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S. HRG. 111–424 

STRENGTHENING OUR CRIMINAL JUSTICE SYSTEM: 

EXTENDING THE INNOCENCE PROTECTION ACT 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

NOVEMBER 10, 2009 

Serial No. J–111–60 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

ARLEN SPECTER, Pennsylvania 

AL FRANKEN, Minnesota 

JEFF SESSIONS, Alabama 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MATT MINER, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement ................................................................................................... 23 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement .......................................................................................... 54 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 3 

WITNESSES 

de Gruy, Andre, Director, Mississippi Office of Capital Defense Counsel, Jackson, Mississippi .................................................................................................... 7 

Findley, Keith A., Professor of Law, University of Wisconsin Law School, 

Madison, Wisconsin, Co-Gounder and Co-Director, Wisconsin Innocence 

Project, and President, The Innocence Netwoork .............................................. 9 

Lykos, Patricia, District Attorney, Harris County, Houston, Texas .................... 5 

Matson, Barry, Deputy Director, Alabama District Attorneys Association, and 

Chief Prosecutor, Alabama, Computer Forensics Laboratories, Montgomery, 

Alabama ................................................................................................................ 11 

SUBMISSIONS FOR THE RECORD 

de Gruy, Andre, Director, Mississippi Office of Capital Defense Counsel, Jackson, Mississippi, statement ................................................................................. 20 

Findley, Keith A., Professor of Law, University of Wisconsin Law School, 

Madison, Wisconsin, Co-Gounder and Co-Director, Wisconsin Innocence 

Project, and President, The Innocence Netwoork, statement and attachment ...................................................................................................................... 25 

Innocence Project, Benjamin N. Cardozo School of Law, Yeshiva University, 

New York, New York, memorandum .................................................................. 51 

Lykos, Patricia, District Attorney, Harris County, Houston, Texas, statement 

and attachment .................................................................................................... 56 

Matson, Barry, Deputy Director, Alabama District Attorneys Association, and 

Chief Prosecutor, Alabama, Computer Forensics Laboratories, Montgomery, 

Alabama, statement ............................................................................................. 60 

Sanchez, Luis A., MD, Chief Medical Examiner, Houston, Texas, letter and 

attachment ............................................................................................................ 69 

(1) 

STRENGTHENING OUR CRIMINAL JUSTICE 

SYSTEM: EXTENDING THE INNOCENCE PROTECTION ACT 

TUESDAY, NOVEMBER 10, 2009 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, Pursuant to notice, at 10:06 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy and Sessions. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. Today, the Judiciary Committee is going to focus on a vital component of our jurisdiction, 

which, of course, is to ensure that our criminal justice system 

works fairly and effectively to advance justice. Five years ago, Congress made great strides toward that goal. We passed the Justice 

For All Act; that included the Innocence Protection Act. Today, we 

begin to build on that important step. 

I introduced the Innocence Protection Act in 2000 with the primary goal of making sure that death penalty cases are conducted 

fairly. Its passage in 2004 was a ground breaking moment. But, 

unfortunately, recent headlines make clear that our work is far 

from done in this area. The New Yorker reported this fall that in 

2004, the unthinkable may have happened: the State of Texas may 

have executed an innocent man. While we may never know for sure 

the truth in that case, it is abundantly clear that our criminal justice system did not work as it must to fully test the strength and 

validity of the evidence. In that case, forensic evidence which may 

not have had any scientific basis at all went largely unquestioned. 

In Duchess County, New York, last month, a judge released 

Dewey Bozella after finding that evidence concealed for more than 

30 years showed he was not guilty of the rape and murder for 

which he spent 26 years in prison. Think of that. Evidence that 

had been concealed that would have showed his innocence, he 

spends 26 years in prison. Key evidence had not been preserved. 

The worst part about that—and as a former prosecutor, this is the 

nightmare you always have. When you prosecute the wrong person, 

that means the person who committed the crime is still out there. 

And in this case, they destroyed evidence which would have allowed them to convict the likely perpetrator, a man who went on 

2 

to commit another heinous murder. It is not enough just to—you 

want to make sure you get the guilty, and you want to make sure 

you do not lock up the wrong person. Because if you lock up the 

wrong person, that means the person who committed the crime is 

still out there. And in many, many cases, they are going to be a 

repeat offender. Mr. Bozella is here today with his wife and with 

the team of lawyers who prevailed after so many years. 

Mr. Bozella, would you stand up, please? Thank you very much 

for being here, sir. 

[Applause.] 

Chairman LEAHY. Now, I spent 8 years as a prosecutor, as many 

of you know, and I have great faith in the men and women of law 

enforcement. I worked with them on a daily basis, many times at 

2 and 3 and 4 o’clock in the morning. And I know that the vast 

majority of the time our criminal justice system works fairly and 

effectively. I also know though that the system only works as it 

should when each side is well represented by competent and welltrained counsel and when all the relevant evidence is retained and 

tested. Mr. Bozella’s case is not unique; we learn regularly of defendants released after new evidence exonerates them. We have to 

do better. It is an outrage when an innocent person is punished. 

As I said before, the guilty person is still on the streets, and they 

are able to commit more crimes, and we are less safe. 

One of the key programs created in the Innocence Protection Act 

was the Kirk Bloodsworth Post Conviction DNA Testing Grant Program. Kirk Bloodsworth, whom I know very well, was a young man 

just out of the Marines when he was arrested, convicted, and sentenced to death for a heinous crime. The only problem was he was 

not the one who committed the crime. He was the first person in 

the United States to be exonerated from a death row crime through 

the use of DNA evidence, but he sat for years on death row. And 

then they found when they tested the DNA evidence that they were 

able to find the person who did commit the crime. 

This program provides grants to States for testing in cases like 

Kirk’s where someone has been convicted, but where significant 

DNA evidence was not tested. The last administration resisted implementing the program for several years, but we worked hard to 

see the program put into place. We are going to be hearing from 

Keith Findley of the Innocence Network, who will talk about the 

good that is coming from Bloodsworth grants in his own State of 

Wisconsin, but I think a whole lot of other States, too. 

But the vast majority of capital cases and other serious felony 

cases do not include DNA evidence that can determine innocence 

or guilt. For those cases to be fairly considered, each side must 

have adequate, competent, well-trained counsels. Any prosecutor 

worth his or her salt will tell you that the most important thing 

is to have good counsel on the other side. Then you know where 

you are. And to that end, the Innocence Protection Act included the 

Capital Representation and Prosecution Improvement Grants. I 

look forward to hearing from Andre de Gruy, the Director of Mississippi’s Office of Capital Defense Counsel. I will probably continue to mispronounce your name. Did I come close? 

Mr. DE GRUY. You got it exactly, Senator. 

3 

Chairman LEAHY. His office received funds to train counsel in 

capital cases; otherwise, there would have been no resources. 

Houston District Attorney Patricia Lykos—Lykos? 

Ms. LYKOS. Lykos. 

Chairman LEAHY. Thank you, District Attorney. On a side thing, 

when I was on the board of the National District Attorneys Association, part of the time the Harris County prosecutor was a man 

named Carol Vance, and he was the president of the association. 

I was down there several times for meetings and fell in love with 

Houston and Harris County. 

But she has been a leader in encouraging post-conviction DNA 

and other forensic testing, and in advocating for effective defense 

counsel. As I said, I believe that the system works better for all involved when each side is represented well and all evidence is considered. And I know, District Attorney, you agree. I also look forward to hearing from Barry Matson, a prosecutor who has also recognized the need to seek the truth and who has been helpful in our 

efforts to reform our forensic system. 

The Justice For All Act included several other very important 

programs, including new protections for victims of crime, funding 

for State and local governments for DNA testing and other forensic 

disciplines, and the Debbie Smith Rape Kit Backlog Reduction Act. 

The Debbie Smith Act authorized significant funding to reduce the 

backlog of untested rape kits so that victims need not live in fear 

while these kits languish in storage. And I have worked hard to ensure that the Debbie Smith Act is fully funded. I have been working hard to get to the bottom of some disturbing findings that we 

have had of substantial backlogs that continue. Debbie Smith and 

her husband, Rob, are here today. Debbie, I just talked with you 

a minute ago. Where are you and Rob? I see you, right back there. 

I welcome them back to the Committee. If Debbie Smith had not 

been so heroic in coming forward with the horrible story of the 

crime committed against her, I do not think we would have moved 

that act forward, and I put her in my pantheon of heroes during 

my decades on this Committee. 

So we will rededicate ourselves to doing what we must to ensure 

that we have a criminal justice system where the innocent remain 

free, the guilty parties are punished and we get the right person, 

and all sides have the tools and resources they need. 

With that, I will yield to another former prosecutor, Senator Jeff 

Sessions of Alabama. 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. Thank you, Mr. Chairman, and I am sorry to 

have been running late. We had—— 

Chairman LEAHY. There is a lot of that going on. 

Senator SESSIONS. There is a lot happening. We had a very interesting Budget Committee hearing with a bipartisan group of Senators proposing ways to contain the surging debt that we have in 

the country, and it is something that I have been participating in. 

I thought I would be back on time. 

Mr. Chairman, I look forward to working on the reauthorization 

of the act, and I look forward to seeing how well we are proceeding 

4 

with some of the laws that have been passed. I would note that it 

is troubling that we still apparently have backlogs in analysis of 

rape kits and other analysis of that kind. It is pretty stunning to 

me. 

I have a philosophy that I will sum up before listening to the 

panel. But our great criminal justice system should be seen as a 

whole. It should be coherent. It includes prisons, police, sheriffs, 

State and Federal investigators, and prosecutors. It includes 

judges, probation officers, and the billions of dollars spent on this 

system. As crime goes up, so do arrests. The Police arrest one suspect with a powder substance, another with fingerprints, another 

with ballistics, another commits a rape, and they have DNA. And 

there are not sufficient funds to expeditiously analyze that evidence, clear the innocent, convict the guilty, and move forward 

with the case. It is a bottleneck in this system that continues to 

exist. 

I would add parenthetically that if anybody went through this 

system and has a reasonable basis to assert that there is forensic 

evidence of any kind that would free them, we ought to figure out 

a way to get them that evidence. But, of course, people can conjure 

up anything when they are serving a long period of time in jail. 

You have to have some reasonableness on this. But, fundamentally, 

that is a minor cost to the overall system to ensure the integrity 

of the system. 

I would just say that somehow we have got to get our State and 

local people more committed to effective forensic evidence, and I 

hope that the Coverdell Act, which I supported, or the other piece 

of legislation out there, could help create incentives for our State 

and local governments to do a better job of this. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you, and I think, you know, this is 

something that goes way beyond any question of politics, partisan 

politics. 

Senator SESSIONS. Right. 

Chairman LEAHY. Especially those of us who have served as 

prosecutors, we want to get the guilty person. We do not want to 

convict the innocent person. Aside from what a blot that is on the 

justice system when you convict an innocent person, it means the 

guilty person is still out there and they can still commit the crime. 

So the first witness is Patricia Lykos, the District Attorney of 

Harris County, and I believe—am I correct on this?—that you are 

the first woman to hold that post since it was created more than 

100 years ago. 

Ms. LYKOS. Yes, sir. 

Chairman LEAHY. In 1981, she was appointed to serve as judge 

of the 180th District Court where she presided over more than 

20,000 felony criminal cases over the course of 14 years. She then 

served as 10 years as senior district judge and special assignments 

judge, and then she won her election to her current position. The 

judge began her career as a Houston police officer, worked her way 

through college and law school, was in private practice as a lawyer. 

She received her undergraduate degree from the University of 

Houston, her law degree from the South Texas College of Law. 

5 

I think I could say parenthetically you are a district attorney 

who has seen every single side of the system. 

Ms. LYKOS. Yes, sir. 

Chairman LEAHY. Please go ahead. 

STATEMENT OF PATRICIA LYKOS, DISTRICT ATTORNEY, 

HARRIS COUNTY, HOUSTON, TEXAS 

Ms. LYKOS. Chairman Leahy, Senator Sessions, my name is Pat 

Lykos. I am the elected District Attorney of Harris County, Texas— 

the third most populous county in the United States of America. 

Our square miles are almost 1,800, and our county seat is the city 

of Houston, which is the fourth largest city in the United States. 

Thank you for this opportunity to testify in support of the reauthorization of the Innocence Protection Act. 

Wrongful convictions are abhorrent to Americans, and most especially these miscarriages of justice undermine the rule of law, 

which is the foundation of our Republic, which makes us the greatest country that the world has ever seen, bar none. Civil order requires that the people have faith, trust, and confidence in the system. 

I come to you with the perspective of a police officer, criminal defense attorney, criminal court judge, presided over thousands of felony cases, including capital cases, and now as district attorney. 

One of my first initiatives was to create a post-conviction review 

section that was separate and apart from our excellent appellate 

division. But, gentlemen, it is not enough to redress yesterday’s 

wrongs. We must ensure that there is future justice. 

You all are former prosecutors, and you understand the profound 

duty that prosecutors have. We are the No. 1 law enforcement officer in our jurisdiction. It is up to us to ensure the rights of both 

the accused and the victim, and we must always, always disclose 

in discovery from the inception of a case to post-conviction any 

Brady material. 

We have to serve and protect our people. We have to prevent 

crime. We have to suppress it, and we have to reduce it. And we 

have to have initiatives to go after the really bad guys—and girls, 

if you will. 

Fundamental principles of law do not change, but systems must. 

And if we are to effectively safeguard our communities, we have to 

improve the processes consistent with due process. 

Felons go undetected and undeterred because reliable forensic capabilities are either scarce or unavailable to the criminal justice 

system. The focus on post-conviction situations should not obscure 

the greatest need, and that is, the timely and accurate gathering 

of relevant evidence and DNA testing at the inception of investigations. 

We have a Medical Examiner’s Office in Harris County that is 

independent, that is staffed by scientists. It is located in the Texas 

Medical Center. I would urge this honorable Committee to consider, either through this act or related acts, we must fund crime 

labs. 

Whenever scientific evidence is introduced, it is sponsored by the 

office; it is in the name of the district attorney. It is our honor at 

stake, and we must be assured of the integrity. 

6 

In the city of Houston, we have 3,800 rape kits that are in the 

property room and 1,000 that are in the laboratory right now. This 

is criminal. 

I am here shamelessly asking you to make us the prototype, the 

pilot project for what a 21st century state-of-the-art crime lab 

should be. This is a job stimulus that I think everybody can approve. 

In addition, sir, we need through the National District Attorneys 

Association training. As you well know, 95 percent of all the cases 

are prosecuted by local prosecutors. We must have the expertise to 

be able to introduce it. We must be able to train law enforcement 

in the gathering—preserving the scene and the collection of evidence and the preservation of the evidence and so forth. We must 

have that training. 

And, lastly, I could not agree with you more. I want capable defense attorneys on the other side. That’s justice to have effective 

representation. I do not want to have to retry a case again because 

of ineffective assistance of counsel. 

Thank you so much for this opportunity. Honor in dealing justly 

with all is everything. Leaders see the right thing to do and they 

do it, and I cannot thank this Committee enough for your interest 

and your commitment to the rule of law. 

[The prepared statement of Ms. Lykos appears as a submission 

for the record.] 

Chairman LEAHY. District Attorney, thank you very much. 

I am going to put into the record a statement by Senator Feingold, a member of this Committee. We will leave the record open 

for statements from either side. 

[The prepared statement of Senator Feingold appears as a submission for the record.] 

Chairman LEAHY. This always happens when we have conflicting 

meetings going on, and I appreciate Senator Sessions leaving his 

to come here, and then we have a number of Senators who have 

gone down to Fort Hood along with President Obama. The Senate 

had a moment of silence earlier this morning, but, again, a case 

where both sides of the aisle share the horror of what happened in 

Texas. Those of us who have had members of our family in the 

military—in my case, a son—you worry when they are deployed 

into a combat area. You have a sense of their safety when they are 

in especially a place like Fort Hood, which is one of the finest military bases that we have, as you know, right there in Texas, one of 

the finest military bases in the country. And so we all share the 

shock and horror and the grief for the families. 

Andre de Gruy was appointed the first Director—am I correct on 

that?—the first Director of the Mississippi Office of Capital Defense 

Counsel on July 6, 2001. He served as assistant public defender of 

Hinds County, Mississippi. He is president of the Mississippi Public Defenders Association, served as staff attorney, later as Director 

of the Mississippi Capital Defense Resource Center. In 2001, he 

was selected by then-Governor Ronnie Musgrove to open the Office 

of Capital Defense Counsel, one of the first offices in the country 

to fund defense for capital crimes at the State level to relieve the 

burden normally placed on counties. A law degree from Mississippi 

College School of Law in 1990. 

7 

Thank you for coming north and joining us. Please go ahead, sir. 

STATEMENT OF ANDRE DE GRUY, DIRECTOR, MISSISSIPPI OFFICE OF CAPITAL DEFENSE COUNSEL, JACKSON, MISSISSIPPI 

Mr. DE GRUY. They gave me one simple instruction, and I failed 

to follow it. 

[Laughter.] 

Mr. DE GRUY. Thank you, Mr. Chairman, and thank you, Senator 

Sessions, primarily for giving me the opportunity to come here and 

explain to you the successes I feel we have had in Mississippi with 

the funding we received through the Innocence Protection Act, and 

I want to explain to you why, in my opinion, it is so important that 

we continue this and expand the Innocence Protection Act. 

My office is the only State-funded public defender agency of any 

kind at the trial level in the State of Mississippi. All other felony 

defense is provided at the county level, mostly through contract 

public defenders. We only have four full-time public defender offices in the State who actually have investigators on their staff. 

My office has handled over 100 cases in the 8-plus years we have 

been in existence. That is about a third of the cases that are indicted each year in the State of Mississippi on death penalty-eligible offenses. 

The Mississippi Public Defender Task Force recently did an evaluation of funding and found that prosecutors are funded at more 

than twice the level of the defense. That includes county and State 

funding. 

We created a defender training division about 2 years ago. They 

train everyone from youth court defenders through capital defenders. That, too, is funded at 50 percent of the prosecutor funding. 

Without the Innocence Protection Act funds, we would not have 

been able to have any training in death penalty cases. 

What we have done—and a little bit about Mississippi. We have 

executed ten people. We have had 11 cases reversed for inefficiency 

assistance of counsel. I think it is this funding disparity that contributes to more ineffective assistance of counsel than death sentences that are actually carried out. The system as it is set up in 

Mississippi risks the conviction of innocents and the execution of 

innocents. 

The finding of ineffective assistance in 11 of these cases, which 

is over 5 percent of the total death sentences imposed, is just the 

tip of the iceberg because the standard of proving ineffective assistance is so high, most of our lawyers that are found to have provided deficient performance, there is actually no reversal, including 

lawyers who are admitted to drug treatment immediately after the 

trial or who are disbarred; or in the case of Eddie Lee Howard, his 

lawyer, when he filed the appeal, the Mississippi Supreme Court 

took the extraordinary step of removing him and ordering the local 

court to appoint another attorney. That attorney also had no qualifications because we have no standards in Mississippi. Mr. Howard 

is still on death row. 

Kennedy Brewer was also represented by the same lawyer. Eventually, through DNA testing, it was proven that someone else raped 

the child he was convicted of raping and killing. My office took 

8 

over, along with the Innocent Project and a local defender, and represented him at the second trial. We never got that far because in 

the defense investigation we found the actual perpetrator, turned 

it over to the State Attorney General’s office. That man is now 

under indictment, and not only was Kennedy Brewer exonerated, 

in a related case in the same county a man who did not have DNA 

to get him out of prison was released from a life sentence because 

the State now believes that the actual perpetrator committed both 

of these crimes 2 years apart. That is what we can do with a properly funded defense office. 

What we have been able to do with the limited training funding 

we have received is to first send 18 capital defenders to national 

training programs during the first 2 years of the grant cycle. In the 

second 2 years, we have been able to have training in Mississippi, 

and not just a training program, but a training program that we 

have had the funding to bring in national experts and to follow the 

cases after the training is over. The best example of our success I 

believe is in Harrison County, Mississippi, on the Gulf Coast. They 

opened a full-time office in the wake of Hurricane Katrina. The 

lawyers in that office had never tried a death penalty case. They 

came to our first training session. We have continued to work with 

them over the past 3 years. They have handled four cases. They 

had a death sentence, they had a life sentence; they also had a directed verdict of not guilty based on the handling of DNA evidence 

that they learned at our training; and they had a defendant found 

not guilty—the death penalty was taken off the table because of 

mental retardation. 

We need this continued funding not only to train public defenders in how to handle these cases, to assist them as we go forward, 

but I was asked not only for the reauthorization of the act but actually expanding to allow us to hire some lawyers to help fill out 

the staff that we have. 

I realize I am over time. I thank you again for this opportunity, 

and I urge you to reauthorize the Innocence Protection Act. 

[The prepared statement of Mr. de Gruy appears as a submission 

for the record.] 

Chairman LEAHY. Thank you, and we will have other questions, 

and your own experience, of course, is very important. Your whole 

statement will be placed in the record, so do not be concerned on 

the time. 

Keith Findley is a clinical professor at the University of Wisconsin Law School, co-founder and co-director of the Wisconsin Innocent Project, serves as President of the Innocence Network, an 

affiliation of 52 Innocence Projects all around the world. Professor 

Findley’s areas of expertise include criminal defense work and appellate advocacy. From 1990 to 1997, he worked as an assistant 

State public defender in Wisconsin, litigated hundreds of post-conviction appellate cases at all levels of State and Federal courts, including the U.S. Supreme Court. He received his undergraduate 

degree from Indiana University, his law degree from the Yale Law 

School. 

Professor Findley, glad to have you with us. Please go ahead, sir. 

9 

STATEMENT OF KEITH A. FINDLEY, PROFESSOR OF LAW, UNIVERSITY OF WISCONSIN LAW SCHOOL, MADISON, WISCONSIN, CO-FOUNDER AND CO-DIRECTOR, WISCONSIN INNOCENCE PROJECT, AND PRESIDENT, THE INNOCENCE NETWORK 

Mr. FINDLEY. Chairman Leahy, Senator Sessions, and other 

members of the Committee—I have violated, that same simple rule. 

I am so sorry. 

Spoken off microphone. 

I am here today as President of the Innocence Network, which 

is now an affiliation of 54 Innocence Projects, primarily in the 

United States but also with members throughout the world. I want 

to thank you very much for inviting me and giving me this opportunity to testify today before this Committee. 

I would like to first address the importance of reauthorizing the 

Kirk Bloodsworth Post-Conviction DNA Testing Assistance Program and the other DNA initiatives of the Justice For All Act. 

DNA testing is, of course, of tremendous importance in our system 

of justice. We all know how important DNA is in the investigation 

and prosecution of crimes. But I would like to emphasize how important DNA testing is as well in the post-conviction context. 

We in the Innocence Network are aware of at least 245 cases in 

this country now in which an innocent person was wrongly convicted of a serious crime and later exonerated by post-conviction 

DNA testing. 

But I also want to emphasize that post-conviction DNA testing 

also serves an important public safety and law enforcement function, and that is because very often post-conviction DNA testing as 

well not only exonerates an innocent person, but also identifies the 

true perpetrators of those serious crimes. 

In the Nation’s first 241 DNA exonerations, the DNA testing also 

identified 105 true perpetrators of those crimes in many cases 

through a hit in the CODIS data base, that is, the national data 

base of convicted offenders. These were people who had gone on, 

because we had failed to convict the right person to begin with, had 

gone on to commit an additional 19 murders, 56 rapes, and 15 

other violent crimes. 

Post-conviction DNA testing is also important for another reason, 

and it is a reason that transcends these individual cases of injustice. That is, these post-conviction DNA cases provide us with a 

learning moment, a learning opportunity. They give us a case we 

can study to learn what it is that leads the system to make these 

mistakes. And in this regard, the lessons from these cases are benefiting both law enforcement and the wrongly accused. These cases 

are helping us to identify sources of error in the criminal justice 

system even in cases where we don’t have DNA to come along and 

save the day, errors like mistaken eyewitness identification evidence to flawed forensic sciences to inadequate provision of defense 

counsel, as we have been hearing about here. And these lessons 

then lead to reforms, best practices that improve the reliability of 

the system and thereby assist both the prosecution and the accused. 

Against this backdrop, we see the importance of the DNA initiatives of the Justice For All Act. Among other things, the law proVerDate Nov 24 2008 10:40 May 21, 2010 Jkt 056472 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56472.TXT SJUD1 PsN: CMORC
10 

vides funding for four separate DNA grant programs, including 

one, the Bloodsworth Program, for post-conviction DNA testing. 

Now, Congress wrote into all four of these programs financial incentives to the States to encourage them to adopt laws requiring 

preservation of biological evidence after conviction and laws giving 

convicted individuals a right to post-conviction DNA testing of that 

evidence when it might prove innocence. 

For reasons outlined in my written testimony, the program did 

not initially achieve its goals because, quite simply, it frankly was 

not implemented. No funding was disbursed in the first few years 

under these programs. But the program is now up and running. 

The Department of Justice has granted, indeed, significant awards 

in the past 2 fiscal years, and it needs to be reauthorized now so 

that its original goals can indeed be effectuated. And I am pleased 

to say that we in Wisconsin have been the recipients of one of 

those. 

The grants that we receive and other States are receiving are 

very exciting because they allow us to move forward in a much 

more proactive way to continue to identify cases of wrongful conviction and continue learning the lessons for improving the system. 

Our recommendations in a nutshell at this point, which are set 

forth more fully in my written testimony, include: 

First, reauthorize all four incentive grant programs attached to 

Section 413 of the JFAA, with their incentive provisions for preservation and access to DNA. And we also encourage Congress to address the problem posed by the fact that more than half of the 

States still lack adequate evidence preservation statutes. Without 

evidence preservation, post-conviction DNA testing is of no use. 

The short-term solution that we propose for this is providing a 

one-time limited waiver to States that can make a showing that 

they are making a good-faith effort to comply with the preservation 

requirements. 

The longer-term solution that we encourage Congress to consider 

is to join us in asking the National Institute of Justice to convene 

a national technical working group on the proper preservation of 

biological evidence to provide the States with much needed technical assistance to help them figure out how to accomplish this goal 

of preserving biological evidence after conviction. 

Finally, we also recommend several minor amendments to those 

portions of the Innocence Protection Act that provide a right of access to post-conviction DNA testing for individuals convicted of 

Federal offenses, and those two recommendations we have in that 

regard are: 

First to establish clear authority for courts to order that DNA 

profiles be run through CODIS, the national data base of convicted 

offenders, because that kind of testing is often needed to complete 

the exoneration process and to help identify true perpetrators who 

otherwise evade capture; 

And, second, we ask that you clarify that individuals who confess 

to crimes are still entitled to seek post-conviction DNA testing. 

Many States have statutes that prohibit people who have confessed 

or pled guilty from obtaining post-conviction DNA testing, yet we 

know that nearly a quarter of the post-conviction DNA exonerations involve people who confessed or pled guilty to their crimes. 

11 

And, therefore, if we are truly interested in rooting out innocence 

in our system, then we need to make that testing available to those 

people as well. 

I thank you. 

[The prepared statement of Mr. Findley appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much. 

Mr. Matson is from Alabama, so, one, I am delighted—and I welcome you being here, Mr. Matson, but I am going to yield to the 

Senator from Alabama and let him give the introduction. 

Senator SESSIONS. Thank you, Mr. Chairman. 

Barry Matson is really a fabulous prosecutor with great experience. He is now the chief prosecutor of the Alabama Computer Forensic Laboratories in Hoover, Alabama, where they train people 

from all over the country in how to utilize evidence lawfully from 

a computer to identify criminal activity and prosecute those cases. 

Also, before this position, he was a chief felony prosecutor in 

Talladega, Alabama, where he tried a lot of murder cases and serious crimes, so he has a lot of in-depth person experience both at 

the academic level—he is also the editor of the Alabama Prosecutor; I do not know how you find time to do all these things— 

as well as leading the forensic laboratory. 

So, Barry, we are delighted to have you back again. You have 

testified previously on related matters, and we are delighted to 

hear your testimony today. 

Chairman LEAHY. Did you mention Deputy Director of the Alabama District Attorneys Association? 

Senator SESSIONS. No. He is the Deputy Director of the Alabama 

District Attorneys Association. 

Chairman LEAHY. Do you sleep at all? 

Mr. MATSON. I also cut the grass and take out the trash. 

[Laughter.] 

Chairman LEAHY. Trust me, even Senators do that. Go ahead, 

Mr. Matson. 

STATEMENT OF BARRY MATSON, DEPUTY DIRECTOR, ALABAMA DISTRICT ATTORNEYS ASSOCIATION, AND CHIEF 

PROSECUTOR, ALABAMA COMPUTER FORENSICS LABORATORIES, MONTGOMERY, ALABAMA 

Mr. MATSON. Thank you. Chairman Leahy, Senator Sessions, it 

is an honor to be here to talk on something that is so vital to the 

preservation of justice in our country. 

I want to talk to you first, though, and tell you a story about 

Tracy and Loretta Phillips, and I would ask you—in my written 

testimony, it is detailed in greater detail. But Tracy and Loretta 

Phillips lived on Coffee Street in a community that I grew up in, 

and they were renovating a house, and they were planning a yard 

sale the following morning. They lived a life like most people. Tracy 

had a small business and Loretta kept the children. 

On Friday afternoon, Loretta went out to put yard sale signs up 

for the following morning. She met a guy named John Russell Calhoun who inquired about the yard sale and asked what she was 

selling in the yard sale, and there was a television he was interVerDate Nov 24 2008 10:40 May 21, 2010 Jkt 056472 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56472.TXT SJUD1 PsN: CMORC
12 

ested in. So he came back to the house on Coffee Street and looked 

at the television, decided not to buy on Friday, and left. 

That night, the children were upstairs watching some television 

program, had spend-the-night company, and Loretta and Tracy settled in downstairs to watch a movie that they had rented. A child 

in the yard behind them called and said, ‘‘Loretta, there is somebody in your back yard looking in your house.’’ Tracy went out to 

investigate, came back in, said, ‘‘Loretta, I did not see anybody out 

there.’’ 

All of a sudden, John Russell Calhoun burst into that house. She 

recognized him immediately. And Tracy fought John Russell Calhoun and tried to defend that family. Loretta ran upstairs and barricaded herself and put those children on the balcony. She heard 

the fight downstairs and later heard steps coming up those hardwood floor stairs that they were redoing and resurfacing. 

There was a knock on the door, and it was Tracy. He said, ‘‘Loretta, open the door, he has got a gun to my head.’’ She opened the 

door and there stood Tracy, beaten and disheveled, with John Calhoun with a gun to his head. 

They came in. Tracy pled for the family’s life. The children were 

motionless on the balcony. Calhoun did not want money. He did 

not want property. He wanted Loretta, and he told her to remove 

her clothes. Tracy begged for the family. Ultimately, Loretta acquiesced. She laid back on the bed. Calhoun forced Tracy’s face between her legs, and he shot him in the back of the head and killed 

him. 

Now, this is graphic, horrible cases that happen every day. After 

Tracy fell to the floor dead, the children ran out to their father, and 

they were locked in a bedroom without a telephone. Loretta suffered for the next 45 minutes to an hour, and she was raped and 

sodomized. 

Ultimately, the police came. Calhoun fled the scene, was found 

days later. In that case, there is DNA semen evidence, there is ballistics, there is eyewitness testimony. There is the car that was 

parked outside that the police found that belonged to Calhoun, a 

sports car with a driver’s license in it. 

I prosecuted that case that was made by law enforcement, and 

he received the same sentence he gave Tracy Phillips, which was 

death. And I hope that that sentence one day is carried out. 

But what we have to understand is—and I honor the work that 

the Innocence Project has done to free people that were wrongfully 

convicted, and no one should ever serve a day for a sentence they 

did not commit. But what you have to understand is that it is not 

just those 200-some-odd cases that have been attacked and ultimately the person who was wrongfully convicted was freed. It is 

every case every day. 

I know that in the next 10 years the case involving John Russell 

Calhoun will be assaulted, and I as a prosecutor—and I represent 

about 90 percent of the prosecutors in this country, which are small 

counties, small cities, with very small budgets. And I know that in 

the next 10 to 15 years I am going to be called everything in the 

book, that that case is going to be assaulted. And about 15 years 

from now, when I am retired, dead, or dying, along with everybody 

else in that case, there is going to be a request or pleadings or 

13 

something to attack that conviction that should not be attacked. 

And that happens in every case, and we have to understand that 

it is not just those cases. It is every case in this country, because 

small jurisdictions are not—it is not really an Atticus versus Goliath. 

In Alabama, I think it is important to note that we have 67 counties with 42 DAs. There are 12,000 lawyers in our States and just 

a little over 300 prosecutors. We had 200,000 reported crimes in 

2008, and 20,000 of them were violent offenses. In 1997, the indigent defense funds in our State was $14 million. The budget for the 

DAs in our State was $17 million. In 2007, the budget for indigent 

defense in our State was $70 million. Do you know what the budget 

was for the DAs? $44 million. 

That is a trend in most States. Funding for indigent defense 

should be there. It is open ended, and it is moving that way across 

this country. And we support that funding, but most of the jurisdictions in our State and across this country are small DA’s offices 

with one prosecutor, two prosecutors, maybe a secretary, and we 

are now the Atticus versus Goliath in most jurisdictions because 

the funding for expert testimony for witnesses for the defense is 

open ended and is growing exponentially. In our State, the average assistant DA’s salary is $40,000. I know up here $3 million for efficiency in Washington, D.C., is pretty average, but in Alabama, it is not. But $40,00 is the average salary. In my State, if I represent somebody as an indigent that is 

charged with capital murder, it is nothing for me to get a fee of 

$120,000 in that one case. 

So you have to understand the tables are turning, and what I am 

here asking you to do with this act—and I applaud Congress for 

recognizing the need to have an effective judicial system. And I am 

not attacking the criminal defense bar at all because I know, just 

like Chairman Leahy said, it makes me a better prosecutor and it 

makes us more effective to have a strong criminal defense bar. But 

prosecutors need training, and we need funding, and we need to be 

equipped to be able to represent the people out there who are suffering, for the Loretta Phillips of the world and for the Tracy Phillips of the world, who are damaged and hurt every day. And we 

are not. 

I know that Mr. Bright testified before this Committee on this 

act recently and talked about the disparity in prosecution and defense, and I know that has been mentioned here. But you have to 

understand that there are those pockets of that, but the trend is 

that prosecutors’ offices are not sufficiently funded, and we need 

funding and we need training. 

I echo the sentiment of my colleague at the end of the table that 

we need funding for the DNA backlog, we need funding for training, and we need funding for our offices. 

I thank you very much. 

[The prepared statement of Mr. Matson appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much, and thank you again 

for being here. You have visited us before, and I appreciate it. 

Mr. Findley, you describe in your testimony examples from 

around the country of collaborative efforts to bring both law enVerDate Nov 24 2008 10:40 May 21, 2010 Jkt 056472 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56472.TXT SJUD1 PsN: CMORC
14 

forcement and the local Innocence Projects together to evaluate 

credible claims of innocence. 

Now, I think in Wisconsin the post-conviction DNA testing 

project has a partnership between the Wisconsin Innocence Project, 

the Wisconsin Department of Justice, the Department of Corrections, and the State Public Defenders. Is that correct? 

Mr. FINDLEY. That is correct, Senator. 

Chairman LEAHY. What is the significance of the Bloodsworth 

grant program to this? Does it help? Does it hinder? Tell us more 

about it. 

Mr. FINDLEY. The Bloodsworth Post-Conviction DNA Testing Assistance Program is of vital importance to the work we do. And 

what is really exciting about what is happening with these grant 

proposals is that it is bringing together all perspectives in the 

criminal justice system, people coming together from prosecution, 

police, and the defense, recognizing that we have a shared interest. 

We heard pleas here today for more funding for the defense. We 

heard pleas for more funding for the prosecution. And the reality 

is we need both, and that is what we are recognizing right now 

through these exoneration cases, is that we all have an interest in 

identifying true perpetrators, convicting the truly guilty, and making sure that we do not convict the innocent. 

So what is happening, in particular through these Bloodsworth 

grant programs right now, is that representatives of all perspectives in the criminal justice system are coming together, and most 

of these grants, ours included, represent situations where prosecutors and defense attorneys are working together to try to implement this post-conviction DNA testing. And it is of vital importance 

because the resources otherwise simply are not there to do this 

post-conviction DNA testing. 

And what these programs are allowing us to do now is move one 

step beyond what we have been, which is sort of a reactive process, 

waiting for people in prison to self-identify, and allowing us to 

proactively go out and search the landscape to find cases where 

DNA testing could be of benefit. 

Chairman LEAHY. Because one of the things struck by Mr. 

Matson—and I have heard this from other prosecutors—is: When 

do you reach finality? Now, the case he described would appear to 

be a fairly open-and-shut case. I had open-and-shut cases, and I 

would wonder when the appeals would finally stop. I won them all, 

but I wondered when they were going to stop. 

Does this kind of collaborative effort get us somewhere toward 

the finality that Mr. Matson properly raises as a problem? 

Mr. FINDLEY. Yes, I think it does. This is why post-conviction 

DNA testing is a win-win proposition. Finality is an important interest in our system, but finality in convicting the wrong person 

serves no one’s interest. 

What the post-conviction DNA testing can do, the reason we say 

if there is DNA there that can be dispositive, that can be conclusive, it should be tested post-conviction, is because it is either going 

to do one of two things, most likely: Either it is going to prove that 

the individual is, in fact, guilty, in which case we have indeed enhanced finality. The case now finally comes to rest without further 

15 

questions. Or it will prove that the person is wrongly convicted, in 

which case no one has interest in the finality of that judgment. 

Chairman LEAHY. Well, Ms. Lykos, let me take it from the district attorney’s point of view. Do you have a similar collaborative 

approach in Harris County? You have to press the—— 

Ms. LYKOS. I did not realize that failure to follow a simple rule 

was contagious. 

Chairman LEAHY. If you knew the number of times I forget, you 

would not feel badly about it. Go ahead. 

Ms. LYKOS. We are working collaboratively, sir, and, in fact, we 

have initiated ourselves testing of biological information. But it is 

so vital that from the inception of an investigation that we do have 

the access to the crime labs. You cannot have law enforcement 

boots on the ground competing for the same dollars as a crime lab. 

And I cannot beseech you enough. We can create a new paradigm 

for what a crime lab should be, and there is really no comparison 

between the defense bar and the prosecution because of our multiple responsibilities. And just one simple thing, you know, our 

mandate to always disclose Brady material. The defense, of course, 

does not have that with respect to inculpatory evidence. But, in addition, there are hired lawyers representing them, and our role is 

just not merely prosecuting vigorously those who are guilty. And I 

do not want to be repetitious as to the myriad of other responsibilities we have. 

Chairman LEAHY. You know, I am intrigued by what you have 

done in the lab. I am trying to think whether I can actually get 

down there to see it or we could send some of the key staff from 

here down to see it. You would make sure if we did that that we 

got in there to see everything? 

Ms. LYKOS. Mr. Chairman, the planets are aligned in Harris 

County. 

[Laughter.] 

Ms. LYKOS. I mean, Republicans, Democrats, this is not a political issue. 

Chairman LEAHY. This strikes me, and, you know, we struggle 

with how do you—and you struggle with this all the time, and everybody—Senator Sessions and I have been prosecutors—struggled 

with it. You want to convict the guilty. You do not want to make 

a mistake on getting an innocent person in there, as we have seen 

the horrible results when it happens. And you want to get finality—all the things that I think every one of us can agree on. It is 

how we reach it. 

I looked at what Mr. de Gruy said. We had a case when Mississippi had executed ten people, the State saw 11 convictions or 

sentences reversed because of ineffective assistance of counsel. I remember when Gideon v. Wainwright came down. The book ‘‘Gideon’s Trumpet’’ was one of the things that really inspired me when 

I was going to law school. But are you saying that we do not always have that right to competent counsel that Gideon promised? 

Mr. DE GRUY. Actually, 30 years before Gideon in Powell v. Alabama, the Supreme Court recognized the right to competent counsel in death penalty cases. We are approaching 80 years, and I can 

say that we are coming really close in Mississippi in probably 50 

16 

percent of the cases. We cannot wait another 80 years to get it 

done. 

Chairman LEAHY. I have gone over my time, and I apologize to 

Senator Sessions, and please take whatever amount of time you 

would like. 

Senator SESSIONS. And I do have a matter, Mr. Chairman, involving my State’s seafood industry, and I have to slip out in a few 

moments. But I do think that our judges do take special interest, 

do they not, Mr. de Gruy, in a capital murder case, they take it 

more seriously and in general more intensely watch the case? 

Mr. DE GRUY. Many of our judges do. In fact, the reason that 

State funding came about was because several judges took it so seriously that they did what Mr. Matson talked about and said, ‘‘I 

am going to find the most experienced, the most qualified lawyer, 

and, county, you are going to pay him what it takes.’’ And one of 

those cases, that gentleman is probably going to be executed within 

the next year. 

Senator SESSIONS. I think the fact that you have, in Mississippi, 

11 cases overturned as a result of ineffective assistance of counsel 

indicates that the appellate courts are monitoring these cases closely, and, you know, it is not necessarily incompetence if a lawyer 

makes a mistake in a death penalty case. He just made a judgment. He thought it was going go one way, and it went another 

way, and a witness, instead of helping, hurt. Those kinds of things 

happen. 

But I do think that we are doing a better job about competence 

of counsel, and the training strikes me as a very valuable thing. 

Mr. Matson, what happens if there is a—well, first of all, would 

you agree, as a prosecutor who has tried these cases, that the DNA 

should be done up front when the case is tried? 

Mr. MATSON. Exactly, and I think that is what you are seeing 

now. Many if not all of the exonerations by DNA are cases, you 

know, 20, 25 years ago where we were doing serology and blood 

typing comparisons. And now if there—— 

Senator SESSIONS. That is before DNA. 

Mr. MATSON. That is before DNA, before 1990 with the proliferation of DNA, and now we have mitochondrial DNA and those types 

of sciences. But most of those cases are from that time. Now, law 

enforcement, they collect that evidence, it is preserved, and it is either tested by the State or it is available to be tested by—— 

Senator SESSIONS. Defense lawyers can request—— 

Mr. MATSON. Certainly. 

Senator SESSIONS. And, Ms. Lykos, with regard to that, is there 

some danger that a defense lawyer who is committed to a number 

of DNA samples tested that they might not ask for all of it to be 

tested for important reasons they think in their defense, that it 

might confirm the guilt of their defendant and that then on appeal 

another appointed lawyer might say that is incompetent counsel, 

and you have got to give a new trial or re-test this evidence? Are 

those realistic problems that can cause extra effort in trying to 

maintain these convictions? 

Ms. LYKOS. I think you are spot on, Senator, but more importantly, in my jurisdiction if it is relevant biological evidence, we 

test it prior to trial. The sin is and what is so unconscionable is 

17 

the capability, we do not have it there, to have almost 4,000 rape 

kits in a property room. Epithelial is not being tested where we 

could solve all sorts of property crimes and other offenses because 

we cannot get to the rape kits. 

Senator SESSIONS. Well, I agree. It is my observation that is 

what happens. The shortfalls in the forensic science funding is because they are such a small part of the system, they do not have 

the clout that the DAs and the sheriffs and the police chiefs have 

with the State legislatures. Do you think that could be a problem 

in reality? 

Ms. LYKOS. Yes, sir, and I am looking forward to you all remedying that. 

Senator SESSIONS. From Washington. 

Ms. LYKOS. Yes, sir. 

Senator SESSIONS. Well, we are not going to fund everything 

from Washington. The State, you know, we help it. We give it 

money. But we were just having a budget hearing down the hall. 

That is where I came from. We are spending a lot of money, I am 

telling you. The entire debt of the United States of America will triple in 10 years, and they have got four different plans to create a 

commission to contain spending. So we just cannot do everything, 

I would tell you. 

Mr. Matson, I will just give you a moment here to just briefly express the other side of the forensic situation, the post-conviction 

motions. I am sure you have been through some of those and seen 

them. Are there some abuses that we could eliminate as we seek 

to ensure that every defendant has the right, post-conviction, to 

have evidence examined that possibly could make a difference in 

their conviction? 

Mr. MATSON. Yes, Senator. What you see is—and you will hear 

about a story where somebody makes a request to have some evidence tested, and maybe there is a opposition or maybe the judge 

does not rule or there is some delay. But what is really untold is 

that that happens in every case. So every circuit judge has those 

petitions in every case, and you are trying to sift through a legitimate request for someone who earnestly wants to have something 

tested versus, you know, the hundreds or maybe thousands of requests that are not grounded, that have, you know, no significant 

basis for having the evidence retested. 

Senator SESSIONS. Let me just interrupt. OK. So here is a case 

before the judge. Are you telling me that good defense lawyers have 

a form motion on their computer that demands forensic examination of everything that possibly impacts the case, and 30 years ago 

you had a confession and an eyewitness testimony and that was 

sufficient to go to trial with? 

Mr. MATSON. Certainly. You have cases where you have—I had 

one that I thought about talking about where a fellow broke into 

his ex-wife’s home and beat her, drug her out, and, you know, shot 

her in front of witnesses, told people he was going to do it, sat 

there and waited for the police, and his first words were, ‘‘A man’s 

got to do what a man’s got to do.’’ And then there are requests to 

have the gun tested for touch DNA now. You know, the gun is 20 

years old, and it has not been in law enforcement. It was an exhibit 

at trial. 

18 

So a lot of times, evidence that is an exhibit at trial, the chain 

of custody means the court reporters had it in their drawer or in 

a bag in a filing cabinet or in a vault in the courthouse for some 

time, not in the presence of law enforcement. So now you have that 

person on death row. By the way, they have gotten three trials, 

and three juries have said he should receive death. And now we are 

looking at having evidence tested again. 

Senator SESSIONS. Thank you. 

Chairman LEAHY. Thank you very much. 

Senator SESSIONS. Sorry I have to leave. 

Chairman LEAHY. No, no. I understand. 

I am going to put some other questions in the record, but picking 

up on what Mr. Matson said about the evidence retention, and, 

again, from my own experience, this is and can be a problem 

whether you are in a large office or a small office, as many prosecutors are. It is a key component of the Bloodsworth Grant Program, 

the evidence retention. To receive grant funding, States must not 

only demonstrate they provide access to post-conviction DNA testing, but that they preserve biological evidence for the duration of 

the incarcerated person’s prison sentence. 

Now, more than 25 States lack statutes requiring the preservation of biological evidence. The Dewey Bozella case in New York 

makes clear that preservation of that is critical. The right to postconviction DNA testing is meaningless if the very evidence to be 

tested is destroyed. 

Evidence retention policy is complicated. It can be expensive. We 

tried to set up a temporary solution to get the Bloodsworth Program going, but that does not work. 

Professor Findley, you mentioned in your testimony a solution 

might be a two-step process. Tell me about that. Tell me some more 

about that. How does that work? Because on the Bloodsworth bill, 

that had strong bipartisan support. And we can pass something, 

but we do not want to pass these bills just to feel good about passing them. We want to make sure they work once they get out there. 

Mr. FINDLEY. Yes, and what the Innocence Network and the Innocence Project have suggested, there is indeed this two-step—two 

alternatives, essentially. One is the short-term solution. 

Part of the problem, of course, is that—the incentive program for 

preservation of evidence is very important because, obviously, you 

cannot do DNA testing if the evidence has not been preserved. So 

the incentive program makes good sense. The problem is because, 

as you have identified, more than 25 States do not have adequate 

provisions. That means we are not getting the preservation there, 

and it also means that the Bloodsworth grant funding money and 

the other DNA initiative money is not flowing in those States. 

So what we have proposed for the short-term solution is to get 

the money flowing and to give States a chance to start working on 

these problems. The short-term solution would essentially be to 

grant the States a one-time waiver if they can demonstrate that 

they have an adequate post-conviction DNA testing statute and if 

they show that they have imposed a moratorium on destruction of 

evidence while they convene a State-level working group to try to 

develop a plan for permanent preservation of the evidence. 

19 

These questions are complicated enough, though, that we think 

that really the long-term solution is the better one, and that is to 

ask the National Institute of Justice to convene a National Working Group to help the States understand the best way to preserve 

evidence to solve some of the technical problems with that. And 

this is something we are hearing from all of the States, from law 

enforcement in the States. They need guidance in this area. And 

so if we can implement that and then give States a waiver, if they 

are following those guidelines and working toward that, I think we 

could meet all of our objectives. 

Senator Leahy, if I could, could I take just a moment to address 

one of the questions Senator Sessions raised? That has to do with 

the importance of testing everything before trial. And, of course, it 

is very important to do that, and it is being done primarily. But 

I have to tell you that that does not mean that the need for postconviction DNA testing is being diminished. We would have 

thought that by now we would have seen a curtailing of the rate 

of post-conviction DNA exonerations as we work our way through 

the pool of cases that were prosecuted back in the old days, before 

testing. But we are not seeing that. In fact, the rate is accelerating. 

We are continuing to see these cases because there still are many, 

many cases where the DNA testing, even though the technology is 

there, is not done for any number of reasons, including incompetence of defense counsel. 

And there is no flood of post-conviction DNA testing requests. 

California, our largest State, since it passed a statute requiring access to DNA testing, sees now on average one to two DNA testing 

requests per month in the entire State. 

So I just wanted to make those points clear. 

Chairman LEAHY. And one thing we should point out, as prosecutors and defense counsel know, not every case has DNA. 

Mr. FINDLEY. Absolutely. 

Chairman LEAHY. Just like in the old days, everybody would say, 

‘‘Well, where are the fingerprints? ’’ Well, not every case had fingerprints. And I think sometimes we watch these programs on television. I call it the CSI factor. Aha, the jury is there waiting, 

‘‘Where is the DNA? Where is the blood match? Where are the fingerprints? ’’ Well, some cases do not have DNA. They do not have 

fingerprints. They do not have blood tests. You have to build your 

case otherwise. And we have to know that. 

I want to thank you all for doing this. You will get copies of your 

testimony. If there are things you wish to add to it or things that 

you wish to add related to others, please do so. This is not in any 

way a ‘‘gotcha’’ hearing. This is a hearing where we are just trying 

to figure out what is the best way to do this. You have taken a lot 

of time to come here. All four of you have helped a great deal, and 

I appreciate it. 

We will stand in recess. 

[Whereupon, at 11:10 a.m., the Committee was adjourned.] 

[Submissions for the record follow.] 

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