client can talk to his lawyer about the situation that he is in. We 

have one district of five counties in Georgia that went for a whole 

year without providing lawyers to people in conflict cases. It was 

like the 1950’s, like Gideon v. Wainwright had never been decided, 

felony cases in which people didn’t have lawyers. And the judges 

there, three judges who had taken an oath to uphold the Constitution of the United States, processing people through the courts who 

don’t have lawyers. 

In Alabama, as I pointed out in my statement, we had one lawyer file a brief that all it was was the dissent, Justice Ginsburg’s 

dissent in the Baze case about lethal injection. It had absolutely 

nothing to do with the case before the Court. No issue in the case. 

It wouldn’t have helped the client anyway. Lethal injection has 

been decided. Another client whose lawyer just abandoned them 

mid case. 

We have the Texas cases where lawyers have filed briefs from 

previous years where they have talked about previous cases in the 

brief that had absolutely nothing to do with the case before the 

Court. They have mentioned witnesses who were from a case 71⁄2

years old in their brief, and I must say I can’t for the life of me 

understand why any court would accept a brief like that in a case. 

As you mentioned, Mr. Chairman, six people have missed the 

statute of limitations. Three more have also missed it and are waiting to be executed in Texas, three of those represented by the same 

lawyer, who should have been disbarred after the first time. 

What I am saying, just to—I see my time has run—it is going 

to take a lot more than training. It is going to take an acknowledgment of how great the failure is in this area and the need to build 

programs in the places where we don’t have them and to say that 

we cannot continue to tolerate lawyers who continually miss the 

statute of limitations. And to provide both requirements but also 

to come up with some funding mechanism to recognize the fact that 

the Federal grants that have been going to the State prosecutors 

and law enforcement over the last years is one reason why the system is so out of balance and that something has to be done if we 

are going to say we have an adversarial system. 

If we want to switch to an inquisitional system, then that is a 

whole ’nother question. But if we say we are going to have an adversary system, if we are going to keep the slogan Equal Justice 

215 

Under Law over the Supreme Court building, then we really need 

to deal with this with a great deal of urgency. 

Because what we have in our courts right now is an absolute disgrace to our legal profession and to our country, and it is a violation of our Constitution. It is happening on an ongoing basis, and 

there is an urgent need for the Congress and the Justice Department and the States and the bar associations to do something 

about it. 

Thank you. 

[The prepared statement of Mr. Bright follows:] 

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PREPARED STATEMENT OF STEPHEN B. BRIGHT


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Mr. SCOTT. Thank you. I thank all of our witnesses for your testimony, and now we will begin with panelists asking questions. 


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First, Ms. Overmann, I think I mentioned 11.8. I added my numbers up again. I think it was 9.8. And is that all of the money 

available this year has been allocated, as I understand it? 

Ms. OVERMANN. Yes. We have—all of the accumulated funds 

starting in 2006 have now gone out. So we have spent all of the 

funds that were appropriated. 

Mr. SCOTT. Mr. Scheck, you have indicated that we will need to 

run these cases through the DNA databank if the profile has already been done. What is the cost of running it through the 

databank after the profile has already been done? 

Mr. SCHECK. I would have to consult with the FBI for the exact 

costs, but I think it is virtually nothing. I mean, it is literally—if 

it is a CODIS-eligible profile, that is, by a laboratory that has met 

the standards of the CODIS system, it is literally an issue of somebody in a State or local laboratory putting that into the system and 

seeing if it hits another offender. 

Mr. SCOTT. The cost is doing the profiling to begin with. 

Mr. SCHECK. That is right. It costs nothing, I guess you could 

say. 

Mr. SCOTT. Ms. Goodrow, you indicated it took a long time to get 

these tests. Why did it take so long? And if you had enough money, 

how soon could those tests have been run for Mr. Ireland and the 

others? 

Ms. GOODROW. Part of the issue with Mr. Ireland’s case was that 

it came to us approximately 2 years prior. So his case came to us 

prior to us—about 8 or 9 months prior to us getting the State funding. When we applied in 2006, I think at least in theory, had we 

had those funds, we could have worked on the case full time. I was 

not able to work full time on the Connecticut Innocence Project 

cases until we got our funding in the summer of 2007. I had a real 

job, if you will, a full-time position with the State as a public defender. So this Innocence Project work we were doing, Mr. Carlow 

and I, part time as we could. That was part of the issue. 

Mr. SCOTT. So there are a lot of cases languishing for just lack 

of staffing? 

Ms. GOODROW. There were. Presently, I would echo the comments of Attorney Bright, most of our cases that we are looking at 

are actually not DNA-determinative cases. I would say that the 

percentage—we have an ongoing approximately 80 to 100 cases 

that we are regularly looking at. They are at some phase of the review process. And the large majority of those, I would venture to 

say more than 90 percent, are nonDNA-determinative cases. 

Mr. SCOTT. Mr. Marone, when you went back and looked at all 

of those cases, I didn’t get a good sense of what the percentage of 

wrongful convictions was, those where you had—you just went and 

found that there was evidence, and you went to test to see if the 

right person had been convicted. 

Mr. MARONE. Right. If you are going to look at the statistics— 

and I don’t know that it would be a valid jump to make—if we have 

800 cases, we are looking at two or three. You know, when we are 

finished, there may be a few more. But I don’t know that that puts 

the appropriate handle on it. On the other hand, you know, if you 

have got one, to me that is too many. 

244 

Mr. SCOTT. What would be the cost to preserve evidence, as this 

technician had done, to just preserve evidence in cases so 10, 20 

years from now, at least while the person is incarcerated, the evidence is there? How much would that cost your system? 

Mr. MARONE. Unfortunately—and I am not trying to evade your 

answer. Unfortunately, the way she preserved it would not be the 

way we would preserve it properly. What we are looking at is you 

would probably have a long-term space paperwork issue. Right 

now, Virginia has that retention, but the retention of a particular 

case is only done after the litigation is finished. And all the defendant really has to do is request that it be stored. If they don’t request it, we don’t store it. But on capital cases it is automatically 

stored. 

And, right now, quite honestly, for us the cost is so low we are 

just absorbing it. I would think, you know, you are looking at minimal cost. That cost is going to increase, depending upon the volume 

that you have. But it is a few hundred dollars per case. And, again, 

as the number goes, then you have to start looking at increased 

storage and so forth. But it wouldn’t be that much. It is more of 

a logistical issue than a cost issue. 

Mr. SCOTT. Then why shouldn’t we, as Mr. Scheck has suggested, 

condition grants on fixing the preservation of evidence? 

Mr. MARONE. I don’t have a problem with doing that. But like 

what happened with the post-conviction testing, you put in place 

a requirement that nobody knows is coming, and you don’t have 

time to prepare for it. Therefore, nobody is eligible for it. So I am 

saying, if you want to do that, that is fine, but let people know you 

are going to have to prepare for this. And if you expect to get the 

funding, you should be prepared to do it in the future. It is like you 

are trying to do things retroactively, and that is just not right. 

Mr. SCHECK. Mr. Marone and I are in complete agreement on 

this. The proposal we are making about conditioning, I guess it is 

305, 308, and 302, if I have the numbers correct. On the 413 evidence preservation requirement, it should be essentially grandfathered in after there is a national working group that can help 

set up these definitions. Because I think we are in agreement you 

don’t want to have it so strict that people feel I have to preserve 

everything. 

And, on the other hand, we have to have intelligent preservation 

systems. I mean, in the Virginia case what is amazing is that, as 

you know, this analyst, Mary Jane Burton—— 

Mr. MARONE. Mary Jane Burton. 

Mr. SCHECK [continuing]. She was just stapling these things on 

the written serology reports. And we were trying to get Marvin Anderson out of jail; and Paul Ferrara, Mr. Marone’s predecessor, was 

saying, well, I can’t find it. I can’t find it. And he said, oh, I am 

going to go back and look. And he looked at the actual written reports, and then we found all this stuff. 

Now, if we had Laboratory Improvement Management Systems, 

LIMS systems, like they have, for example, in North Carolina— 

they have done a great job in Charlotte, literally bar coding the evidence as it comes in—you would be able to keep track of the evidence in old cases, cold cases. We could tie the evidence to the acVerDate Aug 31 2005 10:53 May 05, 2010 Jkt 000000 PO 00000 Frm 00250 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\092209\52410.000 HJUD1 PsN: 52410
245 

tual court cases. Because, you know, what often happens is we 

have to go back and try to find the cases. 

Let’s say we had a bad analyst who was doing a bad job and we 

have to do an audit of their cases. We can’t tie the lab cases often 

to the court cases around the country. 

So much can be done now if we give an incentive to the States 

with Federal assistance to really professionalize—and Mr. Marone 

can be one of the people to tell you exactly how to do it—the laboratory systems. It is really good for every party in law enforcement and the overall improvement of the system. It is really, in 

some ways, what the President is doing with laboratory medical 

records. You know, why not discovery in the criminal justice system? Why not forensic lab data? Why shouldn’t all of this essentially be coded, electronic, and easily available? We can do that in 

this society. 

Mr. SCOTT. Thank you. 

Judge Gohmert. 

Mr. GOHMERT. Thank you again, Chairman. 

Well, just following up on that, Mr. Scheck, you and Mr. Marone 

suggest that there ought to be a couple years anyway to give States 

a chance if we are going to add the requirements. And in your testimony it was 303, 305, 308, 303 being DNA training and education 

for law enforcement, correctional personnel, and court officers; 305, 

DNA research and development; 308, DNA identification of missing 

persons. Do you see a problem if we gave a couple of years to allow 

States to be prepared to move into those requirements? 

Mr. SCHECK. No, not at all. And I think the way that could be 

done is if you just reauthorize the Justice for All Act the way it 

was originally passed, with 413 as the condition precedent to the 

funding of these other pots of money, so to speak. And you can either do that directly, you know, in the bill, put the moratorium in, 

or there could really be—Justice Department could help with that 

just the way they did before in the appropriation language. Because I think everybody agrees on what that process ought to be 

and how it could work. 

And I want to point out, just because it is Texas, I mean, everybody looks at Dallas, because in Dallas we have more DNA exonerations than any State except for New York and Illinois. Just one 

city. And it is not because the criminal justice system is worse in 

Dallas. It is because we can find the evidence in Dallas. That is it. 

And if we were able to find the evidence in other jurisdictions, you 

know, in the future, this technology improves. So it is really important to do this in a professional and intelligent way. 

Mr. GOHMERT. Mr. Bright had mentioned that about 20 percent 

of the cases have biological evidence that could be tested for DNA, 

as I understood you to quote the statistics. Is that right, Mr. 

Bright? Isn’t that what you quoted? 

Mr. BRIGHT. That was my estimate. 

Mr. SCHECK. Actually, I think it is 10 percent. 

Mr. GOHMERT. You think it is closer to 10? 

Mr. SCHECK. Yeah. 

Mr. GOHMERT. Is that because of the fact there just isn’t the biological evidence to be found, or would it be more than that if there 

were additional training for the law enforcement? 

246 

Mr. MARONE. No, sir. It is actually 10 percent of all the case 

work that laboratories get is DNA. 

Mr. GOHMERT. Oh, I see. 

Mr. MARONE. Ten percent of them are applicable to DNA. And 

that one particular case might have DNA, it might have latent fingerprint, it might be firearms, whatever. 

I would like to take the opportunity, while I have the mike, to 

clarify a little bit what Mr. Scheck saying. I am not necessarily totally agreeing with a panel to come up with—although I think evidence retention is a good idea, I am saying if you choose to tie it 

to the other ones, which I can see that going bad—— 

Mr. GOHMERT. I understand. You are not advocating that. You 

are saying, if we are going to do that, at least give us—— 

Mr. MARONE. And the other problem with that is the evidence is 

retained at localities. There is going to be a significant—at the 

State level, there is going to be a significant issue with communication as to who is going to store it. Is it going to be stored at the 

State level or the locality level or so forth. 

But, for example, I can see if it goes through, for my purposes, 

and it ends up with all the evidence at every stage is going to have 

to be retained by my laboratory, now we are talking about significant numbers. Now we are talking about logistical issues and costs. 

Mr. SCHECK. And that shouldn’t happen. In other words, as we 

go across the country and try to enforce this evidence preservation 

requirement with the States, we completely believe—— 

Mr. GOHMERT. We might need to spend some of that money on 

microphones. 

Mr. SCHECK [continuing]. We completely believe that what you 

want with the localities, with the States, because each State has 

completely different systems—— 

Mr. GOHMERT. And I know there has been a number of references to lawyers who miss filing deadlines, and that is abominable. When that happens, some lawyer has not met his requirements. 

But I also have to say I have heard attorneys talk about if you 

really believe the death penalty is wrong and you don’t have anything else, then why not set up, you know, the blame on yourself 

and pull it down on yourself in order to give your guy a chance to 

blame you for bad lawyering. And that gives him another shot. I 

have heard that discussed. 

And I have to state that I have even brought up the issue in 

court at the bench to attorneys. If you are trying to set up some 

kind of record for ineffective assistance, then you are headed for 

trouble yourself. You do the best you can or you are not going to 

be on this case anymore. 

So I have gotten that impression. I have heard people talk about 

it. And sometimes I wonder. I know most lawyers, they are just 

going to do the best job they can. But sometimes there are those 

who feel so strongly against the death penalty that they are willing 

to commit some type of alleged malpractice just to give their client 

a chance to raise that on appeal. 

Mr. BRIGHT. You know that is interesting, Judge. I have been 

litigating capital cases since 1979, about 30 years. I have never 

once encountered that. So that is very interesting. 

247 

Mr. GOHMERT. I wouldn’t expect that you ever would. 

Mr. BRIGHT. Well, I have litigated a lot of ineffective assistance 

of counsel cases, and I have litigated them against a lot of really 

bad lawyers. And most of the cases, what I have found is lawyers 

who have failed to do investigations and who have not known what 

was going on. I have actually cross-examined lawyers who have not 

been able to name a single Supreme Court case, for example. But 

all those lawyers have claimed that they made tactical decisions or 

strategic decisions, and what their goal was was to defeat the claim 

of ineffective assistance, even though those assertions were preposterous, because it was clear that they weren’t in a position to make 

a strategic decision because they hadn’t done any investigation on 

which to make a strategic decision on. 

And certainly missing the statute of limitations, that kills your 

client. Those people in Texas that have been executed where they 

missed the statute of limitations, if those lawyers did that on purpose, I don’t know what their point was. In my view, the first time 

that happened, those lawyers—that lawyer should have been disbarred. And the fact that he—— 

Mr. GOHMERT. You and I are in complete agreement. 

Mr. BRIGHT. The fact that he would be assigned a second case 

and then a third case and that he is still practicing law right now 

and has, you know, a huge caseload—— 

Mr. GOHMERT. You are right. I agree with you. One should have 

done it. 

Mr. BRIGHT. It is just hard to imagine what judge or how the bar 

association there would tolerate that. 

Mr. GOHMERT. Well, I sat in on some—I presided over some disbarment cases, and I was surprised at the deals that got cut, because I took a much harder line on those things than apparently 

the bar did, those cases that were brought before me. But, anyway, 

thank you. 

Mr. SCOTT. The gentleman from Michigan, the Chairman of the 

full Committee, Mr. Conyers. 

Mr. CONYERS. Thank you, Chairman Scott and Judge. We appreciate this hearing and its significance. 

I would like to ask unanimous consent that Mr. Ricky Ireland be 

permitted to respond to a question or two or to say something. 

Mr. SCOTT. Without objection. 

Mr. CONYERS. Hello, Mr. Ireland. 

Mr. IRELAND. How are you? 

Mr. CONYERS. Pretty good. This is a pretty important hearing, 

isn’t it? 

Mr. IRELAND. Yes, it is a very important hearing. I agree. 

Mr. CONYERS. A lot of people being affected by this, aren’t they? 

Mr. IRELAND. There are. There are a lot of people being affected. 

A lot of people that are still inside that need a chance to be proven 

innocent. 

Mr. CONYERS. What would you tell a concerned congressional 

Committee that they ought to do to change what you know about 

all the people that have suffered miscarriages of justice? 

Mr. IRELAND. I believe the funding and the support of the Innocence Project is of the utmost importance. I spent 21 years inside; 

and prison is a horrible, horrible place. Nobody wants to be there. 

248 

And there are people in there that are innocent. And 21 years between the ages of 18 to 40 is what I spent in there. 

Are there any more vital years than them years? I don’t have a 

family. I don’t have any means for support. I don’t have nest egg 

socked away, no job skills. You know, that was all taken from me. 

And so when the Innocence Project contacted me and took my 

case, it was like a ray of hope for me. And it was like the first ray 

of hope, you know, in my entire time in. And so I know there is 

other people in there. Statistically, there has to be other people in 

there that are innocent. And the fact that had there been funding 

earlier for the Connecticut Innocence Project then I would have 

been out earlier, a significant time earlier, you know, it kind of 

hurts me. 

Mr. CONYERS. Well, we thank you for coming out. 

Do you have a job? 

Mr. IRELAND. Yes, I am employed now. 

Mr. CONYERS. Great. 

Mr. IRELAND. Thank you. 

Mr. CONYERS. I wish you the very best—— 

Mr. IRELAND. I appreciate it. 

Mr. CONYERS [continuing]. In the future. And I hope that you 

keep working with some of us in the Congress, in the practice of 

law, in public service, and just citizens in general that all feel very 

much the same way you do about what is happening to so many 

other people in America. 

Mr. IRELAND. Thank you. I fully support the Innocence Project, 

and I am here to champion their cause. And in any way—any Innocence Project in any State, any way that they can use me or utilize 

me, I am willing to help. 

Mr. CONYERS. That is great. I will be calling you. 

I want to thank all these witnesses, too, Chairman Scott, but I 

wanted to ask Ms. Overmann a question. You did some kind of 

work like this as a lawyer yourself in Florida. 

Ms. OVERMANN. I was a public defender for 5 years. 

Mr. CONYERS. Pretty lousy system there, too, isn’t it? 

Ms. OVERMANN. We certainly suffered from excessive caseloads. 

Mr. CONYERS. And maybe that is why you got in this job, as a 

matter of fact. That probably stood out in your resume. 

Now all the funds are spent. So that means that hundreds of 

thousands of people are going to be disenfranchised. 

Ms. OVERMANN. In some States. I believe it is down to eight 

States that automatically disenfranchise people with felony convictions. But I believe Florida is one of those that continues that practice. 

Mr. CONYERS. Well, I meant the funds that are being used to 

help remedy the situation that brings us here. If the funds are all 

spent, there is no more to go around. Most States are mostly in the 

red anyway. 

Ms. OVERMANN. Well, I do believe that we have requested additional funding in the President’s budget to continue providing funding under the Bloodsworth program. 

And I also wanted to highlight one of our new cases that we have 

provided $3 million for, which is specifically geared toward InnoVerDate Aug 31 2005 10:53 May 05, 2010 Jkt 000000 PO 00000 Frm 00254 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\092209\52410.000 HJUD1 PsN: 52410
249 

cence Projects. It addresses several of the issues that were raised 

here today by Mr. Bright and also by Mr. Ireland. 

This funding is specifically provided to Innocence Projects not 

based on DNA testing but recognizing that a significant portion of 

post-conviction cases are cases that don’t involve DNA testing, and 

those cases require extraordinary amounts of time and effort by defenders to reinvestigate. And our goal of the initiative was to provide quality representation to the wrongfully convicted to help alleviate some of the burdens placed on criminal justice systems from 

these post-conviction litigation efforts and hopefully to help identify, when possible, the actual perpetrator. So we have tried to 

work as closely as we can with the field to find out their needs and 

address them where we can. 

Mr. CONYERS. Well, that is very sentimental. 

May I have unanimous consent for some more time? 

Mr. SCOTT. The gentleman is recognized, without objection, for 

two additional minutes. Is there objection? Two additional minutes. 

Mr. COHEN. Three minutes. 

Mr. CONYERS. See, here is the problem. Eric Holder, an experienced lawyer, Judge, now Attorney General, there are some that 

say that this is going to be his biggest challenge, his biggest test 

as Attorney General. Is he going to let this unchecked system that 

judges, lawyers, Congressmen, citizens—are we just going to say, 

well, Congress wouldn’t give us any more money, so that is—what 

can we do? This is the way the system works. When they want 

more money for wars or military, nobody has any problem getting 

that. So you have a huge responsibility, because this is going to be 

on Eric Holder, not on you. Do you put out any reports throughout 

the year about where we are on this thing that you do? 

Ms. OVERMANN. Well, we certainly internally, for our grant management, get progress reports from our grantees. 

Mr. CONYERS. No, we want public reports. 

Ms. OVERMANN. I don’t know if we actually specifically address 

the Innocence Protection Act. I don’t believe that that was part of 

the legislation, but I can certainly check and get back to you on 

that. 

Mr. CONYERS. Well, we want to get some reports. We want to 

make up some reports so that we can figure out where we are on 

this. We may not see you again for the rest of the year. 

Ms. OVERMANN. I am always happy to come back when invited. 

And I do want to stress the Attorney General has made it very 

clear to all of us in the Department, and he has announced 

this—— 

Mr. CONYERS. He hasn’t made it clear to the Congress. He hasn’t 

made it clear to me. 

Ms. OVERMANN [continuing]. Is a priority for this department. 

Mr. CONYERS. He hasn’t made it clear to this Committee. 

Ms. OVERMANN. We have worked with what we could in this first 

year of the Administration to provide funding. 

Mr. CONYERS. I know. I gave you all the brownie points in the 

Rayburn Building. But that doesn’t get it. Sentiments. We are all 

as sentimental as we can be. Now, I just want you to understand 

that this is not just a little afternoon hearing. 

250 

Now, Pete Marone, Mr. Marone, I just calculated this, I was 

practicing law when you were graduating from school. 

Mr. MARONE. That is a long time, sir. 

Mr. CONYERS. Here is the problem. You said that nobody wants 

anybody in that shouldn’t be in. What are those numbers about police? You said that, didn’t you? 

Mr. MARONE. Yes, sir. 

Mr. CONYERS. How did you know that? What led you to that conclusion? 

Mr. MARONE. Well, it is my personal experience, and the folks 

that we have been involved with, whether they be prosecutors or 

law enforcement, when we have asked them to cooperate on these 

issues, nobody has said no. They have done whatever they can do 

to help us expedite the matter. Now, under that context, that is 

what I am saying. That has been my experience, that nobody has 

said, no, we are not going to help. 

Mr. CONYERS. That is just you have met a lot of nice people that 

makes you think that nobody would want this miscarriage of justice to go on. 

Mr. MARONE. In my experience, sir, I found nobody to be uncooperative. 

Mr. CONYERS. Well, you haven’t talked to—how many of the 

837,000 law enforcement officers have you talked to about this 

problem? 

Mr. MARONE. I can only say I have talked to those people who 

have been involved in these cases. 

Mr. CONYERS. Okay. How many judges have you talked to about 

this problem? 

Mr. MARONE. A few dozen in Virginia. 

Mr. CONYERS. How many lawyers have you talked to about this 

problem? 

Mr. MARONE. Several hundred. 

Mr. CONYERS. And everybody feels real bad about this. But she 

has run out of money. This is the first hearing I can ever remember being held in the Judiciary Committee, and you know how long 

I have been here, so somebody doesn’t give a damn, or there are 

some somebodies that all feel it is too bad, you know. I don’t believe that nobody wants these people to all be set free. And you do. 

Mr. MARONE. Again, in my experience—— 

Mr. CONYERS. Yeah. 

Mr. MARONE. I will give you an example. 

Mr. CONYERS. Okay. 

Mr. MARONE. There has been at least two instances I specifically 

know where prosecutors, once they determined that that individual 

was improperly convicted, didn’t wait for the process to send it 

back to the defense counsel. They literally went to the judge and 

started the process going on their own. I don’t see that as somebody being just sentimental. 

Mr. CONYERS. Let me ask you this. Have you ever heard of police 

that framed people and sent them to jail? 

Mr. MARONE. I have heard, yes, sir; and I am not arguing that 

point. 

Mr. CONYERS. Oh, Okay. 

Mr. MARONE. What I am saying is, in my experience—— 

251 

Mr. CONYERS. Let me ask you this. Have you ever heard of prosecutors that knew they had the wrong people and they prosecuted? 

Ireland, have you? 

Mr. IRELAND. I know of many cases. 

Mr. CONYERS. Have you? 

Mr. MARONE. I have heard of them. 

Again, I couched my response—— 

Mr. CONYERS. I know what you couched your response in. All I 

am saying to you, my friend, is that I have files of cases of police 

misconduct, prosecutorial misconduct, judicial misconduct, and it 

wasn’t accidental. 

So, you know, this let’s all get together and say this is a terrible 

thing and it is too bad we don’t have any money and we are in 

hard times, I just—you know how long I have been here. I have 

heard all the gasps and the tears and the sympathy and all that, 

but it still goes on. And, right now, we are only dealing with a 

small part of it. 

Now, what lawyer here doesn’t know that the first job a lawyer 

gets, if he is trying to get started in practice, is you are assigned 

a criminal case for a hundred bucks, maybe 50. I forgot how—but 

they know you don’t know any criminal law because you just 

passed the bar. And they want you to plead guilty anyway. They 

don’t even expect you to do a trial. Your job is to talk the defendant 

into taking a plea. As a matter of fact, if you don’t, you might not 

get any more assignments. Right, Judge? 

Mr. GOHMERT. Not in my court. 

Mr. CONYERS. No, not in your court, no. But I mean they don’t 

want somebody coming in and playing Clarence Darrow, do they, 

Attorney Bright? A trial by jury, are you out of your mind, attorney 

of 6 months? 

So, Mr. Chairman and Judge Gohmert, I think we ought to meet 

with the Attorney General on this subject. And we can determine 

how we can do that without the presence of all these fine witnesses. And I am sure glad that they are all here and that you held 

this hearing. 

Mr. SCOTT. Thank you. I have just a couple other questions. 

Ms. Overmann, did I understand you to say that eight States disenfranchise people upon conviction of a felony? 

Ms. OVERMANN. I am speaking out of school, but I know that 

there are still States when you are talking about voting disenfranchisement and eligibility for certain State contracting licenses. But 

this is not, obviously, the topic of the hearing. 

Mr. SCOTT. Okay. Because I think there may be eight or so that 

do it permanently, but almost all of them there is certainly disenfranchisement upon conviction. 

There is a suggestion that we kind of reinstate the condition, the 

413 conditions, evidence preservation as a condition of other 

grants, and we kind of phase it in. Will you be able to work with 

Mr. Scheck and Mr. Marone and Mr. Bright and Ms. Goodrow to 

make a recommendation as to what we should do legislatively? 

Ms. OVERMANN. Certainly. We always look forward to working 

with our partners in the field, and I believe that our OJP works 

very closely with Mr. Scheck very frequently. And I believe Ms. 

Goodrow also learned today that she is going to be one of our new 

252 

grantees. So we will be working with her in that capacity. I know 

Mr. Bright has either met with or will be meeting with the Attorney General shortly. So we are very actively engaged in listening 

to the field to get their input. And, of course, we are always happy 

to work with Congress. 

Mr. SCOTT. Okay. And, Mr. Bright, you indicated that, for purposes of nonpayment, people would drop out of several cases, it 

sounded like, sequentially—— 

Mr. BRIGHT. Yes. 

Mr. SCOTT [continuing]. After a certain length of time. Have you 

permanently denied a person the right to a fair trial if their lawyer 

is coming in so late that the evidence is no longer available? 

Mr. BRIGHT. Well, that is the appeal that I have raised. Because 

I think that if you deny somebody a lawyer during the critical time 

pretrial, you deny them the ability to prepare, the ability to investigate and all that until the trail is cold. 

As I said, what kind of adversary system is this? One side is 

fully geared up, ready to go, has full-time people, and the other 

side is completely held back. And then all of a sudden you say, 

well, here is some money; come try the case in a couple of months. 

I think that is a violation of any notion of due process, fairness, or 

an adversary system. 

And that is the appeal that I just filed. And I have asked the 

Justice Department to file an amicus brief just on the question of 

the denial of the right to counsel. I think the denial of the right 

to counsel pretrial for over 2 years, it is unprecedented in my experience that somebody would be denied in a death penalty case. You 

might not have much of a counsel, but usually you at least have 

some sort of token representation prior to trial. 

This is no representation at all. This is none whatsoever. And it 

is happening. It is basically the pattern in Georgia, because there 

is not any money there. So it is sort of a shell game that is played 

in which money is not available. 

If I were these lawyers in the Sims case, I wouldn’t have moved 

to withdraw. I would have moved to dismiss the case. Because I 

think the Utah Supreme Court pointed out here recently that the 

State should either provide the money to defend the case or it 

should dismiss the death penalty. If they want the death penalty, 

then pony up the money to defend the case. Because that is part 

of the constitutional requirement, is that there has got to be the 

defense. But, unfortunately, some jurisdictions want to do it on the 

cheap. And, unfortunately, the judiciary, unfortunately, doesn’t always stand up and say, if we are going to do this, we are going 

to do it as the Constitution requires, with a lawyer and with the 

expert witnesses and the investigation that is required in order to 

have a fair trial. 

Mr. SCOTT. Thank you. 

And, finally, Mr. Scheck, of the people that come to you claiming 

evidence for which there is DNA available evidence, what portion 

are found to be, in fact, innocent? 

Mr. SCHECK. That is the incredible part. That is the most astonishing statistic at all. 

Mr. SCOTT. Can you bring your mike a little closer to you? 

Mr. SCHECK. Yeah. 

253 

Mr. SCOTT. Okay. 

Mr. SCHECK. That is the most remarkable part of all, that by the 

time we go through the cases and see if there is evidence that we 

can test—you know, many people claim innocence, but we can’t 

find the evidence. It is lost or destroyed. You know, the numbers 

change over time. In the last few years, we found half of them the 

DNA results are favorable. I mean, it changes, but it has been running between 40 and 60 percent. So that is—— 

Mr. SCOTT. Of people that claim to be innocent, if there is evidence that can be checked, 40 to 60 percent are found to be actually innocent? 

Mr. SCHECK. Yeah, between that—in that time period. The results turn out in their favor. And it usually results in either the 

real perpetrator being found or the case being dismissed. 

I would like to address, if I may, just for a minute, you know, 

we have done all this work proving people innocent with DNA testing. The Innocence Protection Act was passed in part because everybody realized the importance of this technology. But it is, as we 

have all told you, only 10 percent of the cases. And what about 

those other 90 percent of the cases? That is what we have really 

learned from DNA evidence. 

And I have to say that I have worked with Mr. Marone and his 

predecessor, I find lots of prosecutors and law enforcement officials 

who are really interested in getting to the bottom of it. But I must 

say over the last 17 years I have met quite a number, Pete, that 

have resisted this, irrationally, and people who have covered it up. 

And there have been lots of cases where there have been, you 

know, documented instances of criminal and ethical misconduct. 

That happens, as well as horrible, horrible lawyering. 

Now, I have seen the Attorney General’s statements lately. He 

has given his talk to the Vera Institute, to the National Legal Aid 

and Defender Association; and this Attorney General has said some 

really remarkable and important things about actually dealing 

with the issue of indigent defense. It is in crisis. 

And the problem with the Justice for All Act, you know, it was 

all passed, and it focuses on DNA, and it is kind of 50-50, and we 

are working with law enforcement to get to the bottom of this, but 

that is not addressing the problem that Chairman Conyers has 

raised and I know you all understand very, very well. And there 

has to be an initiative. The Administration is indicating that it is 

going to do it, and we all look forward to it. But there is something 

significant and large that they have to do, and there is a very appropriate and meaningful Federal role for really doing something 

about the indigent defense system in this country, which is in crisis. 

And it is not an issue of balancing, well, we give some money to 

the prosecutors and we will give some money to the defense. That 

just isn’t the reality of our system. One side of this has been underfunded for far too long, which is not to say that the prosecutors or 

law enforcement are getting, you know, all the money that they 

need or deserve, but one part of this system is in absolute crisis. 

And if you deal with that, so many of these issues that caused the 

passage of the Innocence Protection Act and all of these issues we 

have with forensic science could have been avoided. 

254 

I mean, if we had had competent defense lawyers in Texas, we 

wouldn’t have had that problem in the Houston Police Department 

Crime Lab. If we had had them in West Virginia, where this Fred 

Zain and all this dry-labbing and these tests that weren’t even 

done, a lot of these things would have been exposed, whether it is 

Arnold Melnikoff in Montana or Joyce Gilchrist in Oklahoma or 

even Dr. Erdmann, the forensic pathologist in Texas. The funding 

of an adequate defense is good for the entire system. It is not just 

protecting the innocent or the accused. It helps the entire system. 

And that is the one underfunded area that is in crisis. 

And so I am hopeful that we will be coming back here in a few 

months asking or testifying on behalf of a very, very significant initiative by this Administration to do something about indigent defense. And we hope you will reauthorize the Justice for All Act and 

take some of these suggestions. But we are really looking forward 

to the next hearing, where we do something big. 

Mr. SCOTT. Thank you. 

The gentleman from Texas. 

Mr. GOHMERT. Thank you. 

Just following along there—and by the way, Mr. Scheck, I see 

you put the microphone back, and you have witnesses here. If anybody ever accuses you of being a microphone hog, that we have to 

constantly ask you to pull the microphone and speak into it. 

But I sure hope that the majority, the vast majority of the people 

in law enforcement, judiciary, prosecutors have wanted to get the 

right guy. I know there are exceptions to that. I have tried law enforcement in my court, because nobody should be above the law, especially law enforcement. But, hopefully, your experience has been 

that the vast majority do want to get the right guy. Is that fair? 

Mr. SCHECK. Well, I think that people have those good intentions, but sometimes, certainly in the early days when we started 

the Innocence Project, when we would get involved in these cases 

and you walk in the door and say we want to do a DNA test on 

a case which could disclose that somebody was wrongly convicted, 

unfortunately, there was a lot of resistance. Because people make 

mistakes. Exculpatory evidence is hidden. There has been misconduct on the part of people who tried the case or other law enforcement, or there, frankly, has been misconduct or ineffective assistance on the part of the defense lawyers. 

I can’t begin to tell you the number of times that I have called 

defense lawyers and said, guess what? Remember that person you 

represented 15, 20 years ago? That guy is innocent. And they go, 

you got to be kidding. You know, and they never even believed for 

a second what their own client told them about being innocent or 

did a diligent investigation or did anything to find the evidence of 

innocence. 

So it is a broken system. And it is not that people sit there thinking, gee, I am going to go out and frame somebody tomorrow. It is 

that when lots of people aren’t doing their jobs it breaks down at 

every stage. 

I have no doubt if there were a competent defense attorney in 

many of these cases that said, oh, I see a mistake by the law enforcement guy here, or something that was missed in the crime lab, 

and they went to a prosecutor and said, here is the error—you 

255 

know, I see this all the time—prosecutor will say, wow, that is a 

problem. Or the judge will correct it. But the if the defense lawyer’s 

not doing that job, you know, the whole thing can result in a miscarriage of justice. And then it gets real hard to uncover that without people getting defensive and—— 

Mr. GOHMERT. I understand that. But I guess I was fortunate— 

but, normally, if a defense attorney came in, we had the prosecutors, and I can think of a number of cases where I said, wow, you 

are right, must not be the guy. We got to change course here. I 

mean, that was my experience. The vast majority wanted justice 

done. But, as a society, we certainly ought to go after those who 

don’t want to see justice done and make sure they get justice. 

Mr. SCHECK. What concerns me are the number of cases where 

the defense attorney was so bad—and, frankly, this happened a lot, 

happens a lot in Texas, right, because not enough money has been 

put toward indigent defense. 

The Fair Defense Act in Texas is a recent bill that was passed 

in the legislature. What about all the cases where nobody came forward with the evidence that proved that it was a bad case? You 

never heard about it as a judge. The prosecutors never heard about 

it. Because the defense lawyer just never did the job. And we see 

that too much. 

Mr. GOHMERT. I come back to the Chairman, my friend, Chairman Conyers mentioned 837,000 law enforcement. I haven’t talked 

to 837,000 law enforcement, but if I felt like the vast majority of 

those law enforcement officers or even a significant part of them 

didn’t care about getting the right guy, I would throw up my hands 

and move. But I just feel like most—my experience is most of the 

people involved in the justice system still have that still voice that 

says you don’t go after somebody who is innocent. And so I think 

we all want to get to the same conclusion, where we have a justice 

system that is just. 

I just know how hard some of the law enforcement work. You 

know how hard. They are really trying to get the right guy. I didn’t 

want them to be painted with a broad bush that is unfair and demeaned the life they have committed to being moral and ethical 

and trying to do the right thing. 

And in those cases where there is just laziness or one problem 

or another, or lack of funding, then we need to address that so that 

we continue to move toward a higher and better justice system. 

So we appreciate your time. Thank you very much. 

Mr. SCOTT. Thank you, and I would like to thank our witnesses 

for your testimony today. 

Members may have additional written questions, which we will 

forward to you, and ask that you answer as promptly as you can 

so the answers may be part of the record. The hearing record will 

remain open for 1 week for the submission of additional materials. 

And I would like, without objection, to have written testimony 

from the Justice Project entered into the record. Any objection? 

Without objection, so ordered. 

[The information referred to follows:] 

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Mr. SCOTT. Without objection, the Subcommittee stands adjourned. Thank you very much. 

[Whereupon, at 4:18 p.m., the Subcommittee was adjourned.] 


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