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S. HRG. 112–900 

JUSTICE FOR ALL: CONVICTING THE GUILTY AND 

EXONERATING THE INNOCENT 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

MARCH 21, 2012 

Serial No. J–112–65 

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 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

CHUCK GRASSLEY, Iowa 

ORRIN G. HATCH, Utah 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 
(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa ............................ 3 

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

prepared statement .......................................................................................... 26 

WITNESSES 

Witness List ............................................................................................................. 25 

Watkins, Craig, District Attorney for Dallas County, Dallas, Texas .................. 5 

prepared statement .......................................................................................... 28 

Haynesworth, Thomas, Richmond, Virginia .......................................................... 7 

prepared statement .......................................................................................... 33 

Marquis, Joshua, District Attorney for Clatsop County, Astoria, Oregon .......... 8 

prepared statement .......................................................................................... 36 

QUESTIONS 

Questions submitted by Senator Chuck Grassley for Joshua Marquis ............... 47 

Questions submitted by Senator Chuck Grassley for Craig Watkins ................. 49 

Questions submitted by Senator Amy Klobuchar for Joshua Marquis ............... 50 

ANSWERS 

Responses of Joshua Marquis to questions submitted by Senator Grassley ...... 51 

Responses of Joshua Marquis to questions submitted by Senator Klobuchar .... 56 

NOTE: At the time of printing, after several attempts to obtain responses 

to the written questions, the Committee had not received any communication from Craig Watkins. ..................................................................................... 62 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

Testimony of Kirk Bloodsworth, Death Row Inmate Exonerated by DNA, 

March 21, 2010 ..................................................................................................... 63 

‘‘Rightful Convictions,’’ Posted by Joshua Marquis, www.cato-unbound.org, 

March 7, 2012 ....................................................................................................... 64 

Barbara Parker Hervey, Judge, Texas Court of Criminal Appeals, March 

21, 2012, statement .............................................................................................. 69 

Testimony of Thomas Haynesworth, The Mid-Atlantic Innocence Project, and 

The Innocence Project, March 21, 2012 ............................................................. 77 

Innocence Project National Criminal Justice Commission Act (S. 306) letter 

to Senate, September 2011 .................................................................................. 94 

Letter to Senator Leahy from Mary Lou Leary, U.S. Department of Justice, 

March 21, 2012 ..................................................................................................... 96 

Letter to Senator Leahy from Stephen Saloom, Esq., Policy Director, Innocence Project, March 27, 2012 ............................................................................. 99 

The National Criminal Justice Commission Act of 2011, S. 306, fact sheet ...... 100 

Endorsement letter from National Organizations, Businesses, and State and 

Local Organizations for the National Criminal Justice Commission Act 

of 2011 ................................................................................................................... 101 

‘‘The Innocent and the Shammed,’’ by Joshua Marquis, Op-Ed Contributor, 

New York Times, January 26, 2006 .................................................................... 104 
Page

IV 

Scott Shellenberger, State’s Attorney for Baltimore County, Maryland, written 

testimony .............................................................................................................. 107 
(1) 

JUSTICE FOR ALL: CONVICTING THE GUILTY 

AND EXONERATING THE INNOCENT 

WEDNESDAY, MARCH 21, 2012 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10:08 a.m., in Room 

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

Chairman of the Committee, presiding. 

Present: Senators Leahy, Klobuchar, Franken, and Grassley. 

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

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. The major complexity of the discussions between the two leaders of this Committee up here is how to figure 

out how to work the controls on these new chairs they put in here, 

in case you are wondering what deliberations go on in Congress. 

On a more serious matter, though, over the next two weeks on 

the Judiciary Committee, we are going to focus on a vital component of our jurisdiction: ensuring the integrity of convictions in our 

criminal justice system. As a former prosecutor, I have great faith 

in the men and women of law enforcement, and I know that the 

vast majority of the time, our criminal justice system works fairly 

and effectively. But in those instances when the criminal justice 

system does not work the way it should, the consequences are 

grave, and our faith in the system is shaken. 

The criminal justice system only works when all relevant evidence is collected, is retained, and is tested, and then when it is 

appropriately shared with defense counsel. For more than a decade 

I have worked to ensure post-conviction DNA testing and reexamination of evidence that has resulted in innocent people being exonerated, but if you have an innocent person locked up, it means that 

somebody who committed the crime is out there, and we should use 

the same evidence to go and get the right person. 

We enacted the Innocence Protection Act as part of the Justice 

For All Act. We did that during the Bush administration. And 

today the Judiciary Committee is going to focus on instances where 

poor evidence led to wrongful convictions. Then, next week, the 

Committee will turn to another important aspect of our criminal 

justice system to examine the need to share key evidence with the 

defense in order to guarantee a fair trial. 

Several years ago, Congress made great strides toward protecting 

the integrity of the criminal justice system by passing the Kirk 

Bloodsworth Post-Conviction DNA Testing Grant Program. I am 
2 

proud to see Kirk Bloodsworth here in the audience. But we have 

with us today Thomas Haynesworth. This is a case where the 

wrong things were done. Mr. Haynesworth spent 27 years in prison 

for a series of rapes he did not commit. With the support of the Virginia Attorney General, he was finally exonerated after DNA testing that was funded by the Bloodsworth program implicated someone else. He spent 27 years in prison because of a wrongful conviction. There is no way we can give those 27 years back to him. But 

at the very least, we ought to try to work to make sure nothing like 

that happens to somebody else. 

I understand that today is a special day. It is the anniversary of 

Mr. Haynesworth’s release from prison, but it is also your birthday, 

so Happy Birthday, Mr. Haynesworth. I would hope that it feels 

good that you can walk in and out of this room at your own volition. And we are honored that you have chosen to spend your birthday with us. 

Kirk Bloodsworth was a young man just out of the Marines when 

he was arrested, convicted, and sentenced to death for a heinous 

crime that he did not commit. My wife, Marcelle, and I have gotten 

to know Kirk very well over the years. He was the first of many 

people in the United States to be exonerated for a capital crime 

through the use of DNA evidence, even though he ended up on 

death row. The thing is, when he was finally exonerated, somebody 

in the prison said, ‘‘You know what is interesting? There is a guy 

who looks just like him in a different part of the prison.’’ And it 

turned out, of course, that was the person who had committed the 

crime. His lawyer is now a respected judge on the court here in the 

District of Columbia, Bob Morin. 

We also have Craig Watkins, the district attorney in Dallas. Mr. 

Watkins has been heavily involved with Texas’ Criminal Justice Integrity Unit, which is at the cutting edge of criminal justice reform. 

Mr. Watkins and Judge Barbara Hervey, a Democrat and a Republican, worked closely together on this project, demonstrating that 

integrity in the system is something which ought to unite Republicans and Democrats. The Texas Criminal Justice Integrity Unit 

is tackling the need to educate officials about issues such as working with forensic science. And Judge Hervey has also submitted 

written testimony highlighting the good work being done in Texas. 

We learn regularly of defendants released after new evidence exonerates them. Levon Brooks and Kennedy Brewer were released 

in 2008 in Mississippi after serving a combined 32 years for a murder they did not commit. There are too many such cases. 

In the coming weeks, I expect the Judiciary Committee to take 

up the reauthorization of the Justice for All Act, which will include 

several important provisions in addition to the Bloodsworth program. Unfortunately, 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 well-trained, competent counsel. 

It also includes new protections for victims of crime, funding for 

State and local governments for DNA testing, and reauthorization 

and updating of the Debbie Smith Rape Kit Backlog Reduction Act. 

This authorized significant funding to reduce the backlog of untested rape kits so that victims need not live in fear and so we can stop 
3 

hearing about cases where somebody has been raped and is told by 

the police, ‘‘Well, we are not going to be able to check DNA in the 

rape kits for several months. In the meantime, please keep your 

doors locked because these people tend to come back.’’ We do not 

want to see that sort of situation. 

I will put the rest of my statement in the record. I apologize for 

my voice. We seem to have, along with all the flowers coming up 

a couple weeks early in DC, the pollen that comes with it. 

[The prepared statement of Chairman Leahy appears as a submission for the record.] 

Chairman LEAHY. Senator Grassley. 

STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR 

FROM THE STATE OF IOWA 

Senator GRASSLEY. Thank you, Mr. Chairman. It is very good 

that you are holding this hearing. 

The debate surrounding crime and punishment has been around 

for a long time. Our Founding Fathers drafted and ratified the 

Constitution and Bill of Rights 225 years ago. At the forefront of 

their mind was ensuring the protection of individual liberty from 

the power of government. However, our Founders did recognize 

that at times there are citizens that break the social contract of our 

civil society, and they need to be punished, provided they are afforded due process. While not strictly defining what due process 

was required under the Constitution, the Constitution and years of 

court cases have outlined that process, which has worked to ensure 

a baseline set of standards at both the State and federal levels of 

criminal prosecution. 

Over time, these baseline procedures have been supplemented by 

statutory law, model rules, court rules, and standards of professional responsibility that are designed to ensure the fair and impartial administration of criminal justice. Unfortunately, despite 

the adherence to the community, laws, regulations, rules, and procedures, there is the possibility and fact that innocent people could 

be afforded all due process yet still be convicted. 

Mr. Haynesworth, here today with us, has spent 27 years in prison for a crime that he did not commit. In December, he was declared innocent by the Virginia Court of Appeals. His case presents 

us with a personal example of why we must continue to ask questions about the criminal justice system and not become complacent. 

Cases like Mr. Haynesworth’s make us realize that no system involving humans is perfect. It is sad, it is unfortunate, and an emotional reality that we must recognize. However, we must also examine the issues in an informed way that does not threaten to destabilize the entire criminal justice system. 

Chief among the issues to discuss today is the question of how 

many innocent men and women may have been convicted over the 

years and how do we effectively review those cases, correct the injustices, and apply what we learn so that injustices are not repeated. This is not a very easy task. So the question becomes: How 

do we determine which cases should be reviewed? And how do we 

allocate the limited resources of government to review? 

It is important to note that there is a real discrepancy in the 

number of individuals in prison who are actually innocent. For ex-
4 

ample, some argue that cases where truly innocent individuals 

were exonerated are just the tip of the iceberg. Others argue that 

the number of true exonerations is small because many of the statistics on exoneration include cases where convictions were overturned procedurally, even though the individual was not found factually innocent. 

Furthermore, they argue that the number of exonerations is 

going down each year as technological advances such as DNA testing eliminate many wrongful convictions from even occurring because DNA testing is being routinely used to prove factual innocence earlier in the investigative process. Getting a better understanding of how many cases are out there will not only inform us 

about whether reforms are needed but also what types of reforms 

would provide the best help. 

We also need to be cognizant of the fact that, in addition to the 

federal criminal justice system, there are 50 different State justice 

systems, each with its own constitution, laws, rules, regulations, 

and procedures. This is what Justice Jackson, who was then Attorney General Jackson, had to say in a famous speech, ‘‘The Federal 

Prosecutor’’: ‘‘Outside of Federal law each locality has the right 

under our system of Government to fix its own standards of law enforcement and of morals.’’ This statement is particularly important 

today given the current fiscal situation of our Federal Government. 

We do not have the resources at the federal level to provide funding to States to review every single criminal case after each case 

has exhausted all appellate remedies, nor should we interfere with 

the day-to-day intricacies of State criminal justice. 

As written testimony submitted by Judge Hervey points out, the 

State of Texas, via the Court of Criminal Appeals, established the 

Texas Criminal Justice and Integrity Unit to review their criminal 

justice system and proposed reforms. As States are already undertaking this effort on their own, our role in Congress should be to 

examine the federal criminal justice system and not to reform 

every State system. We should not go down the path of attempting 

to correct problems in State criminal justice systems. Instead, as 

a recent report on prosecutorial misconduct in the Ted Stevens case 

points out, we should expand our limited resources ensuring that 

the federal criminal justice system works as it should. 

That said, we have a panel of witnesses here today to discuss 

these important topics, and I look forward to the very important 

testimony we are going to receive. Thank you. 

Chairman LEAHY. Thank you. 

We will begin with Mr. Watkins. Craig Watkins is the District 

Attorney for Dallas County, Texas. In November of 2006, he was 

elected as the first African American district attorney in Texas. He 

has led his office to a 99 percent conviction rate, but just as importantly, he established the Convictions Integrity Unit that has reviewed over 300 cases in the past four years and led to the exoneration of 25 wrongfully convicted prisoners. It has received national recognition for helping to ensure the effectiveness and integrity of the justice system. 

So, District Attorney Watkins, we are delighted to have you here. 

Please go ahead, sir. 
5 

STATEMENT OF CRAIG WATKINS, DISTRICT ATTORNEY FOR 

DALLAS COUNTY, DALLAS, TEXAS 

Mr. WATKINS. Good morning, Chairman Leahy and Ranking 

Member Grassley. Thank you for inviting me to testify today on an 

issue of national importance, ‘‘Justice for All: Convicting the Guilty 

and Exonerating the Innocent.’’ I would like to briefly address with 

you three areas related to this topic. First is the formation of the 

Dallas County District Attorney’s Office Conviction Integrity Unit. 

Second is a ‘‘smart on crime’’ philosophy. Third is continuing our 

existing improvements. 

John F. Kennedy said, ‘‘Change is the law of life and those who 

look only to the past or present are certain to miss the future.’’ 

When I took office, I saw a need to look to the future of law enforcement. I saw a need to improve how law enforcement approached crime. And I saw a need to improve past practices. A 

prosecutor’s job is not simply to obtain convictions but instead to 

see that justice is done. 

In order to see that justice is done and eliminate threats to justice, I formed the first Conviction Integrity Unit in a prosecutor’s 

office in the country. Dallas County is the ninth largest county in 

the country. We obtained more than 60,000 convictions in 2011. We 

have 17 felony courts and 13 misdemeanor courts. Our State of 

Texas this year will execute more offenders than any other State. 

Therefore, our interest in ensuring with absolute certainty the accuracy of the judicial system is critical to the success of our county 

and, in my view, on a larger scale, to the success of our country. 

The Conviction Integrity Unit’s work recently came full circle in 

a case that absolutely would not have been prosecuted without the 

investigative efforts of the Conviction Integrity Unit. 

In 1989, a seven-year-old little girl lay peacefully asleep in her 

bed. In the middle of the night, a predator crept into her house, 

took her from her home, and sexually assaulted her. The predator 

violated her entire family when he assaulted her. Her mother was 

restless and uncertain for years. Her father suffered deeply as well. 

The damage this man did was unimaginable. Local, State, and federal law enforcement sought out to capture a man who gained the 

moniker the ‘‘North Dallas Rapist.’’ The crime committed against 

that child went unsolved for years. 

In the same time period, another man was charged and ultimately convicted. The man, who was deaf, professed his innocence 

from behind bars for years. His claim of innocence led to our administration’s investigation, which ultimately exonerated him. 

When the investigation started, the molester of the little child 

was walking the streets believing that he had gotten away with a 

horrific crime. Additionally, he continued to commit those same 

types of crimes. The victim in that case believed that the justice 

system had forgotten about her. Her case had gone unsolved since 

1989. For years she lived in fear that her attacker was still free. 

At the same time, a man sat in prison for a crime he did not commit. Ultimately, our Conviction Integrity Unit pursued a life sentence for the real perpetrator. Within a matter of minutes, the jury 

obliged. Additionally, upon our recommendation, the Texas Court of 

Criminal Appeals freed the wrongfully convicted man. This is an 

example of what a Conviction Integrity Unit can do. 
6 

Texas has formed the first statewide Texas Criminal Justice Integrity Unit. Einstein defined insanity as doing the same thing 

over and over again and expecting a different results. In light of 

the DNA exonerations, we must continue to change what we have 

done and what we will do. It is nonsensical to think that we have 

the intellectual capacity to convict an innocent man, but we are not 

smart enough to free a wrongfully convicted man. 

As protectors of a free society, we cannot allow our zeal to convict 

a person to overcome the morals and values we stand for as a country. Too often Dallas County promised fairness but instead delivered inequality. Our history is spotted with these cases, which you 

are likely familiar with. Universally, we are raising the necessity 

of accuracy in the handling of criminal trials. At the same time, 

our ability to deliver that accuracy has dramatically improved. 

The causes of wrongful convictions are as numerous as the cases 

reviewed. There are instances of prosecutorial misconduct, instances of mistaken eyewitness identification, and instances of pure 

incompetence by those charged with handling the cases. Recognizing the flawed methods used to obtain convictions in cases involving DNA exonerations begs the question of reliability of those 

methods in non-DNA cases. 

In the overwhelming majority of cases we review, the claimant 

will not actually prove his innocence. However, the overwhelming 

majority of flights that take off will land. When a plane crashes, 

we investigate what happened and we learn from it. We do not pretend that it did not happen; we do not falsely promise that it will 

not happen again; but we learn from it, and we make necessary adjustments so it won’t happen again. The same approach should be 

pursued within our criminal justice system. It is human to error; 

however, to be humane we must recognize those errors and apply 

the appropriate solutions to prevent the same error. 

Our ‘‘smart on crime’’ approach has dramatically reduced the 

crime rate in Dallas County. We have worked with the Dallas Police Department and other law enforcement agencies in the county 

to achieve an all-time low in crime and an all-time high in our conviction rate. The approach that we have used has not diminished 

our ability to prosecute cases, but instead has enhanced it. This approach has garnered credibility with all segments and communities 

in Dallas, and in order for our criminal justice system to work, we 

must strive for perfection and credibility. 

Texas has made reforms in the areas of eyewitness identification, 

retention of biological evidence, and documentation of statements 

made by defendants and/or witnesses. These improvements have 

been aimed at reducing the likelihood of wrongful convictions and 

strengthened the foundation of the criminal justice system in 

Texas. 

Likewise, the Federal Government has taken important steps in 

improving our justice system by passage of the Justice for All Act 

in 2004. These measures serve to lighten the financial burden of 

post-conviction DNA testing and improve the educational opportunities for the legal community. I encourage you to continue on this 

course and continue to provide funding for these critical programs. 

There is universal agreement that the conviction of innocent persons for a crime they did not commit is intolerable in a civilized 
7 

society. We are standing at the threshold of progress as it relates 

to strengthening the integrity of our criminal justice system. Let us 

continue to take advantage of this opportunity of exploration and 

improvement. 

Thank you for allowing me to comment at this time, and I will 

answer any questions that you may have. 

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

for the record.] 

Chairman LEAHY. Thank you. 

We will go to each of the witnesses first, and then we are going 

to have some votes in between here, which we are trying to juggle 

things so that somebody can keep the hearing going. 

As I indicated earlier, 27 years ago, Thomas Haynesworth was 

wrongfully convicted of attacking five women near his home in 

Richmond, Virginia. He maintained his innocence for nearly three 

decades. He was finally exonerated of his crimes. He was released 

from prison last March at the age of 46. He now works for the Virginia Attorney General’s office. He spent the last year, as you can 

imagine, reintroducing himself to his friends and family. 

Mr. Haynesworth, I appreciate your being here. Again, I must 

say I am very sorry for the reason why you are here. I am sure 

nobody is more sorry than you are, but, thankfully, at least you 

have been cleared. Please go ahead, sir. 

STATEMENT OF THOMAS HAYNESWORTH, RICHMOND, 

VIRGINIA 

Mr. HAYNESWORTH. Thank you for inviting me to testify on the 

issue of wrongful conviction. 

Exactly one year ago, March 21, 2011, the Commonwealth of Virginia gave me the most memorable birthday present ever: I was released from prison after serving 27 years for crimes that I did not 

commit. I spent more than half my life and almost my entire adult 

life in prison. But that gift came only because of the hard work by 

many people in the organization, including public officials such as 

the Attorney General of Virginia. I am grateful to them for giving 

me this assistance. 

In February 1984, when I was 18 years old, I was charged with 

five rapes and sexual assaults. I had never been arrested before. 

From the moment I was arrested, I told everyone that I was innocent. But four other women also mistakenly identified me, and 

DNA testing did not yet exist to help me prove my innocence. I was 

convicted of three of those crimes and sentenced to 84 years in prison. Later, the State crime lab discovered evidence in one of my 

cases and proved that I was innocent and that a convicted serial 

rapist had committed that crime. 

Like many others, proving my innocence and securing my freedom was not easy. It took a lot of time and support, including the 

State crime lab conducting DNA testing in two of my cases. I took 

and passed two lie detector tests, learned from three different organizations how to work on a case, including the Mid-Atlantic Innocence Project, the Innocent Project in New York, and Hogan 

Lovells, a private firm that worked pro bono. Experts had to review 

the evidence. Two prosecutors has to work on my cases. The Virginia Attorney General and the Governor supported my case. I es-
8 

pecially would like to thank the law enforcement officials, in particular Attorney General Cuccinelli, for their efforts to correct my 

wrongful conviction and support my innocence. 

Proving my innocence also was not cheap. DNA tests, overtime 

for crime lab staff who managed this difficult project, and the work 

of my lawyers took hours and cost a lot of money. Luckily for me, 

both the State of Virginia and the Mid-Atlantic Innocence Project 

were able to do this work because they had received grant funding 

from the Federal Government to cover the DNA testing, overtime 

hours, and some of the attorney time. This funding came from the 

Federal Bloodsworth program and Wrongful Conviction Review 

Program. Without this support, I would still be in prison. 

Congress and States should support reforms that will help prevent wrongful conviction as well as funding for grant programs 

that help exonerate the innocent. 

Thank you for listening to my testimony today. I would be happy 

to answer any questions. 

[The prepared statement of Mr. Haynesworth appears as a submission for the record.] 

Chairman LEAHY. Thank you, Mr. Haynesworth. 

We will finish with Joshua Marquis. Mr. Marquis is the district 

attorney of Clatsop County, Oregon, where he has served since 

1994. He has been a member of the Board of Directors of the National District Attorneys Association since 1997. I know how much 

I enjoyed serving as a member of that same board. He is also a 

member of the American Bar Association’s Criminal Justice Section 

Leadership Council. He is a past president of the Oregon District 

Attorneys Association. 

District Attorney Marquis, we are glad to have you here. Please 

go ahead, sir. 

STATEMENT OF JOSHUA MARQUIS, DISTRICT ATTORNEY FOR 

CLATSOP COUNTY, ASTORIA, OREGON 

Mr. MARQUIS. Thank you very much. Senator Leahy, Ranking 

Member Grassley, thank you for inviting me here today. I am here 

on my own dime because this matter concerns me greatly. 

I want to make clear this is not a partisan issue. Even though 

I was invited by the minority, I want to make clear that I have 

never voted for a Republican for national office in my life and do 

not plan on doing so in the future. This is not a Democrat-Republican issue. 

The National District Attorneys Association, on whose board I 

serve and where Chairman Leahy was the vice president, I believe, 

during a couple of terms when he was district attorney in Burlington, Vermont, probably before I was a lawyer—— 

Chairman LEAHY. Probably before you were born. 

[Laughter.] 

Mr. MARQUIS. Maybe not quite that long ago, Senator. But we 

are nonpartisan. We have worked with both Democratic and Republican administrations. 

I am not here to tell you that wrongful convictions do not occur 

or that prosecutorial misconduct does not occur. I have my job because my predecessor was arrested, indicted, convicted, jailed, and 

disbarred, in that order. She framed two completely innocent police 
9 

officers because they would not fix a reckless driving citation for 

her boyfriend, a federal ex-con. And I was subsequently appointed 

to fill her position and then later elected. 

When I came into my office, I discovered that there were things 

not nearly as spectacular or as tragic as Mr. Haynesworth’s case, 

but cases that just did not smell right. One of the wonderful things 

about being a prosecutor, as opposed to being a defense attorney— 

I have been both—is that as a prosecutor our duty is just to the 

truth. It is not to the client. And so if a case does not feel right, 

we have the ability to dismiss it. And so I went back and looked 

at cases and decided that some should be dismissed. In one case, 

I even went and asked that a perjury case conviction be vacated 

because, again, it just did not smell right. That is one of the advantages of being a prosecutor in our system. 

As I think Mr. Watkins said, it is not news when planes land 

safely, as Walter Cronkite says. So Mr. Haynesworth’s case and 

that of Kirk Bloodsworth, who is here in the audience, are remarkable because they are, frankly, very rare. You do not find news stories that say, ‘‘DNA confirms guilt of defendant.’’ It is simply not 

news anymore. 

Mr. Haynesworth is someone who deserves our apologies, and I 

was asking him—he probably deserves compensation. But as he 

pointed out, quite generously, the Washington Post, in a series of 

articles about his case, talked about how the Virginia Attorney 

General and two Commonwealth attorneys, one a Democrat and 

one a Republican, did everything they could. Frankly, if DNA had 

existed in 1982 when he was first wrongfully convicted, I do not 

think he would be—and he actually brought up an interesting 

point. He brought up two different kinds of science: DNA, which 

prosecutors brought into the courtrooms of this country, not defense attorneys, and fought State by State by State trying to get 

it to fit Daubert or Daubert-like standards, and now it is accepted, 

and now we realize it exonerates as well as inculpates. But he also 

mentioned lie detector tests. Lie detector tests, on the other hand, 

are almost universally rejected, frankly, as ‘‘junk science.’’ They are 

not allowed in most States under any circumstances. 

When I was last in this room was 12 years ago, and we were 

talking about the first iteration of the Innocence Protection Act. 

And, frankly, I was here opposing that. I had problems with it. So 

did my organization. We worked it out, and by 2004—I think it was 

called the Justice for All Act—it passed, and I think you are looking to—one of the witnesses there was Barry Scheck from the Innocence Project, and he was talking about a guy named Ricky 

McGinn. On that very day that we were here, Ricky McGinn’s picture was 12 times across the cover of Newsweek—‘‘Is this man innocent? ’’—and implied that if he could just get a DNA test, it 

would prove that he was innocent. 

Now, again, I did not vote for George Bush, but he was then the 

Governor. He was running for President. Most people do not know 

this. The Governor of Texas does not have the ability to grant a 

plenary commutation. He can just grant a single 30-day reprieve. 

But he did that for Ricky McGinn, and Ricky McGinn got that test. 

But you never heard about Ricky McGinn again because Ricky 
10 

McGinn was found to have, in fact, raped and murdered Stephanie 

Flannery, his step-daughter. These victims have names. 

By the same token, eight years earlier, Roger Coleman, another 

poster boy for innocent people on death row, post——conviction, 14 

years after his death, DNA testing was conducted. A huge press 

conference was prepared. It was going to be on ‘‘Nightline’’ live. 

The envelope was opened. The Canadian laboratory had been—it 

turns out that one in 19 million possibility Roger Coleman had not 

merely raped but murdered Wanda McCoy. But good luck trying to 

find that case because it is an example of what I call ‘‘exoneration 

inflation.’’ 

And, frankly, to mention people like Roger Coleman and Ricky 

McGinn in the same breath as people like Thomas Haynesworth 

and Kirk Bloodsworth does them a dishonor. These men are genuinely exonerated. And many States have developed programs, like 

Virginia and other places, to say we are not merely going to acquit 

people, we are going to find ways to declare them exonerated. 

I commend Mr. Watkins on a conviction rate of 99 percent. I 

have been a prosecutor for 19 years, and the best I have ever been 

able to do is about 75 to 80 percent. 

I have gone into much greater detail in my written testimony, 

which I see I am beginning to run over my time, and so I want to 

just touch on one or two more points. 

One of them is I think Senator Durbin, who is not here, deserves 

credit for one of the things that we need to do to make sure that 

the right people are prosecuting and defending is to provide incentive, and when we have law students, young public defenders and 

prosecutors with debt loads of $100,000, we will never be able to 

pay them very much money. So the John R. Justice Act, which you 

have funded and it is funded through the Department of Justice, 

although at only a $4 million level, has been passed and has been 

passed through the leadership of Senator Durbin, and he deserves 

credit for that. 

If you are inclined to do other things, I would strongly suggest 

avoiding something like the Webb Commission, which seeks to do, 

as I understand it, a soup-to-nuts examination of the criminal justice system across America. The problem with that is, as Senator 

Grassley pointed out, you have 50 different systems with 50 different funding sources. If you are going to do an 18-month study, 

which is what the Webb Commission suggests, do it of the federal 

system. Frankly, you advise and consent the President on the appointment of the federal prosecutors and judges, and you fund all 

of those agencies. 

So, in closing, I would ask you to take a look; hopefully you will 

have questions from my written testimony, but I sometimes am 

concerned that—and, again, what Mr. Watkins has done is admirable. It is not the first time it has been done. For 10, 12 years, 

there have been programs in San Diego, St. Louis, and Minneapolis 

to reach out and offer inmates in prison the opportunity for free 

DNA tests. Most of them do not take it because most of them, unlike Mr. Haynesworth, are not innocent. 

If we are to believe some defense experts, we should think that 

all confessions are false and coerced, eyewitness testimony cannot 

be trusted, the police are going to basically lie, prosecutors are 
11 

going to misconduct themselves, and really we cannot trust anything. I do not believe that is true. I think there are improvements 

that we can make. There are improvements that this Committee 

can help fund. And we owe it to people like Mr. Haynesworth and 

to the many victims of crime, who, frankly, I see more than my 

constituents as the people to whom I owe my primary obligation as 

a prosecutor. 

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

for the record.] 

Chairman LEAHY. Well, Mr. Marquis, thank you. You are obviously an active prosecutor, and I agree with you, when we have 

gone at this in the Innocence Protection Act, we have not done it 

with the idea that everybody who is arrested is arrested falsely. I 

think we all know that. You have emphasized very much what I 

always felt as a prosecutor: you also have the power to withhold 

prosecution if you feel a case is not right. Prosecutors do have a 

duty to protect everybody within the system. And what I worry 

about is when you have somebody as you described, like your predecessor, who distorts the system. 

Incidentally, you did do some research if you found that I had 

been vice president of the National District Attorneys Association. 

I must tell you I was about to become elected president, but I gave 

up the honor and glory of that for the anonymity of the U.S. Senate. 

[Laughter.] 

Mr. MARQUIS. I think you did better. 

Chairman LEAHY. There are days. 

Mr. Haynesworth, I admire your courage in even coming forward 

after going through this ordeal. I think a lot of people would have 

said, ‘‘I just want to shut out the world. The world shut me out, 

I want to shut out the world.’’ You have not done that, and I applaud you for that. 

I think cases like yours are one of the reasons why I fought so 

hard for the Bloodsworth post-conviction DNA testing. If you had 

not had that DNA testing, do you think that you would have been 

able to have proven your innocence. 

Mr. HAYNESWORTH. No, sir. That was one of the biggest assets 

to my being released from prison, was the post-DNA testing. 

Chairman LEAHY. Can you describe a bit—and Senator Grassley 

and I were talking about this earlier—just how being locked up for 

a crime when you know that you did not commit the crime? How 

did you maintain your sanity for 27 years? 

Mr. HAYNESWORTH. The first thing that I did when I got in there, 

I did not finish high school, so the first thing, I went back to school 

to get my GED, and I took some trades and took three courses of 

college. So I did things to help develop my mind, and then I got 

familiar with the law. I started going to the law library, studying 

the law. I had a cell partner. He also was good with law, so we 

studied all kinds of cases, and I just started writing numerous people and trying to get somebody to help me, just telling me to take 

a chance, and if you discover some DNA testing, I will approve it. 

And I showed them I am one of those who was innocent. 

So I just did positive things, you know, to occupy my mind. I said 

that I wanted to be better coming out than I came in. And in pris-
12 

on, you know, for 27 years, I told a lot of people, it kind of was 

a blessing to me because a lot of things that I accomplished in prison, if I had never went to prison, I do not think I would accomplish 

some things. So I just kept myself grounded by doing positive 

things. 

Chairman LEAHY. Thank you very much. 

District Attorney Watkins, You work to ensure the integrity of 

convictions obtained by your office. Numbers mean nothing if there 

is not integrity in those numbers, in what you do, and I think both 

you and Mr. Marquis would agree on that. If you are going to bring 

cases, you want to know that you are bringing cases that should 

be brought. 

You described the work of the Conviction Integrity Unit, and that 

reviewed—and correct me if I am wrong in the numbers—300 

cases, as I understand it, found 25 wrongfully convicted individuals 

and set them free. 

What has been the public reaction? Did this increase their confidence in the integrity of the judicial and criminal justice system? 

Or did they say, ‘‘You guys are all wrong. Look what you did’’ ? 

Mr. WATKINS. Well, first of all, I think the perception—— 

Chairman LEAHY. This is a possible double-edged sword. I am 

just curious what happened. 

Mr. WATKINS. The perception, unfortunately, of the general citizen is that a prosecutor should seek convictions. They do not understand that statutorily—and I believe it is the law in every 

State—it is not to seek conviction but to seek justice. And when 

you would see a person walking free after 27 years—I think the 

longest person that served in Dallas County was over 30 years— 

for a crime they did not commit, it automatically gives credibility 

not only to the DA’s office but to the criminal justice system as a 

whole to show that we are pursuing just as vigorously claims of innocence as we pursue convictions. 

I take issue with the fact that there are some that want to take 

away from the importance of this work and the fact that, according 

to the numbers that they see, at this point they are minimal. 

Unfortunately, if you limit it to DNA, obviously not every case 

has DNA. But what we have seen—basically we have created a laboratory within Dallas County. We have seen cases where we would 

exonerate a person as it relates to DNA, but also we learn what 

caused that person to be convicted for a crime they did not commit. 

And so just specifically looking at DNA I believe is short-sighted. 

There are issues that we found in Dallas County and throughout 

the State of Texas which cause a person to be wrongfully convicted. 

And so it opens up this Pandora’s box of cases where there is no 

DNA. 

Chairman LEAHY. But you also put in place a number of procedures on lineups and eyewitnesses. Is that correct? 

Mr. WATKINS. We did. Eyewitness identification, of the cases that 

we have exonerated, although DNA was available, if you just look 

at the pure issues in the case, eyewitness identifications caused 90 

percent of the wrongful convictions. Like the district attorney from 

Oregon said, in 1984 we did not have DNA, but we did have eyewitness identification, which proved to be flawed. 
13 

And so the next phase—I mean, we have done this in Dallas 

County—is to look at those cases where there is no DNA, and we 

have exonerated several individuals, and the Court of Criminal Appeals has upheld those exonerations where there is no DNA, there 

is no science. There was prosecutorial misconduct. There was police 

misconduct. 

Chairman LEAHY. How do you feel about videotaping interviews 

of suspects or even of witnesses? 

Mr. WATKINS. I think, you know, we should. We have the technology to do it. It is very inexpensive. I have an iPhone, and I am 

sure that most police officers have a phone that will video record 

a confession. And so I think it is appropriate for us at some point 

to legislate that that should be done, because we even had false 

confessions. 

I mentioned the deaf individual who was convicted for the crime 

that he did not commit and spent several years in prison. He actually confessed to the crime, and DNA proved that he did not do it. 

But he confessed under duress. He spent over 24 hours under interrogation, and he is deaf. He does not hear. There was never a 

point where they offered a person that knew sign language to come 

in and interrogate that individual. Under pressure, he said he committed the crime. But he did not. 

I believe that this issue of wrongful convictions is more rampant 

than what the numbers show. We only have DNA in a few cases, 

and we can only prove it scientifically with those cases where there 

is DNA. But we can look at the elements of all of those cases outside of the DNA aspect and see that you can apply those same 

issues to cases where there is no DNA. 

Chairman LEAHY. What I am going to do is go to vote. I am going 

to turn it over to Senator Klobuchar, and if there is nobody here 

when you finish, if you could just recess for a few minutes, because 

I will be back. Another former prosecutor. 

Senator KLOBUCHAR. [Presiding.] Well, very good. Thank you, 

Chairman Leahy. I am not only a former prosecutor, but our county, Hennepin County, when I was there, took a lead on some of this 

work, worked with the Innocence Project, and we actually did a 

DNA review, as did Ramsey County, which includes St. Paul across 

the river, and reviewed all of our homicide conviction cases and 

with the DNA evidence and the new types of DNA that we had. We 

actually did not find wrongful convictions and did not have that 

problem in our own county, but I think Ramsey County had one 

that they brought forward. And to this day, I really do not understand why people, as you have pointed out, Mr. Watkins, would not 

want to do this, because our job as prosecutors is, as the title of 

this hearing, to convict the guilty and protect the innocent. And we 

saw that as a broader mission. 

The other thing we did in Minnesota, as I think we were one of 

the first States—I know this—by a Supreme Court order of our 

Minnesota Supreme Court, we required that all interrogations be 

videotaped. And at first, the police and prosecutors were really concerned about this. It ended up being a very positive thing, and they 

did not want to get rid of it, to the point where our police chiefs 

would go and talk about it nationally, because it actually was some 

protection for their officers if there were any claims made of police 
14 

brutality that were not correct. It also was a way for prosecutors 

to see firsthand a defendant being interrogated. And we actually 

found it not only protected the rights of the defendant, but we also 

found that it helped us in some cases. 

We had one case where a guy said he was blind so he could not 

have committed the crime, and then the police officer left and the 

guy got a piece of paper out of his pocket and started reading it 

on TV. That actually happened. 

Another guy they left, and he looked down at his shoes and said, 

‘‘[expletive deleted], I have blood on my shoes.’’ Take that off the 

record, that comment, but that is what he said. And so they had 

not discovered it. 

So these were things that would not have happened if we did not 

have that requirement that was put in place to protect defendants’ 

rights. But I think it made it better for everyone. 

We also, when I was county attorney, embarked on a new way 

of doing eyewitness ID, which, especially in some of the sexual assault cases, turned out to be the No. 1 reason false ID that people 

were wrongfully convicted, and we had someone similar to Mr. 

Haynesworth come up from another State and talk about what had 

happened. And we ended up actually using a different kind of ID 

that was researched that came out of Iowa and which, instead of 

looking at all the pictures at once, we looked at them one at a time 

when witnesses came in. 

So we have done a number of things, and I just wondered if you 

have looked into that at all, Mr. Watkins, the idea of the sequential 

versus simultaneous ID and what the—I have not been caught up 

for the last few years on what is happening with that nationally, 

in addition to the videotape question that was asked earlier by 

Senator Leahy. 

Mr. WATKINS. Sure. We in 2009 lobbied our State lawmakers to 

put legislation in place that required a standard as it relates to 

eyewitness identification, which took away the old standard and 

went to the double-blind system. And it is not a standard that is 

actually placed inherently on different jurisdictions, but it is a 

model, and that model is being followed by the majority of the jurisdictions in Dallas County and throughout the State of Texas at 

this point. 

Another issue I want to point out is a lot of folks, when we have 

this conversation about wrongful convictions, you think about defendant rights. Well, as a prosecutor, I see it somewhat differently. 

I look at victims’ rights. And in all of the cases, several of the cases 

that we have actually exonerated the individual, we went and 

found the person who actually committed the crime. And sometimes it would be 20, 30 years later. And what we found is that 

the person that actually committed the crime continued to commit 

those same types of crimes after the person was wrongfully convicted. 

Senator KLOBUCHAR. Exactly. 

Mr. WATKINS. So we have done a disservice overall to our society 

by turning a blind eye to this issue. We allow the actual perpetrator, the actual criminal to continue to wreak havoc on society, 

when if we, you know, step back, take a look, and explore the mistakes that have been made and try to fix them, then we can actu-
15 

ally truly get the perpetrator off the street, not waste our tax dollars on someone like Mr. Haynesworth, and protect society. 

Senator KLOBUCHAR. Exactly. And I think the way you describe 

that is very important for people to understand. 

Anything you would like to add? I do not want to miss the vote 

here, but, Mr. Marquis. 

Mr. MARQUIS. Thank you, Senator Klobuchar. Yes, I think as a 

prosecutor—and you were one so you know what I am talking 

about—it is infinitely desirable to get preferably a video, and if not 

that, at least an audio, statement of the defendant. In my written 

testimony, I point out what the uniform standard jury instruction 

is in my State, and it is not exactly favorable. It tells the jury: You 

should view any statement said to be made by the defendant with 

great caution. The officer may have intentionally or deliberately— 

you know, blah, blah, blah. I mean, it is—so if you have a recording 

of it, that is desirable. 

One of the things that—however, we have to remember that for 

the No. 9 size office that Mr. Watkins runs, you ran, I think, a couple hundred? 

Senator KLOBUCHAR. We had 400 employees. 

Mr. MARQUIS. Okay. Those are, frankly, rarities. I run, by American standards, a medium-sized DA’s office. I have six deputies. 

The average prosecutor’s office in the United States is one DA, one 

assistant, and six support staff. There are thousands, literally, of 

elected prosecutors. 

So what I do, I spend thousands of dollars every year——well, 

try to—to equip these seven police agencies in my jurisdiction. 

However, if we say if you do not do this, we are going to exclude 

the statement, you are going to keep truthful evidence. So what we 

need to do is incentivize, for example, by having a uniform instruction that says, ‘‘If you tape, then you should give it extra consideration.’’ 

Senator KLOBUCHAR. Okay. 

Mr. MARQUIS. The same thing, by the way, on—— 

Senator KLOBUCHAR. You know what, Mr. Marquis? I am going 

to a place that does not have a lot of mercy. That is the U.S. Senate floor. And I could miss the vote if I do not get back. So I am 

going to go back, and then if I am not able to return, we will ask 

in writing to allow you to finish, and I know some of my colleagues 

have questions as well. 

I wanted to thank you all, and we are going to go into a recess 

right now, and then Senator Leahy will return, and Senator 

Franken. Thank you. 

Mr. MARQUIS. Thank you. 

[Recess at 10:58 a.m. to 11:13 a.m.] 

Senator GRASSLEY [Presiding]. Could I call the meeting to order? 

The Chairman said that it was okay if I went ahead in his absence, 

so I think it was my turn to ask questions. I thank all the participants for their testimony and going out of their way to help us decide public policy. 

I am going to ask a question of Mr. Marquis. When an innocent 

person is discovered, every possible measure ought to be taken to 

release them from prison and clear their name. What is not clear, 

however, is how frequently this occurs and what should be done to 
16 

reduce the chance of it happening. Mr. Marquis, you have written 

that the actual percentage of wrongful convictions is extremely low, 

and it seems that many of the wrongful convictions are from old 

cases, mainly the 1980s and earlier, before DNA testing was widely 

used. 

Mr. Marquis, do you agree with Mr. Watkins that there are a lot 

of these cases out there? That is the first question. 

Mr. MARQUIS. Senator Grassley, with all due respect, I cannot 

speak to Dallas because I have never been there, and I do not know 

what happened before he was district attorney, elected, I think, in 

2007 or 2008. But, no, if we are talking about the universe of the 

United States, where I have the privilege of traveling around and 

talking, giving trainings to prosecutors on ethics. 

In 2005, a man named Samuel Gross, who is a professor at the 

University of Michigan, did a study about wrongful convictions, 

and he did not confine it to DNA. He also took cases where there 

had been confessions by other people in prison, which is not an uncommon way, or recantations by the victim, by the eyewitness, a 

series of others, and did not just confine it to murders. It was also 

robberies and rapes. He came up with about 390 cases in a 15-year 

period from 1989 to 2003, and he offered the position, which was 

not unreasonable, that, well, there probably are more because these 

just are the ones that we know about from DNA and other matters. 

So I said, okay, everything is in context. You have to look at everything in context. So let us take his number, round it up to 400, 

and then multiply it by 10. And I do not believe, by the way, that 

there are 4,000 wrongful murder and rape convictions in the 

United States in that 15-year period. I have no doubt that there 

were wrongful convictions, and maybe 400 was an accurate number. But, again, just for the purposes of trying to quantify this, I 

said let us take it and multiply it by 10. 

So then you have to say, okay, out of what universe? Well, if you 

look at the Bureau of Justice Statistics numbers for that time period, and just assuming that we are talking about willful homicide 

and forcible rape, it is 1.5 million. So you divide the 1.5 million by 

4,000, and you come up with an 99.27 percent rightful conviction 

rate. 

Now, if you are in the one-half or one-quarter of one percent that 

is wrongfully convicted, that is small consolation for you. But as I 

think I pointed out in my testimony, in the United States every 

year pharmacists kill about 10,000 or 12,000 people—not deliberately—and medical mistakes cost over 15,000 deaths. 

Now, as Mr. Watkins, I think, correctly said, what do you do? 

You do not just sit back—or on the planes, I mean, the airline I 

flew here on has killed 290 people since the death penalty was reinstated in 1976. I just use that. But I get on the plane. I had real 

severe turbulence coming here, and I was worried there for a 

minute. But I am not worried about the plane crashing because I 

am confident, as Mr. Watkins says, that they are going to inspect 

that plane, they are going to update it, and we have to do the same 

thing with the criminal justice system. We have to make sure. 

But to answer your—I hope I answered your question, Senator 

Grassley. I think the idea to say that wrongful convictions do not 

happen, obviously Mr. Haynesworth is an example of a wrongful 
17 

conviction. Mr. Bloodsworth is. But, again, as a former journalist, 

their cases are rare enough; they make headlines. That does not 

mean we can lower our guard, but there are people who say three 

to five percent of the people in prison are there wrongfully. I would 

quit my job and, you know, go do something else if I thought it was 

anything remotely like that. 

Senator GRASSLEY. I think I am satisfied that what you just said 

answers this question, but if you have something to add, I would 

let you add it. Do the cases of exoneration that we have heard 

about call into question the integrity of the entire criminal justice 

system? 

Mr. MARQUIS. No, I think they—some of them, like Mr. 

Haynesworth’s—if DNA had been in effect in 1984—in 1982 I think 

is when you were—1984, and had been properly used, what would 

happen is what happens now. The reason that you are seeing a 

drop-off in DNA exonerations is that police are using DNA at the 

front end. 

There is always going to be a tiny number of rogue prosecutors 

who do bad things, like my predecessor, and there are always going 

to be a small number of cops who are willing to, you know, do as 

much as commit perjury. So I do not—the question, again, and I 

have said it before, is: Is this problem epidemic or is it episodic? 

And that does not diminish it. That does not mean, oh, well, if it 

is only episodic, then we do not have to really worry about it. But 

I think we do a tremendous disservice to the men and women in 

prosecution and, as Senator Klobuchar said, she was, you know, 

doing a program not exactly the same, but similar to what Mr. 

Watkins was doing, I think, 10 years ago. If we imply that somehow—if we were to believe popular culture in America, which is 

that, you know, any person, any one of us in this room, could be 

grabbed off the street at any time and wrongfully convicted of a 

crime. Does it happen? Yes. Does it happen a lot? No. 

Senator GRASSLEY. When a convicted criminal claims innocence 

and demands additional DNA testing, who should pay for that test? 

If a DNA test then confirms his conviction, should the criminal 

bear any responsibility or consequences for knowingly using public 

resources, which are limited? 

Mr. MARQUIS. Well, the National District Attorneys Association, 

who I represent, believes that DNA testing ought to be available 

to any inmate at any stage of a proceeding, even if they have been 

convicted, all of their appeals have been exhausted, and, again, 

many of the programs—the one in San Diego, the one in Minnesota, the one is St. Louis—one of the things that was striking 

about them is that, as Senator Klobuchar said, they did not find 

any people in her jurisdiction. Frankly, trying to get the money out 

of somebody who is doing prison time, Senator Grassley, is going 

to be almost impossible. I do not have any problem with the State 

paying for it. I think we should make DNA universally available, 

and I want to commend the State of New York that just two weeks 

ago made DNA collection universal for all arrestees. And, frankly, 

it ought to probably be lawyers and law enforcement. They take 

our fingerprints. Why not take a swab of our DNA? 
18 

Senator GRASSLEY. I have had my time, Senator, but if you are 

not ready, I have got one more question. But if you are ready, go 

ahead. 

Chairman LEAHY [Presiding]. Go ahead. 

Senator GRASSLEY. Sometimes we forget the basic principle here 

in Washington about separation of powers and restrict ourselves to 

carrying out constitutional responsibilities without intruding on the 

States. For example, most crimes are prosecuted by State authorities, especially street-level crimes like rape and murder, that seem 

to produce the greatest number of exonerations. 

A three-part question, and let me ask all three parts. What 

should the Federal Government’s role be in preventing wrongful 

convictions at the State level? Do you favor a federal review of 

State criminal justice systems like the Webb Commission? And I 

know you spoke about that some in your remarks. And what implications would result from federal interference in State prosecutions? 

Mr. MARQUIS. Well, in terms of wrongful convictions, I think 

that, for example, if the Federal Government can help make 

CODIS, the national data bank, truly national, make it available, 

increase the number of categories where DNA and, for example, 

not shy away from what are called ‘‘warm’’ or ‘‘familial’’ DNA hits, 

where, for example, you know that the brother is not the person 

but is very close—there has been some reluctance, frankly, on the 

part of the FBI to do that. There should not be, if it helps us, if 

the ultimate goal is to find the person who did it. 

Certainly the John R. Justice Act that Senator Durbin—in terms 

of having experienced and good prosecutors and defense attorneys—is going to reduce wrongful convictions. There is nothing 

worse than having someone, frankly, in a DA’s office who only 

thinks they are going to be there for four years to get their name 

in the paper so they can run for some higher office or, you know, 

get their name in the paper so they can become a wealthy attorney. 

We are seeing a lot of professionalization of prosecutors’ offices. 

And, by the way, I am long since being able to be the personal beneficiary of loan forgiveness, but it means a great deal when I talk 

around the country. So I think that and some of the aspects of the 

Justice for All Act have been very helpful. 

On the Webb Commission, as I said, to be blunt, an 18-month review made up of people appointed entirely by the President and the 

Congress, both Democrats and Republicans, no stakeholder spots 

for defense lawyers, trial judges, prosecutors, or cops, the people 

who are involved in what, as you point out, are 97 to 98 percent 

of all criminal prosecutions in America, and with all due respect, 

Congress is not paying for those. Those programs are all being paid 

for by State legislatures that in some places, like California, are 

emptying prisons in enormous levels. So to do that in 18 months, 

I think, is unrealistic, to say the least. 

And as I said, if Congress is interested in doing that, then why 

not confine it to that over which you have direct control, the federal 

prosecutors who you appoint, the federal judges who you advise 

and consent, and the various oversight that you have on the alphabet soup of federal agencies. 
19 

And, finally, to answer your question, the problem that comes 

from that is that if, for example, let us say the Webb Commission 

were to say we want to have—we are setting a national standard 

that every interview must be videotaped—which, by the way, I 

think would be great. As I said previously, as a prosecutor I want 

them to be taped so there is no question about what was said. Well, 

if there is no money that comes along with that for the roughly, 

I do not know, 2,000 non-metropolitan jurisdictions, how are we 

going to fund it? I mean, this sounds incredibly small potatoes, but 

a small police department that has been told that they have got to 

outfit every one of their cars with a video system and every one of 

their interview rooms, if they do not have the money to do it, they 

cannot. 

So I think there is—I know that Senator Coburn, who I think 

normally sits on this Committee, and Senator Kay Bailey 

Hutchison spoke very strongly against the Webb Commission for 

exactly that reason. 

I hope that answers your question, Senator. 

Senator GRASSLEY. Thank you, Senator. 

Chairman LEAHY. Thank you. I would note that States are happy 

to accept help from the Federal Government, whether it is using 

the FBI lab or the bulletproof vest bill or a number of other things. 

So asking for something in return, provided we provide the money, 

should not be a bad idea. 

Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman. 

Mr. Watkins, I would like to ask you about forensic medical 

exams, specifically rape kits. Sexual assault is truly a heinous 

crime. It is also startlingly common. The Bureau of Justice Statistics estimates that there were about 188,000 incidents of rape or 

sexual assault in 2010. We have an obligation to help these victims, and the availability of DNA evidence gives us an opportunity 

to do so. 

I introduced the Justice for Survivors of Sexual Assault Act, 

which would help reduce the backlog of untested rape kits and 

would guarantee that no woman ever suffers the indignity of paying for her own exam. And I would like to thank Chairman Leahy 

for his leadership on the Violence Against Women Reauthorization 

Act, which includes some of my key provisions, and I hope the Senate has an opportunity to vote on this bill soon. 

Mr. Watkins, drawing on your experience as a district attorney, 

can you talk about the importance of DNA evidence in prosecuting 

rape and sexual assault cases? 

Mr. WATKINS. Sure. Obviously, when we are talking about sexual 

assaults and proving these cases in court, DNA is tantamount to 

us having the ability to do that. In Dallas County, we went a step 

further. In fact, in Dallas County—it is the ninth largest county in 

the country—we only had one hospital that had what is called a 

SANE nurse, a sexual assault nurse examiner. That nurse is basically trained to take the evidence for a rape kit and is also trained 

to come to court and testify as it relates to those rape kits. And 

we were able to put in place at all the hospitals within Dallas 

County the ability to have this procedure done by folks that eventually will be able to come to court and testify to them. 
20 

Not only did we do that, we actually have a storage facility that 

will store that evidence in perpetuity. So if we do not know who 

committed the crime, and if it so happens that the person did commit the crime and they had been arrested and been to prison before, we can upload that information in what is called the CODIS 

system and get a match and bring that person to prosecution. 

You know, jurors are very sophisticated these days. They watch 

a lot of TV, and, unfortunately, they think that, you know, they are 

going to get the same evidence that they get on TV like they see 

on ‘‘CSI.’’ But that is not the case. But they want that. And so the 

more opportunity that we have to solidify scientific evidence and 

store it and keep it and bring it to their attention at a trial, the 

more opportunity we have to convict a person for committing the 

crime. 

Senator FRANKEN. Thank you. 

Mr. Haynesworth, we often hear about wrongful convictions in 

terms of statistics. Data compiled by the Innocence Project shows 

that more than 280 convicted individuals have been exonerated 

through DNA testing in the past 20 years, and in nearly half of 

those cases, the real suspect ultimately was found. Those statistics 

are, of course, important, but we cannot lose sight of the human 

toll caused by wrongful convictions. And, Mr. Haynesworth, I want 

to thank you for being here and reminding us of the human pain 

and suffering that this problem causes. 

A lot of people might have given up hope after so many years behind bars. What gave you the courage to keep fighting for your 

freedom? 

Mr. HAYNESWORTH. I think one of the most things was that when 

I got locked up in 1984, like I stated, I told everybody I was innocent, and I told the detective I was innocent, and the detective who 

worked my case did not believe me. He said, ‘‘No, we got the right 

man. You are the one.’’ And from day one, I said I will prove my 

innocence, I will prove to them that they were wrong. I did not 

want to walk around being portrayed as something that I was not. 

You know, I was not in prison because of my fault, but somebody 

else’s mistake. 

When I first got involved with my lawyer, Sean, I stated to her 

that I was innocent. I even told her who I thought the perpetrator 

was, and it came I was right who this person was. 

But then my faith in God, you know, my belief growing up in a 

Christian home and having faith in God that I knew and believed 

that one day, you know, the truth would come out, it just was a 

matter of fact that if I said they had my DNA, I knew I could prove 

my innocence. 

So I just had my faith in God and the belief that one day my 

DNA would be discovered, and the day came I found out it had 

been discovered. 

So I just think, you know, all the people who were there for me, 

Sean, the Innocence Project, you know, for the work they had done, 

supported me and stand behind me. 

Senator FRANKEN. You wanted to clear your name. 

Mr. HAYNESWORTH. That is the best thing. You know, I wanted 

to clear my name and prove to everybody that I was innocent, because I had a lot of persons even in my family that doubted my 
21 

innocence, and I wanted to prove to them that, you know, you have 

got five women who said that you raped and attacked them, and 

everybody said that all five cannot be wrong. So I just wanted to 

prove that and just clear my name. 

Senator FRANKEN. Thank you. 

Mr. Chairman, would it be okay if I asked a couple more questions? Thank you. 

Mr. Marquis, thank you for your written testimony. I am sorry 

I was not here for your oral testimony. You highlighted the John 

R. Justice Loan Forgiveness Program, which I support. I agree with 

you that loan forgiveness plays an important role in recruiting and 

retaining quality attorneys to serve as prosecutors and defenders. 

While we agree on that, it seems that we disagree about the 

Webb Commission, which you criticized. You said that the proposed 

Commission has ‘‘no dedicated positions for any stakeholders (defense attorneys, trial judges, or prosecutors).’’ I am reading that 

from page 8 of your written testimony. But the bill does require 

that the Commission be comprised of ‘‘individuals with distinguished reputations for integrity and nonpartisanship who are nationally recognized for expertise, knowledge, or experience in such 

relevant areas as law enforcement, criminal justice, court administration,’’ and other relevant fields. That is Section 6, paragraph (b) 

of the Webb Commission bill. 

I guess my question is this: Would you support the Webb Commission if it included defense attorneys, prosecutors, and judges 

who meet that description? 

Mr. MARQUIS. Well, forgive me for being too much of a lawyer, 

Senator Franken, but the language that you read to me was kind 

of spongy. In other words, it said people who—distinguished fields. 

When I say stakeholders, I meant literally, you know, public defenders, judges, et cetera. 

I have got a couple other problems with the Webb Commission. 

Part of it is just the time period. Eighteen months is an extraordinarily short period of time. If I understand correctly, the intention is to do a top-to-bottom review of the American justice system, 

and I am assuming that means the entire American justice system, 

not just the federal one. And there is a lot of discussion about what 

happened back in the 1960s. There were, for example, a lot of—in 

response to the civil rights movement, police brutality, which we all 

saw on television, or at least I did when I was a kid, and those 

commissions begat in turn the Law Enforcement Assistance Administration, which is long a blessed memory, but it professionalized police departments. It poured a huge amount of money into it, 

but to the good. 

If the Webb Commission, or something like it—I know that is not 

the official name of it—were to do something like that, were to take 

a long view and be prepared even in these tough economic times 

to say, well, we are going to step in and make sure that, for example, the DNA labs—you make a really good point. For example, it 

is not just DNA testing. In order, for example, for child abuse to 

be adequately prosecuted, what have cropped up all around the 

country are Child Abuse Assessment Centers where children are 

interviewed not five times but once, usually on videotape, so there 

is no question about the children having been suggested by an 
22 

overzealous police officer, et cetera. Those have made dramatic 

changes in terms of how child abuse cases are prosecuted. We even 

have one in my little county in Oregon. And SANE nurses are one 

way—I am shocked to hear there is only one SANE nurse in Dallas. You know, I think we have two in my county, and I am only 

40,000 population. 

I jumped around a little bit, but I hope I answered your question, 

Senator. 

Senator FRANKEN. Well, I think you bring up very valid points. 

What if the language said including the categories defense attorneys, prosecutors, and judges, and that the time was extended? In 

other words, do you think that—we have a real crisis in this country, and it seems like we have to do something about our criminal 

justice system. We have less than five percent of the world’s population, but we have nearly a quarter of its prisoners. The cost of 

our correction system is staggering. The Vera Institute estimates 

that my State’s taxpayers pay more than $41,000 per year per inmate. That is not sustainable. 

So I think we need reform, and, you know, to me reform means 

early childhood education, it means getting at it before it starts, 

and that sort of thing. But a Webb Commission or something like 

it seems like a good start to me, and I think that if you selected 

a bipartisan group of experts, including maybe the categories that 

you mentioned, is a ‘‘there’’ there for you? 

Mr. MARQUIS. I think there might be, and I am sort of putting 

on my hat—I am on the executive Committee of the National District Attorneys Association, which, frankly, I think was the only national organization to publicly oppose the—I think the chiefs of the 

police and the sheriffs actually supported the Webb Commission. I 

think the things that you are talking about, Senator, would go a 

long way toward assuaging some of those. 

You know, Minnesota, as you probably know, I think is either 

48th or 49th in incarceration rates in the country. You are way, 

way down there. My State is number 30, and our approximate incarceration cost per inmate is about $25,000. 

You know, clearly we can always do better, and—— 

Senator FRANKEN. Well, I think that ‘‘we can always do better’’ 

is sort of a bromide that can be applied to anything. 

Mr. MARQUIS. Well, then, let me be—— 

[Laughter.] 

Senator FRANKEN. I am sorry. 

Mr. MARQUIS. Then let me be more specific, Senator. If the federal—— 

Senator FRANKEN. I crack myself up. 

[Laughter.] 

Mr. MARQUIS. If the Federal Government was willing to invest 

significant amounts of money in both public defenders offices, if 

that was necessary, in DAs’ offices—not federal—if they were willing to do that as part of it, then, yes, I think it probably—but if 

it is just to say we are going to make these broad, sweeping recommendations and, oh, by the way, have a nice day figuring out 

how you are going to fund all of this—— 

Senator FRANKEN. Okay. Well, I—— 
23 

Chairman LEAHY. Could I play devil’s advocate just a little bit? 

You know what it costs you to have these people locked up. You 

know what recidivism costs you. And my little State of Vermont 

has to struggle with this all the time. There is also a payoff for the 

taxpayers if it is done better. 

Senator FRANKEN. Actually, I was going to say, ‘‘Thank you,’’ and 

then go. So thank you. 

Chairman LEAHY. You do not want to hear what I have to say? 

Senator FRANKEN. I do, and I will have my staff—— 

Chairman LEAHY. Read the record? 

Senator FRANKEN. Play me the entire remarks that you give. 

Chairman LEAHY. You know, ‘‘We will check what you said in the 

record’’ fits right up there with, ‘‘The check is in the mail.’’ 

[Laughter.] 

Senator FRANKEN. No. I want the video of it. 

Chairman LEAHY. Well, thank you. 

Senator FRANKEN. I want to get the real impact. I have got to 

go to something. That is all. 

Chairman LEAHY. Thank you very much. 

But the balance, I mean, I understand what you are saying, Mr. 

Marquis. Our State is small enough that even though I have a 

quarter of the State’s population in my county when I was prosecutor, it was still pretty small. And you could look at all these 

things you wanted to and say, okay, great, how do we pay for it? 

But I think at some point we have got to find a balance in here, 

whether it is on drug laws where taking cocaine, for example, if 

you are a well-paid stockbroker on Wall Street and you get caught 

with $500 worth of powder cocaine, people say, ‘‘Oh, what a tragedy. Such a wonderful person. We will give him 20 hours’ community service, and maybe he should write an essay for high school 

not to do that.’’ If you are kid in the ghetto and you get crack cocaine and it costs the same amount of money, you are going to go 

to prison for 20 years. 

Something is wrong with that, society suffers, and I think we all 

suffer on that. Now, that is a case where if it is a federal law, we 

should be doing better things about changing some of those disparities in penalties. We have taken a first step forward. We have got 

to do a lot more. Prosecutors can do a lot, of course, on discretion. 

But, still, what Senator Franken said about the percentage of number of people who are locked up in our country, something is breaking down. 

Mr. MARQUIS. Well, Senator, a couple things. You just pointed 

out, correctly, that the federal Sentencing Guidelines that are so 

draconian are precisely that—they are federal. In my State, on 

your 27th conviction for possession of heroin or cocaine, the judge 

does not have the authority to send you to prison, even if they 

want to. The maximum sentence is 30 days in jail, and they are 

probably not even going to get that, even though I have family 

members literally coming and saying, ‘‘Please lock them up. We 

cannot afford an inpatient program, and at least they will not be 

using while they are in your jail.’’ 

But I think when we talk about the system, we also have to recognize that in the last 20 years in America, I mean, think about 

the Presidential election in 1988 when crime was a major issue, 
24 

there was that infamous Willie Horton ad by George Bush against 

Michael Dukakis, which most people considered pretty vile and racist, and why did that all happen? Because violent crime in this 

country was pretty much out of control. Murders are down almost 

50 percent in 20 years. The number of victims is dramatically 

lower. 

In terms of reducing the number of people who are raped and 

killed in this country, we are doing much, much better. And I 

would not suggest that it is at the—we are not simply incarcerating more and more people. If I can take the Occupy people for 

a moment, the one and 99 percent, it has nothing to do with 

money. One percent of the population victimizes 99 percent of the 

population. And the question is: How do you deal with that one 

percent? Most of us at the State level, Senator, have developed 

drug courts and alternative programs for even chronic drug possessors because we recognize that throwing them in prison just does 

not do any good. And for the most part, in States like Oregon, 77 

percent of felons in my State do not go to prison. They get probationary sentences. 

So, yes, I think when I say we can do better, I mean both the 

things that Mr. Watkins is talking about, what Senator Klobuchar 

is talking about, and if a federal commission would help grease the 

skids for helping pay for and recognize some of these things that, 

frankly, cost dollars, all the better. 

Chairman LEAHY. I am just suggesting that we ought to figure 

out just how we spend our dollars. I considered myself a pretty active prosecutor. When I was there, I was the one person the police 

could always find at two o’clock or three o’clock in the morning. I 

went to more crime scenes than most people will ever see in their 

life during that time. 

But I thank you for the testimony. I think we have a long way 

to go. The most important thing, though—and I think everybody 

would agree with this, whether you are a prosecutor or defense attorney—is that when you prosecute somebody, you want to make 

sure you have the right person because juries can make mistakes 

and juries do make mistakes. And law enforcement can make a 

mistake. 

One of the things, when people say, ‘‘Oh, great, they arrested 

that guy,’’ they forget that if they got the wrong guy, the person 

who committed the crime is still out there and probably will do it 

again. 

I thank you all very much. We will leave the record open for the 

rest of the week for further questions. 

[Whereupon, at 11:43 a.m., the Committee was adjourned.] 
(25) 

A P P E N D I X 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
26 

PREPARED STATEMENT OF CHAIRMAN PATRICK LEAHY
27 
28 

PREPARED STATEMENT OF CRAIG WATKINS, DISTRICT ATTORNEY FOR DALLAS COUNTY, 

DALLAS, TEXAS
29 
30 
31 
32 
33 

PREPARED STATEMENT OF THOMAS HAYNESWORTH, RICHMOND VIRGINIA
34 
35 
36 

PREPARED STATEMENT OF JOSHUA MARQUIS, DISTRICT ATTORNEY FOR CLATSOP

COUNTY, ASTORIA, OREGON
37 
38 
39 
40 
41 
42 
43 
44 
45 
46 
47 

QUESTIONS SUBMITTED BY SENATOR CHUCK GRASSLEY FOR JOSHUA MARQUIS
48 
49 

QUESTIONS SUBMITTED BY SENATOR CHUCK GRASSLEY FOR CRAIG WATKINS
50 

QUESTIONS SUBMITTED BY SENATOR AMY KLOBUCHAR FOR JOSHUA MARQUIS
51 

RESPONSES OF JOSHUA MARQUIS TO QUESTIONS SUBMITTED BY SENATOR GRASSLEY
52 
53 
54 
55 
56 

RESPONSES OF JOSHUA MARQUIS TO QUESTIONS SUBMITTED BY SENATOR KLOBUCHAR
57 
58 
59 
60 
61 
62 

NOTE: At the time of printing, after several attempts to obtain 

responses to the written questions, the Committee had not received 

any communication from Craig Watkins. 
63 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD

TESTIMONY OF KIRK BLOODSWORTH, DEATH ROW INMATE EXONERATED BY DNA, 

MARCH 21, 2010 
64 

‘‘RIGHTFUL CONVICTIONS,’’ POSTED BY JOSHUA MARQUIS, WWW.CATO-UNBOUND.ORG, 

MARCH 7, 2012 
65 
66 
67 
68 

BARBARA PARKER HERVEY, JUDGE, TEXAS COURT OF CRIMINAL APPEALS, MARCH 21, 

2012, STATEMENT
69 
70 
71 
72 
73 
74 
75 
76 
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TESTIMONY OF THOMAS HAYNESWORTH, THE MID-ATLANTIC INNOCENCE PROJECT, 

AND THE INNOCENCE PROJECT, MARCH 21, 2012 
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79 
80 
81 
82 
83 
84 
85 
86 
87 
88 
89 
90 
91 
92 
93 
94 

INNOCENCE PROJECT NATIONAL CRIMINAL JUSTICE COMMISSION ACT (S. 306) LETTER

TO SENATE, SEPTEMBER 2011 
95 
96 

LETTER TO SENATOR LEAHY FROM MARY LOU LEARY, U.S. DEPARTMENT OF JUSTICE, 

MARCH 21, 2012 
97 
98 
99 

LETTER TO SENATOR LEAHY FROM STEPHEN SALOOM, ESQ., POLICY DIRECTOR, 

INNOCENCE PROJECT
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THE NATIONAL CRIMINAL JUSTICE COMMISSION ACT OF 2011, S.306, FACT SHEET
101 

ENDORSEMENT LETTER FROM NATIONAL ORGANIZATIONS, BUSINESSES, AND STATE AND

LOCAL ORGANIZATIONS FOR THE NATIONAL CRIMINAL JUSTICE COMMISSION ACT OF

2011 
102 
103 
104 

‘‘THE INNOCENT AND THE SHAMMED,’’ BY JOSHUA MARQUIS, OP-ED CONTRIBUTOR, New 

York Times, January 26, 2006 
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106 
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SCOTT SHELLENBERGER, STATE’S ATTORNEY FOR BALTIMORE COUNTY, MARYLAND, 

WRITTEN TESTIMONY
108 

Æ