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REAUTHORIZATION AND IMPROVEMENT OF DNA 

INITIATIVES OF THE JUSTICE FOR ALL ACT 

OF 2004 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

APRIL 10, 2008 

Serial No. 110–145 

Printed for the use of the Committee on the Judiciary 

( 

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

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

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

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

JERROLD NADLER, New York 

HANK JOHNSON, Georgia 

ANTHONY D. WEINER, New York 

SHEILA JACKSON LEE, Texas 

ARTUR DAVIS, Alabama 

TAMMY BALDWIN, Wisconsin 

BETTY SUTTON, Ohio 

LOUIE GOHMERT, Texas 

J. RANDY FORBES, Virginia 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

BOBBY VASSAR, Chief Counsel 

CAROLINE LYNCH, Minority Counsel 

(III) 

C O N T E N T S 

APRIL 10, 2008 

Page 

OPENING STATEMENTS 

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

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

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

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

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

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

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

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

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Member, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 5 

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

of Texas, and Ranking Member, Committee on the Judiciary ......................... 5 

WITNESSES 

The Honorable Carolyn Maloney, a Representative in Congress from the 

State of New York 

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

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

The Honorable David G. Reichert, a Representative in Congress from the 

State of Washington 

Oral Testimony ..................................................................................................... 10 

Prepared Statement ............................................................................................. 12 

Ms. Debbie Smith, Charles City, VA 

Oral Testimony ..................................................................................................... 14 

Prepared Statement ............................................................................................. 16 

Mr. David W. Hagy, Director, National Institute of Justice, Office of Justice 

Programs, U.S. Department of Justice, Washington, DC 

Oral Testimony ..................................................................................................... 18 

Prepared Statement ............................................................................................. 20 

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

Richmond, VA 

Oral Testimony ..................................................................................................... 28 

Prepared Statement ............................................................................................. 30 

Mr. Levon Brooks, wrongfully convicted of murder and exonerated through 

DNA evidence 

Oral Testimony ..................................................................................................... 42 

Mr. Peter Neufeld, Co-Founder and Co-Director, Innocence Project, New York, 

NY 

Oral Testimony ..................................................................................................... 42 

Prepared Statement ............................................................................................. 45 

Page

IV 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of Angelo Della Manna, Chief of Forensic Biology & 

DNA, Alabama Department of Forensic Sciences, Birmingham, AL, submitted by the Honorable Artur Davis, a Representative in Congress from 

the State of Alabama, and Member, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 107 

Birmingham News article entitled ‘‘DNA Testing for Arthur,’’ submitted by 

the Honorable Artur Davis, a Representative in Congress from the State 

of Alabama, and Member, Subcommittee on Crime, Terrorism, and Homeland Security ........................................................................................................ 125 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 143 

(1) 

REAUTHORIZATION AND IMPROVEMENT OF 

DNA INITIATIVES OF THE JUSTICE FOR ALL 

ACT OF 2004 

THURSDAY, APRIL 10, 2008 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:07 a.m., in 

room 2141, Rayburn House Office Building, the Honorable Robert 

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

Present: Representatives Conyers, Scott, Waters, Delahunt, Nadler, Johnson, Weiner, Jackson Lee, Davis, Baldwin, Sutton, Smith, 

Gohmert, Forbes, Sensenbrenner, Coble, Chabot, and Lungren. 

Staff present: Mario Dispenza, Majority Fellow/Counsel; Karen 

Wilkinson, Majority Fellow/Counsel; Veronica Eligan, Majority Professional Staff Member; Caroline Lynch, Minority Counsel; Kimani 

Little, Minority Counsel; and Kelsey Whitlock, Minority Staff Assistant. 

Mr. SCOTT. The Subcommittee will now come to order, and I am 

pleased to welcome you to the hearing before the Subcommittee on 

Crime, Terrorism, and Homeland Security on the Reauthorization 

and Improvement of DNA Initiatives of the Justice For All Act of 

2004. 

Today we will hear testimony about H.R. 5057, the ‘‘Debbie 

Smith Reauthorization Act of 2008,’’ which is sponsored by the 

gentlelady from New York, Mrs. Maloney. 

We will also hear testimony about issues surrounding the Innocence Protection Act—specifically, the hurdles that have impeded 

its implementation, the consequences of those hurdles and how to 

overcome them. 

The Debbie Smith Act authorizes the Attorney General to provide grants to States to assist them in entering DNA evidence into 

databases. 

As the Nation’s police departments and prosecutors have come to 

recognize the value to DNA evidence in solving crimes, labs have 

collected DNA samples from increasing numbers of crime scenes 

and convicted offenders faster than they can examine and enter 

them into State and local databases. 

2 

In fact, Congress has funded State and local law enforcement 

agencies to test nearly 104,000 DNA cases from 2004 to 2007 and 

funded over 2.5 million convicted offender and arrestee samples. 

Yet the backlog remains almost level. Consequently, a large 

backlog of samples exists around the Nation that could identify 

valid criminals at large. 

There are no better examples of how to demonstrate how important DNA technology can be for solving crimes than the stories that 

two witnesses will share with us today. 

Before service in Congress, the gentleman from Washington, 

David Reichert, was sheriff of King County, Washington sheriff’s 

office where, through help of DNA technology, he helped solve the 

largest serial murder case in U.S. history, the Green River killer 

investigation. 

And in 1989, Debbie Smith was kidnaped in her Virginia home 

and viciously attacked in nearby woods by a stranger. With remarkable courage and determination, she reported her attack. 

The crime lab was able to preserve DNA evidence of her 

attacker. Eventually he was convicted of a separate violent crime 

and was required to provide a DNA sample which matched the 

sample collected from his attack on Ms. Smith, identifying him as 

the attacker. 

The goal of the Debbie Smith DNA backlog grant program is to 

assist States in entering their DNA evidence timely so that they 

can solve more crimes and solve them as soon as possible. 

The act was incorporated into the Justice for All Act of 2004, and 

that expires at the end of 2009. H.R. 5057 has strong bipartisan 

support and would authorize funding for the Debbie Smith Act, extending it through fiscal 2014. 

The Innocence Protection Act authorizes the Attorney General to 

grant funding to States for post-conviction DNA testing to help ascertain whether individuals have been wrongly convicted. 

To date, there have been 215 post-conviction exonerations 

through DNA testing in the United States, spanning 32 States. Sixteen of the 215 exonerees were on death row, and the true suspects 

or perpetrators have been identified in 82 of the DNA exoneration 

cases. 

The most recent exoneree is Levon Brooks, who is here with us 

today. He spent 18 years in prison, wrongfully convicted of the 

murder of a child, until DNA evidence led to the discovery of the 

actual murderer. 

The success of post-conviction DNA is evident by the exonerations it has yielded and its potential to exonerate hundreds more 

of the wrongly convicted. 

Unfortunately, post-conviction DNA testing has been seriously 

under utilized due to unrealistic and unattainable standards for 

grant applications. Congress funded a total of $7 million for Innocence Protection Act grants from 2005 to 2007, but none of the 

funds were ever used for actual grants. 

According to the Department of Justice Office of Justice Programs, statutory language of the act set standards for authorizing 

the grants too high for any State to meet. 

3 

Concerns have also been raised that the standard may have discouraged applicants from applying as there have been actually only 

three grant applications—Virginia, Connecticut and Arizona. Consequently, $7 million that might have been used to free innocent people from prison have sat idle. This is unconscionable and 

we must correct it. 

For fiscal year 2008, Congress appropriated an additional $4.8 

million and inserted a temporary change in statutory language that 

OJP suggested so that applicant States may be able to meet the 

requirements for grants under the Innocence Protection Act. Thus, there are now $11.8 million available, and new language 

to facilitate granting post-conviction DNA testing funds. There are 

also five new applicants for these grants, and we are looking forward to hearing testimony about these applications and their 

chance for success under the new standard. 

I also look forward to working with my colleague to determine 

whether the temporary language established for 2008 should be 

made permanent or whether we should make some other correction 

in the law. 

DNA technology has given us the means to identify the wrongly 

imprisoned. Now we have the responsibility to use those means. 

The Debbie Smith Act and the Innocence Protection Act complement each other in that they use DNA technology to meet the 

shared goal of identifying those responsible for committing crimes. 

DNA evidence is, indeed, an invaluable tool for ensuring that the 

guilty are identified beyond any doubt. However, like any tool, it 

is only useful as to the extent that it is employed, and we must do 

everything we can to ensure the availability of funding set aside to 

determine the guilt or innocence and make sure it is used to its 

fullest extent. 

It is now my pleasure to recognize the Ranking Member of the 

Subcommittee, the gentleman from Texas, Judge Gohmert. 

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

you holding this hearing on this reauthorization of the Debbie 

Smith DNA Backlog Grant Program and improvements to the Kirk 

Bloodsworth Post-Conviction DNA Testing Program. 

I do want to welcome our distinguished witnesses and extend a 

special thank you to Congresswoman Maloney and Congressman 

Reichert. 

And the incredible work that Congressman Reichert did in the 

Green River killer case has also been made the subject of a fantastic miniseries that I watched last weekend. 

Anyway, maybe you would have done a better job, I am sure, in 

representing yourself, but it was quite a good miniseries. 

But to the subject of what we have before us, March 11, 2003, 

President Bush announced his DNA Initiative to provide funds, 

training, assistance to ensure that DNA technology reaches its full 

potential to solve crimes, protect the innocent and identify missing 

persons. 

The DNA Initiative awards grants to address several DNA backlog issues, including capacity enhancement, convicted offender 

DNA backlog issues, including capacity enhancement, convicted offender DNA backlog reduction, forensic casework DNA backlog reduction, and solving cold cases with DNA. 

4 

As a former prosecutor and judge, I know the value of the DNA 

evidence and how it serves in convicting violent criminals and providing some closure to victims, but also ensuring that those who 

are sent to prison are actually guilty of the crime. 

The Debbie Smith and Kirk Bloodsworth programs help ensure 

that these goals of the criminal justice system are met. 

I also saw the tremendous backlogs, the delay in justice from 

programs that were not fully equipped to address the DNA backlogs and the problems that created for State and local justice. 

But we have all heard the adage that it is better to let 10 guilty 

people go free than to send one innocent person to prison. 

Well, DNA evidence provides a level of certainty in criminal prosecutions that I hope would lessen or even eliminate the likelihood 

that innocent people are convicted for a crime they did not commit. 

By now, we are familiar with the story of Kirk Bloodsworth that 

the Chairman has mentioned. It is also appropriate to mention Mr. 

Levon Brooks that the Chairman also mentioned, and we are delighted that he is here today to share his story and the horrible ordeal that he witnessed personally. 

It is appropriate this program providing grants to States for postconviction DNA testing is named for Mr. Bloodsworth. Since 1989, 

215 wrongfully convicted individuals have been exonerated through 

the testing. 

The Kirk Bloodsworth DNA post-conviction DNA testing program 

was authorized by the Justice for All Act of 2004, but in order to 

receive a grant under this program, the State must demonstrate 

that all jurisdictions within the State comply in practice with the 

requirements of the Bloodsworth provisions. 

This is true even if only one jurisdiction within the State processes post-conviction DNA tests. This requirement apparently has 

been so restrictive that only three States submitted applications for 

the Bloodsworth grants in 2007, and none were approved. 

To address the problem, Congress included language in the fiscal 

year 2008 Appropriation Act to lessen the grant requirements on 

applicant States. 

Surprisingly, despite these less burdensome grant requirements, 

only five States submitted applications for post-conviction grants in 

2008, and these five States requested only about $8 million of the 

roughly $11 million available. 

And I know that there are more States that could use this help. 

I am interested to learn why so few States are seeking Federal 

grant assistance for post-conviction DNA testing, whether they are 

aware of the grant program, whether they are aware of the improvement to the grant language, whether they believe that for 

some reason they are still ineligible, or is it that they don’t need 

Federal grant money for post-conviction DNA testing and, if so, 

why or why not? 

I hope the Department of Justice can shed some light on these 

issues, and I look forward to hearing from our esteemed witnesses 

today and yield back the balance of my time. 

Mr. SCOTT. Thank you. 

Does the gentleman from Michigan have a statement? The gentleman from Michigan has 5 minutes. 

Mr. CONYERS. Thank you, Chairman Scott and Judge Gohmert. 

5 

I will put my statement in the record and merely say this. Because of the increasingly bipartisan nature of the Judiciary Committee, we are very pleased to work more closely with the Department of Justice. 

And I want David Hagy from the Department of Justice to know 

that we are all going to be continuing our good relationships, but 

you guys better get cracking on this subject matter here today. 

And I guess I don’t sound like I am kidding, and I am not, so 

my statement, you know, reiterates all of this. 

I always have to notice that I only wish Carolyn Maloney—I 

think she wanted to go to law school as a kid, because she keeps 

coming before this Committee all the time. I think maybe it is DNA 

or genetic, I don’t know. 

And we are certainly glad to see Congressman Reichert here. 

I am also happy to see Debbie Smith joining us here. This is a 

historic moment for our Committee. Levon Brooks is here. And so 

I am happy to join in this evaluation and continue our improving 

relationships with the leadership at the Department of Justice. 

I thank you so much. 

Mr. SENSENBRENNER. Mr. Chairman? 

Mr. SCOTT. Thank you. I thank the—— 

Mr. CONYERS. Yes? 

Mr. SENSENBRENNER. Mr. Chairman, if I can say a couple of 

words at the beginning of this hearing—— 

Mr. SCOTT. Does the gentleman from Michigan yield to the gentleman from Wisconsin? 

Mr. CONYERS. Yes, of course. 

Mr. SENSENBRENNER. Mr. Chairman, I thank the Chairman of 

the Committee for yielding. 

I was the author of the Justice for All Act in 2004, and that act 

was an elaborately crafted conglomeration of bills that was designed to get the support of both houses, but particularly the other 

body, in order to get a number of very important initiatives passed. 

And one of the linchpins of getting this passed was the DNA provision in the bill, and the Justice Department at the time didn’t 

like it. 

And basically, what the current Chairman and I as the Chairman at the time had to do was to go over to the Senate and basically give them some provisions on victims’ protections which the 

Justice Department did like. 

And I guess it is disappointing to me that after we had reached 

this compromise that passed both houses overwhelmingly the Justice Department has not been vigorously implementing the DNA 

part, and it has been almost 4 years since the President signed the 

legislation into law. 

It was a good deal then. It is a good deal now. And foot-dragging 

by anybody, but particularly the Department of Justice, means that 

a good deal ends up being an incomplete deal. I hope it is complete. 

And I thank the Chairman for yielding. 

Mr. SCOTT. Thank you. 

The time of the Chairman has expired. 

The gentleman from Texas, Ranking Member of the full Committee? 

Mr. SMITH. Thank you, Mr. Chairman. 

6 

I think I may have broken my microphone here. I am not sure. 

Mr. Chairman, thank you for holding this hearing on the reauthorization of the Debbie Smith DNA Backlog Grant Program and 

improvements to the Kirk Bloodsworth post-conviction DNA testing 

program. 

And I want to thank, of course, Congresswoman Maloney and 

Congressman Reichert for being here as well. 

Congressman Reichert knows firsthand the value of DNA evidence in solving violent crime. Before he was elected to Congress, 

Dave Reichert, sheriff of King County, Washington State spent 20 

long years hunting down the notorious Green River killer. By the 

way, I did not know about the miniseries that Louie Gohmert mentioned. 

Gary L. Ridgway pleaded guilty in 2003 to killing 48 women, and 

it was advances in forensics and DNA evidence that ultimately 

helped Sheriff Reichert solve this case. 

Carolyn Maloney has been a champion of reducing the DNA 

backlog for many years, and I am pleased to be an original co-sponsor of her bill, H.R. 5057, to reauthorize the Debbie Smith DNA 

Backlog Program. 

And like the Chairman a minute ago, I would like to thank 

Debbie Smith for appearing here as well. Her willingness to share 

her courageous story gives hope to other victims of rape and sexual 

assault that they will see their attackers apprehended and brought 

to justice. 

The Debbie Smith program, originally authorized in 2000, was 

expanded by the Justice for All Act of 2004 that former Chairman 

Sensenbrenner mentioned a minute ago. The program awards 

grants to State and local governments to reduce the DNA backlog 

of samples collected from crime scenes and the backlog for entry 

into the National DNA Database. 

The program also assists State and local governments with increasing the capacity of their forensic labs and collecting DNA samples from arrestees and convicted offenders. 

These grants and other parts of the President’s DNA Initiative 

are working to reduce the DNA backlog, solve violent crimes and 

put offenders in prison. 

Through DNA backlog reduction grants, State and local governments received funding to test approximately 104,000 DNA cases 

between 2004 and 2007. These grants have also funded the collection of 2.5 million DNA samples from convicted offenders and 

arrestees for inclusion in the National DNA Database. 

The Department of Justice estimates that over 5,000 hits or 

matches are the result of this DNA backlog reduction. But it is 

clear that there is more work to do. Technology is always advancing, and so, too, is the use of DNA to solve crime. 

As DNA use expands, so does DNA collection and the need for 

larger laboratories and increased storage capacity. We must continue our efforts to reduce the DNA backlog. It is necessary in 

order to bring offenders to justice and provide some solace to the 

victims themselves. 

I look forward to hearing from our witnesses today. 

And, Mr. Chairman, I will yield back the balance of my time. 

Mr. SCOTT. Thank you very much. 

7 

Other statements can be submitted for the record. 

We have two panels. Our first panel, the first witness will be the 

gentlelady from New York, Congresswoman Carolyn Maloney, who 

is a sponsor of H.R. 5057. I think I may have called it 56 at one 

time—5057. 

She has been a Member of Congress since 1993 and was a driving force behind the Debbie Smith Act on numerous occasions in 

Congress before it was finally incorporated in the Justice for All 

Act in 2004. 

The reason she is before us, Mr. Chairman, so often is she is a 

strong advocate for the protection of women in the criminal justice 

system, not only on this bill but many others. She has a bachelor’s 

degree in education from Greensboro College. 

And so thank you for being with us today. 

Our second witness will be the gentleman from Washington, Congressman David Reichert, who currently is in his second term in 

Congress. In addition to his notable work on the Green River task 

force, he has over 35 years of public service to the people of Washington. He has a bachelor’s degree from Concordia Lutheran College. 

Both of the witnesses are familiar with the lighting system, so 

we would ask you to summarize your statements. The written 

statements will be entered into the record in their entirety. 

So, Mrs. Maloney? 

TESTIMONY OF THE HONORABLE CAROLYN MALONEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW 

YORK 

Mrs. MALONEY. Thank you so much, Chairman Scott, and thank 

you for your leadership on the Debbie Smith Act and so many other 

issues, and Ranking Member Gohmert and our distinguished Chair 

of the Committee, John Conyers, for his leadership on this and so 

many other areas, and Mr. Lamar Smith, who is the lead sponsor— 

one of the lead sponsors, along with many people on this panel of 

the reauthorization of Debbie Smith. 

I must mention Mr. Sensenbrenner’s and Mark Green’s hard 

work on it, as well as Anthony Weiner and Mr. Nadler and many 

others. 

I have been working on this since 2001 when I initiated a hearing before the Government Reform Committee, a Committee Mr. 

Conyers used to Chair, on the use of DNA to convict and to exonerate. 

We reached out to a program called RAINN to find a rape survivor to testify. No one would testify, understandably. It is a traumatic experience. Yet Debbie Smith came forward, and she told her 

story. 

And believe me, after that hearing, there wasn’t a dry eye on the 

panel—and Congress Members are very strong people—because her 

story was so terrifying and one that we could all identify with. 

Living in a suburban, quiet neighborhood, an intruder broke in 

while her husband was asleep upstairs—a police officer—dragged 

her into the woods, raped her and said, ‘‘I will come back and kill 

you if you tell anyone.’’ 

8 

So for 6 years, she lived in utter fear that the intruder would 

come back, until finally through DNA processing a match was 

made, a cold hit, and her rapist was put in jail. 

We put in a bill afterwards with the help of practically everyone 

on this panel that provided funding for the backlog. We found out 

there were roughly 500,000 rape kits sitting in police departments 

across the country that had not been processed, yet each rape kit 

represented a life such as Debbie’s that was living in fear. 

And the FBI told us that most rapists are very sick people. They 

will attack seven, eight, nine times. They continue to attack. So if 

you can make that conviction, you are saving the lives of seven, 

eight, numerous other women from the horror of what Debbie had 

to live through. 

The FBI has told me that the second most horrendous crime in 

terms of destroying a life and recovering is rape, preceded only by 

murder. So this is a very, very serious issue. 

It took us 4 years to pass this bill. And it was done with the 

great help and support of Debbie and her husband, Rob, who continue their work in helping rape survivors. They have started a 

foundation to really help with this effort. 

Our bill that went forward with the Justice for All Act not only 

provided money for the backlog but provided money for S.A. nurses. 

There was documentation that with professional nurses, the police 

said they could make the conviction with the DNA. That was very 

important. 

It included John Doe convictions so that rapists could be caught 

at a time in the future and still be convicted, and helped support 

the FBI’s DNA research lab which shares DNA information across 

the States, since rapists don’t know boundaries. They go from State 

to State. 

And it has served as an invaluable tool. Many organizations of 

rape victims have told me that through this program they have finally found peace because their rapists have been caught. And it 

has been a wonderful tool for law enforcement to use. 

Not only does it help convict, but through the Justice for All Act 

and the work of Mr. Delahunt and many others, and Mr. Conyers, 

it has been used to exonerate the innocent, those on death row. 

Now they must go through a DNA test, and many people have been 

exonerated when they find out that this is not the person. 

Debbie’s story was so moving that it was made into a movie, literally, by Lifetime Television called ‘‘A Life Interrupted,’’ and they 

are making another movie based on the continuing effort with the 

Justice Department, with Members of Congress, with the police 

and all of the D.A.s and everyone who is working to really cure the 

backlog. 

Because this ground-breaking program’s authorization expires at 

the end of 2009, we have reintroduced the reauthorization which 

will extend the program to 2014, and I am very pleased that Congressmen Conyers and Smith and others have joined us, and certainly, Mr. Reichert and others, with the reauthorization. 

Estimates place the number of unprocessed rape kits nationwide 

in the tens—and possibly hundreds of thousands. Each kit represents an innocent life and a rapist who may commit multiple 

rapes before he is caught. 

9 

DNA is remarkable evidence. It can’t be intimidated. It never forgets. It is really our best tool for a conviction. And DNA never 

changes its story. 

Debbie’s bravery and dedication in working with me and others, 

which was no small feat, has already made a tremendous impact 

on our justice system, and I do want to compliment very much the 

efforts, continuing efforts, of Lifetime Television and RAINN as 

well as other dedicated groups to ending the violence against 

women. 

April is Sexual Assault Awareness and Prevention Month. Tragically, only 6 percent of rapists will spend any time in jail, and 

Congress must continue to support programs like the Debbie Smith 

DNA Backlog Grant Program that helps to put rapists in prison 

and reduce violence against women. 

I want to thank this Subcommittee and particularly Bobby Scott 

for his leadership on this action for many, many years, as well as 

many other issues we have been working on together along with 

Chairman Conyers. 

And I look forward to working with you and supporting your efforts and the reauthorization of the Debbie Smith Act. Thank you 

for this great honor of appearing before this Committee. 

I believe I am before this Committee so much, Mr. Conyers, because you really touch on so many important issues in our country. 

It is an incredibly important Committee. 

Thank you for offering me the honor to appear before you today. 

Thank you. 

[The prepared statement of Mrs. Maloney follows:] 

PREPARED STATEMENT OF THE HONORABLE CAROLYN B. MALONEY, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

Thank you Chairman Scott and Ranking Member Gohmert for holding today’s 

hearing about DNA technology, which can help convict the guilty and free the innocent. 

I have been working on this issue since 2001 when I, along with former Representative Steve Horn, held a hearing in the Government Reform Committee where 

we heard from the courageous rape survivor sitting at this table, Debbie Smith. 

Debbie recounted her horrifying story . . . how an intruder broke into her home 

and raped her in the nearby woods. Six years later her assailant was charged with 

her rape because DNA processing techniques had produced a ‘‘cold hit.’’ 

Inspired by Debbie’s story, I resolved to do something to combat the epidemic of 

violence against women in the United States, where a sexual assault occurs every 

two minutes. 

I knew that DNA processing techniques could serve as conclusive proof in countless other rape cases. But I was outraged that a backlog of hundreds of thousands 

of rape kits, with DNA evidence already collected, were gathering dust in police stations and crime labs all over the country . . . all because of inadequate government 

funding. 

It was for Debbie, and the thousands of rape survivors like her, that I authored 

‘‘The Debbie Smith Act’’ to provide federal funding to process the unconscionable 

backlog of DNA evidence. 

I first introduced this legislation in 2001. In 2004, it was signed into law as part 

of the ‘‘Justice For All Act,’’ comprehensive DNA legislation that has helped bring 

justice to rape survivors and their families across the country. 

The ‘‘Justice For All Act’’ accomplished several critical objectives including authorizing the necessary funding, $151,000,000 in each fiscal year from FY2005 through 

FY2009, to start processing the backlog of DNA evidence through the creation of the 

Debbie Smith DNA Backlog Grant Program. Since 2004, millions of dollars in funding have been appropriated under the Debbie Smith DNA Backlog Grant Program. 

Because this groundbreaking program’s authorization expires at the end of 

FY2009, I have introduced H.R. 5057, ‘‘The Debbie Smith Reauthorization Act of 

10 

2008,’’ which extends the program through FY2014. I am pleased to have been 

joined in introducing the legislation by the Chairman and Ranking Member of the 

Judiciary Committee, Chairman Conyers and Ranking Member Smith. Resolutions 

have already been introduced or passed across the country in support of ‘‘The 

Debbie Smith Reauthorizaton Act’’ including in Vermont, Alaska, and the City of 

Easton in Pennsylvania. 

Estimates place the number of unprocessed rape kits nationwide in the tens and 

possibly hundreds of thousands. Each kit represents an innocent life and a rapist 

who may commit multiple rapes before he is caught. 

DNA is remarkable evidence. It doesn’t forget, it can’t be confused, it can’t be intimidated and it doesn’t lie. While an eyewitness can easily get mixed up about 

height, weight, hair color—DNA never changes its story. 

Debbie’s bravery and dedication to working with me to pass ‘‘The Debbie Smith 

Act,’’ which was no small feat, has already made a tremendous impact on our justice 

system. We were joined in our efforts by Lifetime Television and RAINN, as well 

as other groups dedicated to ending violence against women. 

April is Sexual Assault Awareness and Prevention Month. Tragically, only 6% of 

rapists will spend any time in jail. Congress must continue to support programs, 

like the Debbie Smith DNA Backlog Grant Program, that help to put rapists in prison and reduce violence against women. 

I want to thank the Subcommittee for inviting me to testify today, and I look forward to working with you to move ‘‘The Debbie Smith Reauthorization Act’’ forward. 

Thank you. 

Mr. SCOTT. Thank you. 

Mr. Reichert? 

TESTIMONY OF THE HONORABLE DAVID G. REICHERT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WASHINGTON 

Mr. REICHERT. Thank you, Mr. Chairman. 

I want to thank Chairman Conyers and Ranking Member 

Gohmert, and Ranking Member Smith also, for the opportunity to 

testify today and first would like to say that I very much admire 

and respect Debbie Smith as a survivor and some of the other survivors who might be here today. 

To have the courage to come and testify before Congress and 

push for important legislation that will be helpful to others in their 

lives takes a lot of courage. I have investigated these cases over my 

33-year career as a police officer, but the one that I want to talk 

to you about today is one that I think really paints a picture of the 

great need for DNA funding. 

I was a young detective in 1982 at 31 years old. Sometimes it is 

a hard story to tell—lots of bodies, and lots of victims, and lots of 

families torn apart, lots of bad memories in this case. 

But if you think about—in 1982, at 31 years old—I had dark 

brown hair, by the way, back then. [Laughter.] 

Standing on the riverbank—there was no computer. There was 

no—we were investigating this case and organized it by using 3x5 

note cards and a Rolodex file. 

And when I share this story with junior high and high school 

students, immediately I get a hand that says, ‘‘Sheriff, what is a 

Rolodex file?’’ They haven’t got a clue. 

But no DNA. There was blood typing. That was it. And if we got 

a blood type, it would narrow the suspect pool to millions. There 

was no automated fingerprint identification system when I started 

this case, no AFIS system. So it just tells you how far we have 

come from 1982 to today. 

11 

I agree with you, Chairman Conyers, this is an historical day, I 

believe, for your Committee. This reauthorization needs to take 

place. 

We were able to collect bodily fluids from the riverbanks from 

three of the victims in this case. They were the only three bodies 

that had any flesh attached to it during this entire investigation, 

and that is the only reason we were able to collect the bodily fluids 

that would somehow come together with a gauze that contained saliva that the suspect was asked to chew on in 1987. 

We collected those samples in 1982 and froze them. We had over 

10,000 items of evidence collected during the investigation of this 

case over the 19-year period that we worked on this case, and I am 

proud to say that we found every one of them when it came time 

for trial. And that, my friends, is unusual, too. 

But the bodily fluids frozen in 1982—spermatozoa—in 1987, 

Gary Ridgway was identified as a possible suspect out of 40,000 tip 

sheets. We interviewed him. He passed a polygraph test and he 

was released. 

And we went on to investigate others. All the while, Gary 

Ridgway is in the mix. He is out there. He is still a part of what 

we are looking at. You know, the polygraph test is a tool that we 

use. He didn’t fit the profile, by the way, the FBI profile, which is 

another tool that came along during this investigation. 

I have 40 seconds left? I want to tell you that the science came 

together. The DNA science came together. On September 10th, the 

day before September 11th, 2001, my detectives came to my office 

and said, ‘‘Sheriff, we know who killed at least three of the 

women.’’ DNA did that. 

Now, it took 2 years for him to finally come to prison, but I spent 

3 days—if I could just have a little bit more time—with each family 

member, 50 families, and explained to them what we want to do 

is make a deal, so no death penalty here, but we wanted answers 

to questions. 

We were able to get an additional three cases matched through 

another science of paint evidence. It was a total of seven. He wanted to plead guilty. He wanted to save his life. Most of the families 

were in agreement to that. 

But DNA provided the answers to the questions that these families have had for 19 years. Four of the families found out where 

the bodies of their daughters were for years that we couldn’t find. 

So to all the Members of the Judiciary Committee that have this 

decision to make, I wish I could have more clearly stated without 

such emotion the need for DNA testing and the relief that it brings 

to people like Debbie Smith. 

There will never be closure. The memories are always there. The 

families of the victims in this case will never have closure. But 

they have got answers to questions. They were able to put their 

victims, their daughters, to rest, to go visit their bodies in a cemetery. 

And my wish and hope is, of course, that no other young lady has 

to suffer at the hands of such a murderous monster. But if it happens, DNA is so essential. 

We were actually recipients of a $1 million Federal grant to help 

with DNA testing. I went before my county council in Seattle and 

12 

asked for an extra $500,000. They didn’t have it. I spent it anyway. 

We need your help. 

I yield. 

[The prepared statement of Mr. Reichert follows:] 

PREPARED STATEMENT OF THE HONORABLE DAVID G. REICHERT, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF WASHINGTON

Thank you Chairman Conyers, Ranking Member Smith, Chairman Scott and 

Ranking Member Gohmert for the opportunity to be here this morning. I am pleased 

to share with you my experience with forensic DNA technology and the critical role 

that technology played in bringing a serial killer to justice and providing answers 

to the questions the victims’ families had been asking for many years. 

Before coming to Congress, I spent over 30 years in law enforcement in the King 

County Sheriff’s Office, in Seattle, Washington. I have personally witnessed how forensic DNA has closed unsolved rapes and homicides in Washington State. For 20 

years I was involved in the case of the Green River Killer, in which at least 48 

women were found murdered throughout King County, Washington; the first five 

were found along the Green River and so it was called the Green River Task Force. 

DNA evidence played a central role in this investigation and ultimately led to the 

conviction of Gary Ridgway. 

Ridgway became a suspect early in the investigation but after passing a polygraph 

test and with no physical evidence to link him to the crimes, he walked free. Police 

collected bodily fluids from the first victims found in 1982, and first took hair and 

saliva samples from Ridgway in 1987. At the time, the technology did not exist to 

compare these samples with the evidence collected at the crime scenes. These samples were later subjected to DNA analysis. When the tests came back on September 

10, 2001, the DNA from 3 of the 48 victims was attributed to one suspect, Gary 

Ridgway. It is incredible that nearly two decades later, thanks to advancements in 

DNA technology, a small saliva sample compared with the first crime scene evidence 

from 1982 would prove the key to unlocking one of the most notorious serial murder 

cases in our history. Gary Ridgway pled guilty to 48 separate counts of murder and 

later admitted to having sex with and killing over 70 women. He is now serving 

life in prison. 

I cannot speak enough about the importance of DNA analysis to law enforcement 

and to the victims and their families. DNA analysis is a powerful tool that can potentially help solve hundreds of cases where no known suspect currently exists. Unfortunately, there is a severe backlog for DNA testing. It is a real tragedy that we 

have the technology needed to bring offenders to justice and peace to their victims, 

yet we’re unable to fully utilize it. 

For victims of rape and sexual assault, DNA promises the opportunity to finally 

reclaim their lives—their sense of security, confidence, and independence that only 

comes after knowing their offender is caught and behind bars. Today, an alarming 

1 in 6 women and 1 in 33 men have experienced an attempted or completed rape, 

and 1 out of 4 college-aged women have been sexually assaulted. In 2006, there 

were over 270,000 victims of rape, attempted rape, or sexual assault in the United 

States. Sex crimes are one of the most personal, offensive, and destructive crimes. 

Often victims are never able to fully recover from the psychological and emotional 

distress associated with the offense. DNA has the unequaled ability to identify rapists, bring them to justice, and grant peace of mind to victims. We owe it to our 

daughters, sisters, and neighbors to do everything in our power to eliminate the 

DNA backlog so rapists are taken off the streets and prevented from claiming more 

innocent victims. 

The bottom line is the FBI and state and local law enforcement must eliminate 

the backlog and get the DNA samples into the system. It is the only way the DNA 

does all that it’s capable of. 

I commend the Judiciary Committee for taking up this charge to eliminate the 

DNA backlog through the reauthorization of the Debbie Smith DNA Backlog Grant 

Program. This program goes a long way towards helping states and local government eliminate the current backlog of unprocessed DNA samples so that dangerous 

perpetrators like Gary Ridgway can be caught and communities across our nation 

will be safer. 

Mr. SCOTT. Thank you very much. And we are certainly going to 

do what we can. 

13 

If there are no questions for our witnesses—thank you very 

much. 

If the next panel will come forward. 

Our next witness will be Debbie Smith, for whom H.R. 5057 is 

named. As a survivor, as we have heard, of a brutal attack, Ms. 

Smith has become a crusader, intent on helping other victims and 

preventing other persons from being victimized. 

She speaks all over the United States and Canada in an effort 

to help others, and she is the founder and CEO of the H-E-A-R-T, 

Heart, Incorporated, a nonprofit foundation established to aid victims of sexual assault. 

The next witness will be David Hagy, director of the National Institute of Justice. He oversees the research, development, evaluation of activities at the Department of Justice, including the authorization of grants under the Justice for All Act of 2004. 

He holds a bachelor of science and economics from Texas A&M 

and a master of arts and Ph.D. in political science from Tulane. 

The next witness will be Peter Malone, director of the Virginia 

Department of Forensic Science. He is a member of the Forensic 

Education Program Accreditation Commission for the American 

Academy of Forensic Sciences and the National Academy of 

Sciences Committee on identifying the needs of the forensic science 

community. 

He also is Chair of the Consortium of Forensic Science Organizations. He has a bachelor’s degree and master’s degree in chemistry, 

each from the University of Pittsburgh. 

Our next witness will be Mr. Levon Brooks, who is the 215th person to be exonerated through the use of DNA technology. In 1992, 

he was tried and convicted of a heinous child murder that he did 

not commit. 

DNA evidence was used to solve other murders that had almost 

identical circumstances, which led to Mr. Brooks’ exoneration. On 

March 13, 2008, Mr. Brooks was finally cleared of all charges, but 

only after serving the last 18 years in prison. 

Our final witness will be Mr. Peter Neufeld, co-founder and codirector of The Innocence Project at the Benjamin Cardozo School 

of Law. 

His work has shaped the course of case law across the country 

and helped to lead to an influential study by the National Academy 

of Sciences on forensic DNA testing, as well as important State and 

Federal legislation setting standards for the use of DNA testing. 

He has a bachelor’s degree from the University of Wisconsin and 

a law degree from New York University Law School. 

Now, all of our witnesses statements will be entered in the 

record in their entirety. I would ask each witness to summarize 

testimony in 5 minutes or less. 

And to help you stay within that time, there is a lighting device 

on the table which will start with green, go to yellow when there 

is 1 minute left, and it turns red to signal that the 5 minutes have 

expired. 

Ms. Smith, it is good to see you. 

14 

TESTIMONY OF DEBBIE SMITH, CHARLES CITY, VA; MR. DAVID 

HAGY, DIRECTOR, NATIONAL INSTITUTE OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC 

Ms. SMITH. I want to thank you for allowing me to be here this 

morning and for the commitment of Congress that Congress has 

shown to the victims by funding the Debbie Smith Act. 

I am deeply grateful to the House because you have consistently 

voted to fully fund this important piece of legislation, and your 

message was finally heard as last year, for the first time, Congress 

essentially fully funded the Debbie Smith Act. 

It is truly a privilege to be given the opportunity to be a small 

part of this legislative process. It is also one of the most terrifying 

things I have ever done. 

I truly believed that March 3, 1989 would be the last day that 

I would feel the loving touch of my husband’s embrace or hear the 

precious voices of my children tell me that they loved me. 

It was on a Friday that a stranger entered my home threatening 

to kill me if I screamed. He then abducted, blindfolded and led me 

to the woods behind my home where he repeatedly raped me and 

robbed me. 

After being raped, I struggled with trying to live with the memories of that day. For 61⁄2 years the smell of his breath, the touch 

of his cool, damp coat sleeve around my neck, the sight of his black 

rubber boots and the sound of his voice reminding me, ‘‘Remember, 

I know where you live, and I will come back to kill you if you tell 

anyone,’’ were all stored in my mind, unwilling to be discarded. 

I needed peace, security and to feel normal again. I had no hope 

that I would ever attain this vital relief. I had found the fate worse 

than death, and that was living with the memories of this day, living with the fear that he would fulfill his promise to return to kill 

me or, even worse, that he would he take out his revenge on my 

husband or my children. 

I merely existed for those 61⁄2 years as fear held my heart and 

soul within its grip, choking out any joy in life. I became suicidal, 

seeking peace and rest from the pictures that played without warning in my mind. 

Finally, a cold hit, DNA cold hit, offered peace to my fearful 

heart and gave validation to my accusations, administered justice, 

and prevented this man from claiming another victim. With his 

conviction, the jury sentenced him to two life sentences plus 25 

years with no parole. 

But my problem here this morning is how do I convey to you 

something that is so deeply rooted in my heart that the only way 

I have found to express it is through action? 

Perhaps if you can picture in your mind the reality of what I 

have seen in labs and police evidence lockers all across our great 

country, you will have a sense of the urgency that I feel for row 

after row of shelves, from floor to ceiling, holding boxes of every 

size, with numbers written in black ink, containing vital evidence, 

that are dusty and untouched. 

These are not just boxes but they represent real people, people 

that are trying to live past the memory of the day that evidence 

was taken from their body. 

15 

These victims have family and friends who are watching them, 

watching the self-destruction that often comes from sexual assault, 

these people, who are waiting as I had waited. But for how many 

of them is it already too late? 

When a rape victim submits to this very intrusive evidence collection process, she at least knows that she has done her part. She 

has done everything that has been asked of her to keep this man 

from hurting anyone else. 

Unfortunately, there is a very good chance that this vital evidence will sit on a shelf with another estimated 350,000 rape kits, 

each holding within it vital evidence that is crucial to the safety 

of women everywhere. 

Each day that passes without the identity of these rapists being 

known allows them to continue to claim victims, and I promise you 

they will. We simply cannot allow these women to feel violated 

again by our negligence to do all that we can to provide them justice and safety. 

It is for the 65,000 victims in Alabama, the 40,000 in California 

and all those victims across our country who are still waiting for 

answers that my husband and I have sacrificed our income, our retirement and our time. 

It is for them that we continue to return to your offices pleading 

for proper appropriation of funds and now for the reauthorization 

of this bill. 

I am not a paid lobbyist. Living on a retired policeman’s pay is 

not easy. In fact, if it were not for our foundations’ fundraising efforts and the support from local and national businesses, we could 

not afford to be here today, as neither of us takes any type of salary or honorarium, but they help to provide the necessary expenses 

as we travel all over this country, training nurses, prosecutors, law 

enforcement and advocates on how to deal with victims and the 

value of DNA. 

This is not a job for me. This is my life. This is my very heart. 

And I will do whatever it takes to give these victims a chance at 

justice. 

Since passing the Debbie Smith Act, Massachusetts’ crime lab 

has reduced their sexual assault backlog from 4,000 cases to 2,081 

cases, solving cold cases and providing numerous offender profiles 

to be added to CODIS. 

Atlanta, GA has reduced their DNA backlog from 33,000 to 5,000 

cases in just less than 2 years. 

After 19 years, a Texas victim was relieved when, in 2006, 

CODIS produced the identity of her attacker. Prosecution was not 

possible because of the statute of limitations, but her attacker’s parole was denied because of this new DNA evidence. 

We have made tremendous strides since passing the Debbie 

Smith Act, but our success has also been our own worst enemy. 

As State legislators understand the power of DNA, they have 

broadened the types of offenses they have included in the database, 

and more States are beginning to include all arrestees. 

Detectives recognize its enormous ability in solving no-suspect 

cases, and police officers are more aware of DNA’s capabilities. Victims are grasping the connection between DNA and justice, giving 

them the courage to submit to the humiliating rape kit. 

16 

All of these wonderful achievements have caused a swell in the 

backlogs, though, across our country. I am fortunate to live in a 

State where the forensic scientists realized the potential of this valuable tool and found resources to initiate a program. 

Unfortunately, these resources are not available in most States. 

The swell having subsided, with another 5 years of Federal funding, crime labs can begin to eliminate their backlog and the current 

unacceptable turnaround can be shortened. 

As the success of this powerful tool continues, the public becomes 

more confident in the system, and State and local budget writers 

will have the data needed to begin paying for their own DNA programs without Federal assistance. 

We have to continue to keep DNA a priority. Not to do so would 

mean that we are going to lose valuable momentum. This science 

is distinctive in that it is tied to a national database, and it requires involvement from Congress and State legislature to function. 

When the original bill was passed, it provided for training money 

for all first responders, including sexual assault nurse examiners. 

These forensic nurses are vital in the collection and preservation 

of evidence, but this part of the bill is yet to be funded. 

I would ask that you use the power afforded you to guide our 

wonderful country to using DNA to its fullest potential. 

In closing, DNA is structurally a chain, yet this amazing piece 

of science breaks the chains of emotional imprisonment and becomes a chain of confinement for those who would violate innocent 

citizens. 

DNA gives life. It administers justice, offers peace and validation, frees the innocent. And I believe it is one of the greatest crime 

prevention tools we have available today. 

All victims of crime deserve the experience of this gift of renewed 

life that I received, and I know that DNA can offer that gift. To 

withhold that gift would be the act of denying our citizens that 

promised right of liberty and justice granted by our Constitution. 

So I am honored and I am proud to be here with you today representing that hope of promised justice. Thank you. 

[The prepared statement of Ms. Smith follows:] 

PREPARED STATEMENT OF DEBBIE SMITH

Let me begin by thanking each of you for allowing me to be here this morning 

and for the commitment Congress has shown to victims by funding The Debbie 

Smith Act. I am deeply grateful to the House for you have consistently voted to fully 

fund this important piece of legislation. Your message was finally heard as last year 

for the first time Congress essentially fully funded The Debbie Smith Act. It is truly 

a privilege to be given an opportunity to be a small part of the legislative process 

. . . it is also one of the most terrifying things I have ever done. 

My personal experience as a rape victim provides me with the understanding of 

the devastation of this crime. With understanding comes knowledge and with 

knowledge comes responsibility. This vivid understanding has changed my life forever. 

I truly believed that March 3, 1989 would be the last day that I would feel the 

loving touch of my husband’s embrace or hear the precious voices of my children 

say, ‘‘Mommy, I love you.’’ It was on that Friday afternoon that a stranger entered 

my home threatening to kill me if I screamed. He then abducted, blindfolded and 

led me to the woods behind my home where he robbed and repeatedly raped me. 

After being raped I struggled with trying to live with the memories of that day. 

For 61/2 years the smell of his breath, the touch of his cool, damp coat sleeve 

around my neck, the sight of his black rubber boots and the sound of his voice in 

my ears reminding me, ‘‘Remember I know where you live and I will come back to 

17 

kill you if you tell anyone’’ were all stored in my mind unwilling to be discarded. 

I needed peace, security and to feel normal again. I had no hope that I would ever 

attain this vital relief. I had found the fate worse than death and it was living with 

the painful memory, living with the fear that he would fulfill his promise to return 

to kill me or even worse that he would he take out his revenge on my children or 

my husband. I merely existed for those 61/2 years as fear held my heart and soul 

within its grip, choking out any joy of life. I became suicidal, seeking peace and rest 

from the pictures that played without warning in my mind. Finally a DNA cold hit 

offered peace to my fearful heart, gave validation to my accusations, administered 

justice, and prevented this man from claiming another victim. With his conviction 

the jury sentenced him to two life sentences plus 25 years with no parole. 

How do I convey something so deeply rooted in my heart that the only way I have 

found to express it is through action? Perhaps if you can picture in your mind the 

reality of what I have seen in labs and police evidence lockers all across our great 

country you will have a sense of the urgency I feel. Row after row of shelves from 

floor to ceiling holding boxes of every size with numbers written in black ink containing vital evidence, dusty and untouched. These are not just boxes but represent 

real people . . . people trying to live past the memory of the day that evidence had 

been taken from their body. These victims have family and friends who may be 

watching the self destruction that often accompanies sexual assault. These are people who are waiting as I had waited but for how many was it already too late? 

When a rape victim submits to the very intrusive evidence collection process she 

at least knows that she has done her part . . . she has done all that has been asked 

of her . . . to keep this man from hurting anyone else. Unfortunately, there is a 

very good chance that this vital evidence will sit on a shelf with another estimated 

350,000 rape kits each holding within it vital evidence that is crucial to the safety 

of women everywhere. Each day that passes without the identity of these rapists 

being known, allows them to continue to claim victims . . . and they will. We simply 

cannot allow these women to feel violated again by our negligence to do all we can 

to provide them justice and safety. 

It is for these victims that my husband and I have sacrificed our income, retirement and time. It is for them that we continue to return to your offices pleading 

for proper appropriation of funds and now for re-authorization of this bill. I am not 

a paid lobbyist. Living on a retired policeman’s pay is not easy, in fact if it were 

not for our foundations fundraising efforts and the support from local and national 

businesses we could not afford to be here today as neither of us takes any type of 

salary or honorarium for our labor. We travel all over our country training nurses, 

prosecutors, law enforcement and advocates on how to deal with victims and the 

value of this DNA. This is not a job for me . . . this is my life . . . my very heart. 

But I will do whatever it takes to give these victims a chance at justice. 

We have made tremendous strides since the passing of the Debbie Smith Act but 

our success has also been our own worst enemy. As state legislators understand the 

power of DNA they have broadened the types of offenses they have included in the 

data base and more states are beginning to include all arrestees. Detectives recognize its enormous ability in solving no-suspect cases and police officers are more 

aware of DNA’s capabilities. Victims are grasping the connection between DNA and 

justice giving them the courage to submit to the humiliating rape kit. All of these 

wonderful achievements have caused a swell in the backlogs across our country. I 

was fortunate to have live in a state where the forensic scientists realized the potential of this valuable tool and found resources to initiate a program. Unfortunately 

these resources were not as readily available in most states. 

The swell having subsided, with another five years of federal funding crime labs 

can begin to eliminate their backlogs and the current unacceptable turn around 

time will be shortened. As the success of this powerful tool continues the public becomes more confident in the system and state and local budget writers will have 

the data needed to begin paying for their own DNA programs without federal assistance. 

We must continue to keep DNA a priority, not to do so would mean losing valuable momentum. This science is distinctive in that it is tied to a national database, 

requiring involvement from Congress and state legislature to function. I would ask 

that you use the power afforded you to guide our wonderful country to using DNA 

to its fullest potential. 

DNA is structurally a chain, yet this amazing piece of science, breaks the chains 

of emotional imprisonment, and becomes a chain of confinement for those who 

would violate innocent citizens. DNA gives life, it administers justice, offers peace 

and validation, frees the innocent and I believe that it is one of the greatest crime 

prevention tools we have available today. All victims of crime deserve the experience 

of this gift of renewed life and I know that DNA can offer that gift. To withhold 

18 

that gift would be the act of denying our citizens the promised right of liberty and 

justice granted by our constitution. So I am honored and proud to be here with all 

of you representing that hope of promised justice. 

Mr. SCOTT. Thank you. Thank you. 

Dr. Hagy? 

TESTIMONY OF DAVID W. HAGY, DIRECTOR, NATIONAL INSTITUTE OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC 

Mr. HAGY. Thank you, Chairman Scott, Ranking Member 

Gohmert, and obviously the distinguished Members of the Subcommittee. 

And I want to thank, obviously, people like Debbie Smith who 

have worked tirelessly to raise the profile of DNA and its importance in crime and justice issues. 

Obviously, as they said earlier, NIJ’s mission is to advance scientific research to meet the challenges of crime and justice, and I 

am pleased to be here to talk about the department’s efforts in this 

area and forensic capacity, as well as—particularly as it regards to 

DNA. 

As you are hearing in the stories today, forensic science plays a 

vital role in the criminal justice system in solving crime, protecting 

the innocent and identifying the missing. 

Congress has repeatedly demonstrated its commitment to DNA 

technology, including the passage of the Justice for All Act in 2004, 

which includes the Debbie Smith Act. 

Since fiscal year 2004, NIJ has provided over $575 million to 

support DNA and forensic-related activities. Through the initiative, 

State and local law enforcement agencies have tested, as many 

have said earlier, 104,000 DNA cases. 

The NIJ has also funded the analysis of 2.5 million convicted offender and arrestee samples which will all be added to the National DNA Database. And again, as mentioned earlier, over 5,000 

hits or matches to unknown profiles or other cases have resulted. 

The NIJ has also supported many innovative research projects in 

human genetics, molecular biology and biotechnology. 

The research has dramatically improved DNA testing of sexual 

assault samples, which—we have heard from Congresswoman 

Maloney and Debbie Smith how important that is—as well as those 

of small, degraded or compromised evidence which is used in missing persons and mass disaster cases. 

Research in other forensic disciplines, such as impression evidence, toxicology, crime scene, other non-DNA areas have already 

greatly expanded. These research programs promise to revolutionize forensic science methods. 

NIJ has provided funding to expand the long-term capacity of 

criminal justice agencies to process DNA evidence on their own, 

through the purchase of modern equipment, hiring of staff, training 

of new analysts, and we have delivered basic and advanced cold 

case and missing persons training for law enforcement. 

NIJ produced an interactive resource tool entitled ‘‘Principles of 

DNA’’ for officers of the court to help lawyers and judges understand DNA and its implication. It doesn’t just stop with a match. 

It has to go on and make sure it follows through the entire process. 

19 

In 2007, we launched the National Missing and Unidentified Persons System, which we call NamUs. It is the first national online 

repository designed to help medical examiners and coroners share 

information about missing persons and the unidentified dead. 

The Department of Justice seeks to ensure that all Federal funds 

are spent wisely and that the criminal justice system can rely on 

the validity of forensic results. 

One major step in this direction is Grant Progress Assessment 

Program through which NIJ assesses 100 percent of its grants over 

a 2-year cycle. Since implementing the GPA program, 854 reports 

have been generated, thousands of forensics results have been reviewed by independent experts, and many important improvements 

have been instituted in labs that receive the funds. It is kind of a 

best practices as well as auditing. 

The Department of Justice has taken many other steps, such as 

ensuring accreditation of grantee laboratories, monitoring financial 

compliance, educating grantees about best practices and mandating 

the timely expenditure of Federal funds. 

We are aware that the Committee is concerned about the PostConviction DNA Testing Program. Please be assured that the Department of Justice remains fully committed to exonerating wrongly convicted individuals. 

The issue with the Kirk Bloodsworth Post-Conviction Testing 

Program has been with section 413 of the Justice for All Act. This 

section requires State applicants to demonstrate that they satisfy 

detailed and stringent eligibility requirements for preserving biological evidence and providing post-conviction DNA testing in connection with all State felonies. 

In fiscal year 2007, as it was said earlier, we issued a solicitation 

under those requirements of 413. We got three applicants and none 

were considered eligible for the program. 

With the benefit of the language that was provided in fiscal year 

2008 appropriation, we eased the eligibility requirements for the 

post-conviction program. 

One example is now a State must only address post-conviction 

testing and preservation of evidence in cases of murder, non-negligent manslaughter and rape, rather than all State felonies. 

NIJ’s fiscal year 2008 solicitation was issued in January. We conducted extensive outreach above and beyond what we normally do 

to ensure that people knew that this application was out there. 

Five States did submit applications. 

And assuming the requirements are met—we are working on the 

peer review now—we expect to make those awards this year. 

What we are also doing is trying to do a survey of the States that 

didn’t apply. We are just as concerned as to why we only got five 

States that applied. We thought that the three would be improved 

as the requirements were eased. 

So I just want to say we have made great progress. There is 

much more to be done. And it is this backlog, as mentioned earlier—the submission of violent and non-violent crime scene information, as well as the collection from offenders of violent crimes to 

all felons and now, in many cases, all arrestees is increasing that 

backlog. But we are working our best to do it. 

20 

And again, I want to thank you and just reiterate that whatever 

problems or concerns we have with the post-conviction program, it 

is not a lack of motivation on the very dedicated and bright staff 

of NIJ. I have the great privilege to work with them. 

So I can assure you our motivations are pure, and we are working very, very hard to get that money out. So thank you for having 

me, and I will open up for questions. 

[The prepared statement of Mr. Hagy follows:] 

PREPARED STATEMENT OF DAVID W. HAGY


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Mr. SCOTT. Thank you. 

Mr. Marone? 

TESTIMONY OF PETER M. MARONE, DIRECTOR, VIRGINIA 

DEPARTMENT OF FORENSIC SCIENCE, RICHMOND, VA 

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

Gohmert, other Members of the Committee. 

I am director of the Department of Forensic Science, as the 

Chairman indicated, but I am also speaking today as Chairman of 

the Consortium of Forensic Science Organizations. 

And what that is is six national organizations—the American 

Academy of Forensic Science, the National Organization of Medical 

Examiners, the American Society of Crime Laboratories, the International Association of Identification, American Society of Crime 

Laboratory Directors, Laboratory Accreditation Board, and maybe 

I missed somebody, but you get the idea. It is essentially the forensic science community. 

Just this past Monday, Maryland joined a great number of States 

in adding arrestee testing to their databases. Now, this is good and 

bad, if you look at it from an operational standpoint, because what 

we have experienced is, as we progress, as we develop more sensitive and more direct science, more technology, and add to the 

databases that the various States are looking at, that is very good. 

However, what it also does is it increases the number of cases 

that are available for laboratories to work. And with the databases, 

the number of hits that we have all talked about—and we have 

talked about the numbers—hundreds of thousands of old cases that 

are now worked. 

And we are in a situation where laboratories are forced to struggle between the old cases, the cold cases, the post-conviction cases, 

court dates and everything else, and it is not that they wouldn’t 

really love to be able to do everything, but the resources just aren’t 

there. 

The new services such as Y-STRs, mitochondrial typing, miniSTRs—all those methods go toward certainly new applications and 

the ability to be able to not only find the guilty but exonerate the 

innocent, and that is truly important. 

The casework backlog, as has been stated before, is somewhere 

around 350,000. Again, when we originally started the funding in 

2000 and 2001, there were about 400,000, 450,000 offenders, convicted offenders, in the CODIS databank. Now there are several 

million. 

Virginia alone started out with a few thousand. And thanks to 

a lot of far-thinking legislators in Virginia—by the way, the Chairman was one of them at the time who established the Virginia 

databank, and found that money for Virginia to essentially test 

240,000 of those samples prior to any Federal funding being provided. 

The laboratories are catching up with the backlogs, but what is 

happening is—and I have heard the criticism; I am sure Mr. Hagy 

has heard the criticism—that in spite of the amount of money that 

has been funded to laboratories that the backlog is just not coming 

down. 

29 

What is happening is the number of cases that are being worked 

is certainly going up, but because of the influx of a significant number of cases, it is a losing battle of more cases coming in the door 

even though you are working more. The backlogs aren’t coming 

down as quickly as we would like. 

Virginia, for example, from 2003 to 2007 cut the backlog in half. 

That is at the same time that the receptions went up 50 percent, 

60 percent. 

There have been numerous success stories from Virginia that 

come out of the DNA funding under the Justice for All Act establishing many training positions that we funded under grant funding and, with projections, later on turned those grant-funded positions into fully funded positions under our FTEs. 

I want to read this so I get it exactly right. The forensic science 

community enthusiastically supports the reauthorization of the 

Debbie Smith Act and encourages Congress to continue funding for 

DNA backlog casework and research development. 

It would be impossible for us to keep up with this issue not getting that funding. While the Commonwealth of Virginia is fortunate to have our administrations—several—and legislatures—they 

provided significant support for us not only in positions but in facilities—other States aren’t that lucky. 

I would also like to address, then, the Bloodsworth Act, and 

maybe answer some of those issues with funding for post-conviction 

testing. Virginia was one of those States that applied. We have applied again. 

And we have a significant—or should I say a very interesting 

issue in that the cases we are analyzing are cases for which we 

possess that evidence, so we know what that finite pool of cases is 

to be able to address for grant purposes. 

What the other States don’t have necessarily is a handle on what 

that number is. Funding for post-conviction testing is just as important as funding for any other type of DNA processing. 

Thank you. 

[The prepared statement of Mr. Marone follows:] 

30 

PREPARED STATEMENT OF PETER M. MARONE


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Mr. SCOTT. Thank you. 

Mr. Brooks? 

TESTIMONY OF LEVON BROOKS, WRONGFULLY CONVICTED 

OF MURDER AND EXONERATED THROUGH DNA EVIDENCE 

Mr. BROOKS. Thank you, Mr. Chairman—my name is Levon 

Brooks. I was locked up for a crime I did not commit. I did 18 

years, and I was exonerated in March of this year. 

And to give you a little example on how it was when I was 

there—a nightmare—gave up one time but I had to fight with everything that I had, you know, to make it, even with all kinds of 

people that you are around every day. 

But I had to do what I had to do to make it. But thanks to DNA, 

me and a lot of more guys—we were freed. And I am going to let 

this be short, because I am so happy to be out that I can’t get my 

words out right. 

But I am going to do the best that I can. And we don’t get nothing for re-exonerated. We are not getting compensated or nothing. 

And it is really kind of hard on us, you know, just coming back to 

the street. 

We ain’t got nothing, so we try to make it—you know, the family 

that I got, you know—they trying to help me now, but I really need 

help on that issue. If you all could, you know, please help us out. 

And I think I could speak for the other guys, too. 

But I want to thank the Innocent Project, Mr. Peter and Ms. 

Vanessa, that has helped me get through this ordeal on running 

the DNA tests and stuff like that to help me. 

Then—to say thank you, God, I am here today. And DNA is a 

important thing, so that, like I said, that has freed me and a lot 

of more guys, and we are thankful. 

And I won’t take up too much of your time, and I thank you just 

for being here. 

Mr. SCOTT. Thank you. And what State were you in? Were you 

in Mississippi? 

Mr. BROOKS. Yes, sir. 

Mr. SCOTT. Thank you. 

Mr. BROOKS. Macon, Mississippi. 

Mr. SCOTT. Thank you. Thank you for your testimony. 

Mr. BROOKS. Thank you, sir. 

Mr. SCOTT. And, Peter Neufeld? 

TESTIMONY OF PETER NEUFELD, CO-FOUNDER AND CODIRECTOR, INNOCENCE PROJECT, NEW YORK, NY 

Mr. NEUFELD. Good morning, Chairman Scott and Ranking 

Member Mr. Gohmert, Congressman Nadler. 

Just to give you a little bit of background, because I think it is 

important here, back in the fall of 1990—— 

Mr. SCOTT. We are going to have a couple of votes in a minute, 

so we will conclude your testimony and then come back for questions. 

Mr. Neufeld? 

Mr. NEUFELD. Okay, sure. Back in the fall of 1990, in Mississippi, a 3-year-old girl was abducted from her house in the midVerDate Aug 31 2005 09:28 Jan 06, 2009 Jkt 000000 PO 00000 Frm 00046 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\041008\41698.000 HJUD1 PsN: 41698
43 

dle of the night. She is taken out. She is sexually assaulted. She 

is then killed, and she is dumped in a pond behind her house. 

There was a logical suspect. There was a pedophile. There was 

a young man in the community who had sexually assaulted other 

young women. Nevertheless, that suspect was not pursued, and instead attention focused on the boyfriend of the mother of the 3- 

year-old girl. 

And that young man was Levon Brooks. The only evidence used 

to convict Levon Brooks was the discredited testimony of a forensic 

dentist and local coroner and a pathologist, a pathologist who routinely testified in murder cases all over Mississippi, because he was 

the only one to do it at a discounted price. 

It was a capital case. Levon Brooks was convicted of the capital 

murder, but because of residual doubt he was sentenced to live in 

prison without parole. 

Eighteen months later, 11⁄2 miles away in the same tiny, rural 

town in Mississippi, another 3-year-old girl is abducted from her 

home. She is taken out into the woods. She is sexually assaulted. 

She is then strangled and killed. And she is deposited in a creek 

behind the house. 

Now, to anyone looking at these two crimes, you might think, 

‘‘My goodness, they were obviously committed by a serial 

pedophile.’’ But law enforcement in Macon, Mississippi didn’t see it 

that way. And this time, they convicted a guy named Kennedy 

Brewer, who was the boyfriend of the second girlfriend. 

And again, he is convicted on the same discredited testimony, the 

same corrupt forensic dentist, and the same discredited testimony 

and false testimony of the local pathologist who did all the autopsies for 80 percent of the prosecutors in Mississippi at that time. 

He wasn’t as lucky as Levon. He was sentenced to death and was 

sent off to Parchment death row to be executed. Years passed, and 

finally—finally—we got access to DNA, but not because there was 

a statute providing access to the DNA, not because there was a 

statute in Mississippi requiring them to preserve evidence. 

Now, Brewer, the second guy, Kennedy Brewer, gets DNA testing 

because his lawyer, one of the very few, asked the court at the end 

of the trial, ‘‘Please preserve the biological evidence.’’ 

And then later on, when we requested testing, we couldn’t get it 

until the Mississippi Supreme Court finally decided, ‘‘You know, in 

this case, you might want to do some testing.’’ 

And so Brewer gets testing on semen left by the perpetrator of 

the second crime, and it not only cleared Mr. Brewer, but eventually we called attention to this serial pedophile who was still out 

there at liberty, and DNA testing was done on him, and it matched 

him. 

We tried to do DNA testing on Mr. Brooks’ case, but unfortunately, again, because Mississippi did not have a preservation statute, the biological evidence was not adequately preserved. 

But thank God for Mr. Brooks that, when the Attorney General 

took over the case and apprehended the real perpetrator just a couple of months ago, and started talking to the real perpetrator on 

videotape about the abduction of that little girl, Christine Jackson, 

in the Brewer case, he said, ‘‘You know, by the way, I did another 

44 

one, and the one I did was this little girl, Courtney Smith. It is the 

one that Levon Brooks was convicted of.’’ 

So it was serendipitous, if you will, because there was no preservation, and there was no access to the DNA, that Mr. Brooks, along 

with Mr. Brewer, was completely exonerated of this horrible, horrible crime. 

And of course, we join with Debbie Smith and Carolyn Maloney 

and the other people here who understand the importance of DNA 

and also understand how unreliable forensic science evidence, like 

the type used in these two cases—okay?—should be discarded, 

should be improved, and hopefully Congress will do that, at the 

same time opening up the opportunity for people like Levon Brooks 

and Kennedy Brewer to get DNA testing. 

Congress in its infinite wisdom passed the Justice for All Act and 

put aside a good pot of money so there would be testing. However, 

the executive branch gutted that, took away the financial incentives for poor States like Mississippi, like Alabama, to do DNA testing, left a small amount of money in the Bloodsworth grant, and 

that was it. 

Eighty people have been—of the 215 people who have been exonerated, 80 other people were identified as the true perpetrators. 

And in every case, almost every case, those 80 people committed 

other serious violent crimes in the intervening years. 

Congress knew that to get the States to allow for access to DNA 

and to preserve the evidence, there had to be financial incentives. 

But it was taken away by the President, and the small amount 

that was left was poorly managed by NIJ’s OJP. 

They put difficult obstacles in the way of most States, and they 

did it to the point that in the first year only 3 of 50 States even 

applied for the money, and now you have only 5 States, at a time 

when they say they have made it much easier to happen. 

They haven’t made it that much easier. It is still very difficult 

for the States to do it. Attorney generals for this money alone have 

to certify that they have met certain tasks, and when they certify 

it, they have to swear to it under penalty of criminal prosecution. 

We have looked at other authorizations and requests for proposals from the Justice Department, and we have not seen anything quite that draconian. So as a result, you only have a few 

States doing it. 

The law needs to be changed. Hopefully you will do that. Hopefully you will allow that other monies that people get to do DNA 

testing and laboratories get will be conditioned on providing access 

to post-conviction DNA testing or preserving the evidence. 

Preservation is not just about the innocent. Preservation is also 

required so cold case units can look at old cases. It is a no-brainer. 

But they are not doing it. 

So hopefully Congress will impose that requirement as a condition of getting these other monies like it was initially intended in 

2004. Change that law so there won’t be more Levon Brooks’, so 

there won’t be more Kennedy Brewer’s, and there won’t be more 3- 

year-old girls who didn’t have to be executed if the police had done 

it right the first time in 1990. Thank you. 

[The prepared statement of Mr. Neufeld follows:] 

45 

PREPARED STATEMENT OF PETER NEUFELD


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Mr. SCOTT. Thank you, Mr. Neufeld. 

As I indicated, we have votes in just a minute. If someone wanted to be recognized for a minute or so before we come back—— 

Mr. CHABOT. Mr. Chairman? 

Mr. SCOTT. The gentleman from Ohio? 

Mr. CHABOT. Mr. Chairman, yes, I think I can do this in 1 

minute. I appreciate the opportunity to make a very brief statement. 

I would like to thank you for holding this hearing on such a critical topic, and the opportunities that have been made available to 

the criminal justice system through DNA technology are significant 

and quite remarkable. 

I have a constituent. Her name is Debra Culberson. Her daughter, Carrie Culberson, was murdered. Her remains were never 

found—never been located, and she has been an inspiration to 

many people in our community in trying to locate her daughter and 

deal with this terrible situation. 

And I appreciate and support H.R. 5057. I am a co-sponsor. However, there is one aspect of the DNA Initiative that I want to emphasize, and that is the use of DNA testing to identify and locate 

missing persons and human remains. 

More than 40,000 sets of unidentified human remains rest in laboratories or offices, often times sitting in a box or something on the 

shelf, across the Nation. 

Section 308 of the Justice for All Act was intended to encourage 

jurisdictions to use the technology for the purpose of identifying 

this and to submit the samples to the FBI missing persons database so that there was one central repository to which jurisdictions 

could access information. 

To date, this remains an underutilized component of the DNA 

Initiative, and I would just like to urge this Committee to focus appropriate attention on this important issue. 

And I thank you for yielding, and I yield back my time. 

Mr. SCOTT. Thank you. 

Mr. DAVIS. Mr. Chairman, I can probably do this in 45 seconds. 

Mr. SCOTT. The gentleman from Alabama? 

Mr. DAVIS. I don’t have additional questions for the panel, but 

I have a constituent of mine, Angelo Della Manna, who is the chief 

of forensic biology and DNA for the Alabama Department of Forensic Sciences, who believes very much in this program, has found it 

enormously helpful in my State. 

And he has submitted written testimony to the Committee that 

I would ask to be placed in the record. 

Mr. SCOTT. Without objection, so ordered. 

[The information referred to follows:] 

107 

PREPARED STATEMENT OF ANGELO DELLA MANNA, CHIEF OF FORENSIC BIOLOGY & 

DNA, ALABAMA DEPARTMENT OF FORENSIC SCIENCES, BIRMINGHAM, AL 


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Mr. SCOTT. And we will recess for approximately 15 minutes, and 

we will be back as soon as the voting is over. 

[Recess.] 

Mr. SCOTT. The Subcommittee will come to order. We will now 

proceed with questions from the Members, and I will recognize myself for 5 minutes. 

Dr. Hagy, there is obviously a bipartisan consensus that we need 

to deal with this backlog of DNA samples. How much do we need 

to appropriate to effectively eliminate the backlog, consistent with 

the DNA technology that we have? 

Mr. HAGY. I am sorry? 

Mr. SCOTT. How much money would we have to appropriate to 

deal with the backlog? We have a bipartisan consensus, I believe, 

that we ought to be doing something. We have got these hundreds 

of thousands of kits floating around all over the place. 

How much would we need to appropriate to effectively deal with 

the backlog? 

Mr. HAGY. I don’t even know if I could make a guess at that. I 

will tell you how we spend our money, because as an agency that 

Congress and the American gives money, what we try to do is focus 

our efforts on those things that have the biggest impact—our research and development, our capacity-building, measures to increase the throughput in the processing. 

So we really focus on those efforts first, and then whatever—I 

mean, we always do, but we also want to send money out to the 

labs, and the equipment and some things that you buy in the field. 

So I really can’t pick a figure. What I can say—we try to—— 

Mr. SCOTT. Can you go back and try to pick out a figure? Because we would like to eliminate the backlog. As we have heard, 

because people are doing a better job in gathering samples, the 

backlog is not really—we are not really even chipping away at the 

backlog. 

How much would we have to appropriate to effectively eliminate 

the backlog? 

Mr. HAGY. I couldn’t even get at a number. I apologize. It could 

be any amount. Like I said, the money we have now—we are trying 

to efficiently and effectively spend it. We will spend what we get, 

and we are fully committed to it, but it could be any number. 

And again, I don’t know the future. We have some agencies that 

are having trouble spending their money. Some are spending more, 

and I—— 

Mr. SCOTT. Well, let me ask you about the grants that are outstanding. Are we effectively spending the money that we have already appropriated in terms of grants? We had the technical problems before. 

Are there technical problems that may occur that would prevent 

you from releasing the funds that we have already appropriated? 

Mr. HAGY. I don’t see really technical problems. Beyond the postconviction issue that we are aware of, I don’t see a lot of technical 

problems. We do see some States that you see in most grant programs—procurement issues, training of analysts so the casework 

can move faster is one of the concerns we have. 

118 

Also, I think last year we had some money that is still out in the 

field. We try to keep a running total of what is out in the field because the budgets are coming later in the year. 

I think the analyst concern, procurement policies—those somewhat slow it down. But I think as far as technically, we are getting 

the money out the door. 

Mr. SCOTT. Mr. Marone, can you help us in what would be needed to deal effectively with the backlog, how much money you need? 

Mr. MARONE. Unfortunately, I tend to agree with Dr. Hagy about 

the dollar figure issue, because what he doesn’t have control of— 

what Congress doesn’t have control of and what the field desperately needs is cooperation at the State and local level. 

He can give me money. If I can’t get the FTEs, the positions, to 

train those people under grant funding, or I don’t have the facilities 

or the maintenance, the under-all maintenance, to do that, that is 

the problem. 

Mr. SCOTT. Well, yes, but that—again, you get to money. What 

do we need to do as Members of Congress to effectively deal with 

the backlog? All we are getting is mumbo-jumbo. 

Mr. MARONE. Well, okay. What we need do is, then, incentivize 

the situation. 

Mr. SCOTT. How much money do we need? 

Mr. MARONE. He just told me you are utilizing $150 million now. 

I would say probably three times that might be—but the key is—— 

Mr. SCOTT. So for less than $1 billion we can get rid of the backlog. 

Mr. MARONE. Yes, sir. Well, that will help to get rid of the backlog. 

Mr. SCOTT. Well, if somebody can come up with some suggestions, we would like to hear them, because we are trying to eliminate the backlog, and all we get is—you know, I asked a simple 

question, and 5 minutes is almost up. I haven’t gotten an answer 

yet. We are looking for a number. 

Mr. MARONE. It is not a simple answer. That is the problem. No, 

seriously, States—— 

Mr. SCOTT. It is a number. 

Mr. MARONE. The problem is that States have to cooperate in 

this to agree to provide support. In addition to the Federal funds, 

there have to be buildings, there have to be people. 

And so Federal funds in and of themselves aren’t going to correct 

that situation. That is the problem. 

Mr. SCOTT. Federal funds can build buildings. 

I will reserve the balance of my time for the next round. 

Mr. Gohmert? 

Mr. GOHMERT. Well, thank you, Mr. Chairman. 

First, let me go to Ms. Smith. 

And I was honored to have the chance to meet you and visit with 

you during our break for votes. 

But you know, something was mentioned earlier when you mentioned about self-destructive tendencies after a sexual assault, and 

I think it speaks volumes for you that you have turned that into 

a positive to help so many across the country who have been victims. 

119 

But I did as a judge see repeatedly that self-destructive tendency 

which was then used against victims or attempted to be used 

against victims when they went to testify at trials. 

So thank you for—I know it hasn’t been easy, and closure doesn’t 

mean complete closure. It just means a chapter. But thank you for 

what you are doing. 

And if at any time—let me just tell this to all our panelists. Your 

testimony doesn’t have to end today. The question has been put by 

the Chairman—we are trying to get to the bottom and get to a solution. You can submit us things in writing. This is how you can 

help the program. 

And so I want to follow up what the Chairman was trying to get 

to. Let me go to Mr. Marone. 

Rather than a number, I am going to try to find out what do you 

think would be the most helpful change we could make to Federal 

law? I heard you say something about well, we don’t have adequate 

training in the State and local areas. 

Do we need to have some of this money go for training programs? 

Is that something that needs to be part of the fix? 

Mr. MARONE. Absolutely. Actually, I have to be very, very careful 

what I say, because I sit on the National Academy of Sciences 

Committee looking at these very issues, and we have been knocking these issues around for the last year, now—— 

Mr. GOHMERT. Well, I would have thought you would have an 

answer ready. 

Mr. MARONE. And so what I see is it is a combination of all these 

things. The Chairman said Federal money can building buildings. 

Right now, I can use Federal funds to expand existing space I have 

or renovate it to make labs. I can’t build a new building with it. 

That is one of the issues. 

Training is certainly, in essence, a very, very important part of 

the aspect there. 

Mr. GOHMERT. But do you think it is the most important? That 

seemed to be where you were going a moment ago. 

Mr. MARONE. They are all equally important. You have to have 

facilities to put people in. You have to have positions in order to 

train people. 

Over the last 2 years, Virginia got 34 positions, and it has taken 

us a couple of years to incorporate all those positions into now productive positions, not just for DNA but for other positions also. 

So for example, like firearms examiners take a year, DNA—or, 

excuse me, 2 years, DNA examiners take a full year, maybe 9 

months, to train them. So once you have the position, it takes almost a full year to get them into speed where they are in a position 

to work those cases. 

Mr. GOHMERT. So you are hiring people that aren’t trained and 

equipped to do the DNA study? 

Mr. MARONE. You are hiring college graduates and having to 

train them. The pool of experienced, qualified examiners is so 

small—yes, I can steal them from the next State over if I offer 

them more money, and that will help, but on the national level it 

doesn’t help to trade people around. You have to produce new people. 

120 

Mr. GOHMERT. It just seems like the training could go a lot 

quicker than two to 4 years. 

Mr. MARONE. Well, a year for DNA folks. No, sir, it can’t. You 

know, maybe 9 months on the outside, but on the inside—— 

Mr. GOHMERT. Is there any college program in the country that 

would have people trained to do DNA studies in the criminal forensic area when they come out of college? 

Mr. MARONE. They have all—and yes, there are. I actually also 

sit on the Committee that accredits college programs for just this 

thing, but—— 

Mr. GOHMERT. So you all are not accrediting—I mean, you have 

accredited people that are preparing people that are unprepared. 

Mr. MARONE. You are accrediting colleges to have the appropriate programs to do this, yes, sir. 

Mr. GOHMERT. But you have got to come back and train them before they are—— 

Mr. MARONE. You still have to screen them on the particular applications. They learn all the theory. They learn the genetics, the 

molecular biology, the biochemistry, but they don’t know the specifics. 

And there are no college programs now that teach specifically the 

application. That is the key. 

Mr. GOHMERT. Well, that sounds like that is a problem, so if—— 

Mr. MARONE. It is. 

Mr. GOHMERT [continuing]. You are on the board to do an accreditation, then you need to tell them, ‘‘We are not going to accredit 

you unless you can prepare people to go do these jobs when they 

come out,’’ and not cause them to have to get more student loans 

or more training for 4 years after they get out. 

And let me just say, because my time is running out, Mr. Brooks, 

nobody could wish on anybody what, you know, you have been 

through for 18 years. 

I know some States like mine have programs where if you are 

wrongfully convicted, there is no amount of money that is going to 

give you back your 18 years, but at least, my goodness, you don’t 

walk out with nothing, struggling as apparently you have. 

At least there are funds to help someone like you wrongfully convicted to at least have some seed money to get a start, and I am 

sorry that you have had to deal with that issue and for what you 

have been through. 

Mr. Neufeld, from your position, do you see—what do you see 

that needs to be done, the most important thing, to fix this legislation to where we address the DNA backlogs? 

Mr. NEUFELD. On the DNA backlog or on the inability of people 

like Mr. Brooks to get access to evidence and post-conviction? 

Mr. GOHMERT. Well, yes, I am asking what do you see is the 

most important fix we can do to Federal legislation to address the 

DNA backlog the quickest so we don’t have people languish 18 

years? 

Mr. NEUFELD. The one point I would agree with Mr. Marone on 

is that, really, what has to happen—and Congress is going to probably do this—the sooner, the better—is realize just how critically 

important forensic science is not only as a matter of public safety, 

121 

not only to identify innocent people and help them, but also to fight 

terrorism and everything else involved in—— 

Mr. GOHMERT. Okay. Let’s assume we have got that realization. 

Now how do we fix the legislation? 

Mr. NEUFELD. You are going to need an infusion of capital to 

allow for the training and education on a massive level in the 

United States of all the people who can do not only DNA work but 

all the other valuable forensic disciplines that are utilized in laboratories like the one that Mr. Marone runs and other people run 

around the country. 

You are going to have to have a program where better forensic 

science is utilized so we don’t have the kind of situation that Mr. 

Brooks had to suffer, where you have an incompetent dentist and 

an incompetent pathologist providing false testimony to—— 

Mr. GOHMERT. Well, we are still at 30,000 feet. We are trying to 

get down to fixing the words in the law that make those things possible. We have got the realization among these folks. 

Mr. NEUFELD. The Innocence Project is not involved, sir, with all 

due respect, in thinking about how to clear up the DNA backlog, 

which obviously we join in wanting to do, but it is going to be taking people like NIJ and numbers crunchers there to offer you the 

kind of assistance that you seek. 

Mr. GOHMERT. Okay. I thank you. 

Mr. SCOTT. The gentleman from New York, Mr. Nadler? 

Mr. NADLER. Thank you. 

First of all, Mr. Neufeld—well, first of all, let me say that I feel 

very strongly about this whole subject. Back in February of 2002, 

I introduced an amendment to the Judiciary Committee’s budget 

views and estimates to put the Committee on record as supporting 

full funding to eliminate the backlog of DNA evidence. 

And in March of that year, I introduced the Rape Kit DNA Analysis Backlog Elimination Act to provide $250 million for that purpose, and that was all folded into the Debbie Smith Act. 

But let me ask you, Mr. Neufeld, you mentioned that in Mr. 

Brooks’ case and in other cases, this dentist and pathologist testified, and they testified in a lot of cases. Did they testify knowingly 

falsely or they were just incompetent? 

Mr. NEUFELD. We realized in the two cases involving Mr. Brooks 

and Mr. Brewer—cases that they testified falsely and—not only did 

they testify falsely, but it appears to experts who reviewed the evidence that they have testified deliberately falsely. 

Mr. NADLER. Have they been punished? 

Mr. NEUFELD. They haven’t been punished yet, although we filed 

a complaint with the medical licensing boards of Mississippi this 

week seeking Dr. Hayne’s medical license, and we have asked—— 

Mr. NADLER. I assume the statute of limitations on perjury has 

long since passed. 

Mr. NEUFELD. No, it hasn’t, because under Mississippi law, for 

instance, there is an exception for fraud. 

Also, we have asked the Federal Government—we have asked everybody we can to look into the possible criminal penalties for 

these people who used known falsehoods to convict innocent people 

and, frankly, of capital cases. 

122 

Mr. Brewer, the other gentleman, went to death row. You know, 

as far as I am concerned, on a personal level, if you fabricate evidence in a capital case with the intent to send an innocent person 

to death row, you are committing the crime of attempted murder. 

Mr. NADLER. Yes. And you have been unsuccessful in getting 

prosecutions? 

Mr. NEUFELD. So far we have. 

Mr. NADLER. In your general work with proving other people innocent, have you found perjury to be a major problem or just rarely? 

Mr. NEUFELD. Well, you know, that depends on what you mean 

by perjury. 

Mr. NADLER. Deliberate false testimony. 

Mr. NEUFELD. Right. We have found that one of the significant 

causes of wrongful conviction has been police and prosecutorial 

misconduct, where either people suborned perjury or people get on 

the witness stand and—— 

Mr. NADLER. And as to people who have been proven innocent 

because of improper conduct, do you find that generally remedial 

action is taken, or is it just shrugged off? 

Mr. NEUFELD. There has been historically very little remedial action, particularly, unfortunately, among prosecutors. 

A lot of prosecutors are very conscientious and are doing the 

right thing, but on those occasions when they step out of line and 

do the wrong thing, there is no discipline. 

In fact, in our State, like most States, even when a case is reversed for prosecutorial misconduct, there is no disciplinary action. 

There is no remedial action. There is nothing done to the offending 

prosecutor. 

Mr. NADLER. Would you think it might be a good idea for Congress to condition aid to States for justice matters on some sort of 

a record of disciplining people who bring about wrong convictions 

because of deliberate misconduct? 

Mr. NEUFELD. I think it would be very good for Congress to do 

everything they could to create financial incentives on the States 

to take remedial action to eliminate or seriously reduce the causes 

of wrongful conviction. 

Misconduct is certainly one of those. Lawyers who are asleep in 

the courtroom is another. Police who secure false confessions is a 

third. Sloppy identification procedures which generate false— 

misidentifications is a fourth. 

All those causes need to be addressed. Congress can certainly get 

involved with that and create financial incentives for the States to 

eliminate those causes. 

Mr. NADLER. Let me ask you one other—thank you. Do you think 

it would be a good idea also for Congress to incentivize States to— 

we passed, as you told me in the break—Congress passed a bill a 

number of years ago to provide for compensation for Federal prisoners who have been wrongly imprisoned and urged States to do 

so, but almost—but very few States have done that. 

Do you think that the Federal Government should condition 

grants to States on their establishing programs to compensate people who spend significant amounts of time after wrongful convictions in State prisons? 

123 

Mr. NEUFELD. I think you can incentivize States to do the right 

thing with respect to compensation, because there is no question 

that the notion of compensation enjoys wide bipartisan support. 

No one feels that somebody like Levon Brooks, who spent 18 

years in prison—I mean, the crazy thing about Mr. Brooks here is 

1 month before he went to prison, he was accepted into art school. 

He was about to leave a town of 350 in rural Mississippi, move 

north to go to art school. Instead, he spent the next 18 years in 

some of the worst prisons in America. He obviously deserves some 

measure of compensation to try and get his life—— 

Mr. NADLER. Thank you. And finally, you said that the executive 

branch had gutted the act, that it eliminated financial incentives 

to States. Only five States have applied for Federal money. What 

changes do you think should be made in the reauthorization act? 

Mr. NEUFELD. Well, what happened very specifically was that in 

2004, when Congress—it was the will of Congress in the Justice for 

All Act—had four different revenue streams that would go to the 

States to incentivize them to provide access for DNA testing and 

to preserve biological evidence, which was not only good for the innocent, but it was also good for police that want to do cold case 

units. 

What happened after Congress did that is the President did an 

end run around that legislation in the Justice for All Act by eliminating the incentives for three of the four parts, and those were 

the—— 

Mr. NADLER. By eliminating, you mean just not funding it. 

Mr. NEUFELD. So they weren’t funded at all—no, no, no. What 

happened is he gave them the funding but they no longer had, as 

a condition of receiving the funding, have to either preserve the 

evidence or authorize—— 

Mr. NADLER. Was that legal under the act? 

Mr. NEUFELD. Excuse me? 

Mr. NADLER. Was that legal under the act, or did the President 

break the law? 

Mr. NEUFELD. No, no, no, the President—through the President’s 

DNA Initiative, which was basically appropriating money—ignored 

the original authorization willed by Congress that said that these 

four pots of money would be conditioned on preservation and access, and said we are just going to give you the money without the 

condition. 

I don’t know anything about congressional authorizations and appropriations that I would take a step—— 

Mr. NADLER. Okay. 

Mr. Chairman, can I have unanimous consent for 1 minute for 

one question to Mr. Hagy? 

Mr. SCOTT. Without objection. 

Mr. NADLER. Thank you. 

Mr. Hagy, you just heard Mr. Neufeld say the Administration 

gutted the law by ignoring the incentivization. Can you tell me why 

and what you will do to fix that? 

Mr. HAGY. I can’t tell you why because I am not familiar with 

the parts of the legislation in 2004. I wasn’t involved in the initiative. 

Mr. NADLER. Can you get back to us on that? 

124 

Mr. HAGY. I can. 

Mr. NADLER. On the specific statements that Mr. Neufeld made 

about we gave incentives in the law for access to DNA and for various other things, the Administration made an end run around that 

by removing the incentives, and what you plan to do to obey the 

law by changing that end run. 

Mr. HAGY. I will get you an answer to that. 

Mr. NADLER. Thank you. 

I yield back. 

Mr. SCOTT. The gentleman from Alabama, Mr. Davis, I think was 

here next. 

Mr. DAVIS. Thank you, Mr. Chairman. 

Mr. Neufeld, let me have a conversation with you, if I could, 

about a case in Alabama that caught my attention. It involved 

someone named Thomas Arthur. You are aware of that case, I 

know. 

Mr. NEUFELD. I am aware of it. 

Mr. DAVIS. Most of the questions are going to be coming to you, 

so you might be better leaving your mike on so you won’t have that 

keep happening to you. 

I know the Innocence Project has gotten involved in this case, 

and it caught my attention for two reasons. 

These are the facts. There is a death penalty defendant in Alabama who was convicted in 1982 of a rape-murder, and at the time 

he was convicted DNA tests were not widely available in my State, 

and he has never had the benefit of a DNA test. 

He has argued that the State should conduct these tests under 

Alabama law. The Governor of the State has enormously broad authority in any matters for which he may issue a commutation or 

pardon. Actually, even the Attorney General of Alabama concedes 

that the Governor has the legal authority to order DNA testing. 

The Governor has declined to do that, and it caught my attention 

because—I would like unanimous consent, Mr. Chairman, to introduce into evidence a Birmingham—or to put into exhibit, rather, at 

the hearing—I am used to my courtroom days—a Birmingham 

News editorial dated Thursday, November 29, 2007, ‘‘DNA Testing 

for Arthur.’’ 

[The information referred to follows:] 

125 


Z-1.eps
126 

Mr. DAVIS. It is interesting because, candidly, it is the only time 

I recall the Birmingham News ever criticizing the Governor of Alabama. They are a very, very, very, very, very strong supporter of 

his. 

And the only time I have ever seen them criticize him on their 

editorial pages was over his refusal to order DNA testing. 

So I want you to talk with me a little bit about, first of all, a 

broad proposition. Is there any cost to the criminal justice process 

in terms of efficiency—is there any unusual burden that is imposed 

from a State ordering DNA tests for someone who never received 

them? 

Mr. NEUFELD. Well, first of all, you are absolutely right about 

Alabama. Alabama is one of those States, for instance, that doesn’t 

have a statute authorizing post-conviction DNA testing. 

And so the only way that somebody can get post-conviction DNA 

testing, even if they are on death row in Alabama, is if the Governor on his own decides to do it. 

And so we went to the Governor and asked him to exercise that 

authority, because we don’t know if the man is innocent or guilty, 

but DNA can answer that question. 

Mr. DAVIS. And there is no dispute about his authority. He said 

he didn’t have it, but the Republican Attorney General says he has 

it. 

Mr. NEUFELD. No, he has the authority, okay? And obviously, everybody wants to get to the truth, or you would expect that everybody would want to get to the truth. 

The consequences of doing DNA testing financially only err to 

the benefit of the State. Obviously, if you have the wrong guy, you 

are not going to have to pay to house him in a prison any longer. 

If you have the wrong guy and you can do DNA testing and get 

a CODIS hit and identify the real perpetrator who is out there on 

the street committing other violent crimes—— 

Mr. DAVIS. Give me a number, just to put it in perspective. How 

much is a DNA test, or how much would a DNA test cost for—— 

Mr. NEUFELD. In that case, it would be a couple thousand dollars, in that case, given the nature of the evidence. And we have 

offered to pay for it as well, so it wouldn’t even be an expense of 

the people of the State of Alabama—but simply refuses. 

Mr. DAVIS. What is the Governor’s basis for refusing? 

Mr. NEUFELD. The Governor’s original basis for refusing was that 

he didn’t want to delay the execution. 

Mr. DAVIS. It has already been delayed. 

Mr. NEUFELD. Well, once the Supreme Court decided to take up 

the issue of lethal injection, and he knew it would take 4 months 

at least before that was decided, it would only take 4 weeks to do 

the testing, he then didn’t offer another justification. 

Mr. DAVIS. Because it has been delayed. The Supreme Court has 

delayed it. They delayed it last December. So is there any reason 

why the State couldn’t conduct the test now in the interim? 

Mr. NEUFELD. All he has to do is authorize it. 

Mr. DAVIS. Let me just end with this observation. I differ from 

some of my colleagues on this side of the aisle. I am a supporter 

of the death penalty, and that puts me in the minority on this side 

of the aisle. 

127 

But when I look at a case like this, I am compelled to make an 

obvious point. If we can put in place a more regular procedure at 

the State level and incentivize States to do it, Congress can 

incentivize States to put in place a more regular procedure to 

allow, certainly, capital defendants to receive DNA testing when it 

was not available at the time of original conviction, that strikes me 

as not an unreasonable course of action—in fact, it strikes me as 

a reasonable course of action—I suspect—Mr. Chairman, if I can 

just finish this point up, I suspect the reason that it hasn’t occurred is that, you know, those of us in the political world don’t 

want anyone to say that we are soft on crime, we don’t want anyone to say well, we are trying to provide some delay in the criminal 

justice system. 

But it strikes me a $2,000 test that would have the effect of either exonerating someone or at least possibly casting a major doubt 

around his case is not a major burden to the system. 

And your point, Mr. Neufeld, I think is that if individual prosecutors have to make the decision, they can’t always be counted on to 

want to reexamine their cases. If Governors have to make the decision, they can’t always be counted on to reexamine decisions. 

So maybe we do have to have in place a procedure that is more 

hospitable, that doesn’t require a political actor to make the ultimate decision on review. 

Mr. NEUFELD. The only thing I would take issue with, sir, is that 

I don’t believe it is a question of being soft on crime. For instance—— 

Mr. DAVIS. I didn’t say it was. I said that was what—let me finish my point. 

Mr. NEUFELD. Debbie Smith, for instance, has been a longtime 

supporter of our efforts to get post-conviction DNA testing—— 

Mr. DAVIS. Yes. Well, I—— 

Mr. NEUFELD [continuing]. Incentivize the States to do that testing. 

Mr. DAVIS. I am not sure if you didn’t hear me or—I wasn’t saying it was a matter of being soft on crime. The point that I was 

making was that that is often the fear, and I don’t think you would 

doubt me that is often the fear, of people who decline to wade into 

these issues. 

I am trying to agree with you more than I am not. I am trying 

to make a very basic point that if we can put in place some kind 

of procedure with more regularity that doesn’t require, as in Alabama, an ad hoc decision by a Governor or a prosecutor, it would 

seem to be in the interest of the system. 

I have no idea whether Arthur did or did not do what he was 

accused of doing. There is evidence on both sides. But it would 

seem that the State does have some interest in a $2,000 test to find 

out. 

Mr. GOHMERT. Would the gentleman yield? 

Mr. DAVIS. Yes. 

Mr. GOHMERT. I would submit that this former mean, tough, lawand-order judge would be glad to co-sponsor legislation to work on 

that with you, if you were interested. 

Mr. DAVIS. Well, I appreciate the gentleman’s thoughtfulness. 

128 

Mr. GOHMERT. I might give some cover for anybody that is worried about political—— 

Mr. DAVIS. Well, I appreciate the gentleman’s thoughtfulness, 

and I have never considered him to be mean or ornery anyway. 

[Laughter.] 

Mr. SCOTT. The gentleman’s time has expired. 

The gentleman from New York? 

Mr. WEINER. Thank you, Mr. Chairman. 

The Chairman and Ranking Member asked the seminal question 

on the legislative fund, and I am going to try to endeavor with 

some questions to answer it. 

The first question was how much money is necessary. Part of the 

problem we have always had with this issue is the general reluctance of law enforcement agencies that have backlogs to do press 

releases trumpeting that fact. 

So when we originally passed the first legislation ever to fund 

DNA testing by Congress, one of the things that was included was 

a study to go and take a look. And even that study that came up 

with this number, 542,000—it didn’t say this police agency has this 

much, this one has this much, this one has this much. 

And it did comment about how reluctant some agencies were to 

talk about it. And as Mr. Neufeld’s organization knows, sometimes 

they are reluctant to even admit that they are not—that they are 

reluctant to admit it. 

You know, it is getting them to say we have got this—it is not 

something a lot of sheriffs’ departments want to talk about. 

We also learned in that study a couple of interesting things. We 

learned that in England their average start to finish, when they 

take the piece of evidence, submit it to the lab, until they get a result back is about 33 days. In the United States, it is 30 weeks. 

So that is the difference. 

And that is even assuming that you have had a law enforcement 

agency that is really fired up. They get the thing, and it doesn’t sit. 

We also have the experience of New York where we had, in the 

early—in the late 1990’s, almost a 6-year backlog, when you literally had kits sitting like shoe boxes in a vault in—several of 

them, actually, in Queens. 

Literally, each one of them had a number. It represented a 

woman—in most cases, a woman waiting for justice in their case. 

And they, to their credit, didn’t wait, got some Federal money, but 

mostly city and State money, and then went to work on trying to 

clear out the backlog, and they have done it. 

But I want to ask Mr. Hagy and—and, Mr. Marone, you can 

jump in, too—a couple of things that I am going to be offering in 

the next version of this bill that perhaps Mr. Gohmert and Mr. 

Scott would be interested in. 

And I just want you to answer as briefly as possible whether you 

think it would help improve the backlog. And these are things that 

aren’t in the current law that perhaps they should add. 

One, should we give priority to labs with demonstrated training 

and personnel needs, meaning labs that are doing their best but 

can show that they are overburdened, meaning it would incentivize 

them to say, ‘‘Here is our backlog, here is why we need it?’’ 

129 

Would it help to clear the backlog if we gave more money and 

more priority to those labs? 

Mr. HAGY. You are asking me? 

Mr. WEINER. Yes. 

Mr. HAGY. Yes, we do that. As we do our formula grant program, 

which is the largest portion of the DNA money, they actually apply. 

Mr. WEINER. Right. 

Mr. HAGY. They give us information on what they are doing. But 

I do think if—we do it by needs. It is generally a formula grant, 

but we do see a budget. 

Mr. WEINER. No, I understand, but the idea was to give your priority to those labs in the grant-making process. 

Mr. HAGY. Yes. 

Mr. WEINER. The second thing is expand the eligibility of funding 

to cover salaries for existing employees. 

You know, frankly, you are competing—you know, there are salary needs for employees that are already on the books, not just the 

need to hire new folks, meaning as salaries rise, as competition 

gets higher for technical skills, to expand eligibility for those. 

That is the second thing. Do you think that might help? 

Mr. HAGY. Salaries are something we cover as well. 

Mr. WEINER. The next thing is—but these are all things that are 

not in the present Debbie Smith Act that we would add as the next 

evolution. 

Next, add some money for grants for technology. You know, one 

of the things that is happening is bar code technology that really 

does help speed the English system—if you get that type of technology, and you get labs to invest in that, not just keeping more 

people pounding away at the same technology, do you think that 

might help with the backlog? 

Mr. HAGY. Absolutely. 

Mr. WEINER. The next is a technical thing. Under the present 

law, the Attorney General has to sign off in advance that a State 

provides post-conviction testing and biological evidence before 

States are eligible to get some grants. 

Would it not be, as a technical matter, sufficient to have that 

process going on, that approval process going on, and still let them 

ramp up with some Federal money, and worst comes to worst, you 

just say, ‘‘You don’t get next year if you don’t meet certifications?’’ 

This is something Mr. Marone might be able to comment on. 

Mr. HAGY. Yes. This year we gave an extra month—when we reformed this post-conviction in trying to improve the process, we 

gave them extra time to work on getting the actual certification. 

We go to the Attorney General, because these are State laws and 

practices they are speaking to, and they are most of the time the 

most appropriate person to gather—— 

Mr. WEINER. But a few States have said to me that it is a little 

bit of a headache that they are waiting while that A.G. process is 

going on. 

Next I want to talk to you about a couple of things, relatively 

small things, that I think would not only add to the cases that Mr. 

Neufeld has and prove experiences of victims like, unfortunately, 

Ms. Smith has. 

130 

Oughtn’t we be ramping up a little bit the sexual abuse nurse 

examiners that need to be out there, the experts that sit in hospital 

emergency rooms that are on call for police agencies, that realize 

that dealing with women who are victims of sexual assault not only 

have very important emotional needs as victims of crimes, but also 

there are specific forensic things that you need to do to collect information for those women? 

Would it not be helpful this time to ramp that up a little bit, so 

it is not just something that you find in big cities, but in small 

towns as well? 

Mr. HAGY. I can speak to how important that is, and we actually 

are with the Office on Violence Against Women at the U.N. as we 

speak, presenting a tool that we formed together. 

It is a practicum as well as a C.D. on how to do sexual assault 

forensic exams and actually improve that process, not only to help 

the victim but to lead to convictions of innocent people—I mean 

guilty people that have done these acts. 

And that is actually both our office and the Office on Violence 

Against Women presenting that tool, which is amazing, and that 

is—— 

Mr. WEINER. And let me add one other thing. 

And I appreciate the Chair letting me run a little over. 

The other thing is R&D into DNA technology. You know, we 

talked a little bit about bar codes and things like that, but you 

know, it strikes me that if we took a fraction of our R&D budget 

for some things and just put it toward trying to figure out ways to 

mechanize the system a little more—we need the next big advance. 

And frankly, the private sector is not getting incentivized to do 

it, because there is such a drip, drip, drip of dollars that people are 

putting it to getting as many tests as they can get done with the 

existing people. 

If you create an R&D fund that says to technology firms, ‘‘Go out 

and try to improve this,’’ I think that that would help a great deal. 

And if I can take one additional moment just to ask Mr. Neufeld 

about one case that captured a lot of our attention in New York, 

isn’t there also a problem of DNA and evidence of all sorts sitting 

in completely disorganized, uncategorized boxes and bins in a lot 

of places? 

You had a fairly famous case that was tragic of having to go back 

to—of a piece of evidence that you knew existed, but the police 

agency—and I am not sure—I don’t remember which one it was— 

frankly just couldn’t find it, for years and years. 

And they kept telling you, ‘‘Court order, court order, court order,’’ 

and they kept saying, ‘‘We can’t really find it.’’ 

Is there a way that we—using this popular hook of DNA, which 

everyone looks at through their own lens—say let’s also figure out 

ways either to require agencies to retain evidence better or to 

incentivize them? 

How would you recommend we do that? 

Mr. NEUFELD. The easiest way to incentivize them is the way 

that you initially wanted to do it in 2004 but then, unfortunately, 

with the end run, it don’t happen, which is to give the money to 

the States to do all this DNA testing, but simply condition it on 

two things. 

131 

One is come up with a kind of preservation procedure—the bar 

coding, for instance, that you just described a moment ago, is fantastic. 

But don’t just do it prospectively. You have got to do it with the 

10,000 items that are currently sitting in your property clerk warehouse, because if you don’t do it with those items, not only will you 

not exonerate people, but you are also depriving your cold case 

units from reopening old cases. 

So obviously, you want to incentivize that. Congress can 

incentivize that. They should do it. 

And that is why poorer States, you know, like Alabama, for instance, don’t have a preservation statute, don’t have a DNA access 

bill either, because they need the money. They need the basic 

money for infrastructure that you are describing. 

But if Congress can appropriate those kind of funds, yes, I think 

it will all happen. 

Mr. WEINER. I thank you, Mr. Chairman. 

Mr. SCOTT. Thank you. 

Mr. Marone, how often do you get cold hits? 

Mr. MARONE. Cold hits, lukewarm hits, 40 a week, 40 to 50 a 

week. 

Mr. SCOTT. And if you had—— 

Mr. MARONE. Excuse me, a month, 40 or 50 a month. 

Mr. SCOTT. If you had more of these in the database, you would 

get more cold hits. 

Mr. MARONE. We saw a significant increase as the database went 

from 100,000 to 250,000. We saw a significant increase in the number of hits. Obviously, the bigger the database you are looking at, 

the more chances you have to match things. 

Mr. SCOTT. Mr. Neufeld, are John Doe indictments helpful? 

Mr. NEUFELD. John Doe indictments are very helpful. They have 

obviously been very helpful to prosecutors, and in a good way, because you don’t have the statute of limitations problems. 

You have DNA. Obviously, if it is a rape case and it is collected 

in the right way, it is the pivotal piece of evidence. 

You do a DNA profile. You get it. You run it through CODIS. 

You don’t get a hit, but you know this is the perpetrator. You indict 

the DNA profile. And if and when you identify the person that goes 

with that profile, he can be prosecuted. 

Mr. SCOTT. How often are John Does identified? 

Mr. NEUFELD. I am sorry? 

Mr. SCOTT. Do you know how often John Does are identified? 

Mr. NEUFELD. I don’t have that information, sorry. 

Mr. SCOTT. You and the Innocence Project hear from a lot of people who claim to be innocent. What portion of the people who claim 

to be innocent do you find are actually innocent? 

Mr. NEUFELD. Well, that is a good question. In about one-third 

of our cases that we take on—we get about 3,000 requests now a 

year for post-conviction DNA testing, but it can take many years 

before we actually get to do the testing. 

In one-third of our cases, we have to close them out because the 

evidence has not been preserved in the intervening years. 

But in the cases that actually go to lab and we do the testing, 

it turns out that the DNA testing exonerates people about 50 perVerDate Aug 31 2005 09:28 Jan 06, 2009 Jkt 000000 PO 00000 Frm 00135 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\041008\41698.000 HJUD1 PsN: 41698
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cent of the time, and about 50 percent of the time it confirms their 

guilt. 

Some people might wonder why are you doing it if it confirms 

guilt 50 percent of the time. It is a good thing to confirm guilt. 

But on the other hand, if we are getting an exoneration rate of 

50 percent, that is extraordinarily high also. Who would imagine 

that 50 percent of the people who write to us, where we then locate 

the evidence and go to lab, actually end up being exonerated by the 

testing? 

Mr. SCOTT. Are there chain of custody issues? 

Mr. NEUFELD. In terms of the integrity of the evidence? 

Mr. SCOTT. Right. 

Mr. NEUFELD. In sexual assault cases, there is no real chain of 

custody issue at all, because there are internal controls that are 

part of the DNA test. 

When you are talking about the rape kits that Debbie Smith was 

talking about, for instance, the rape kits are a mixture of DNA 

from the victim and from the assailant. 

And they can actually differentiate, if you will, in these laboratories between sperm DNA and all other kinds of DNA, so first of 

all, when you find this kit 20 years later, and it could be wedged 

behind some prosecutor’s desk, the first thing you want to do is 

when you do that separation, does the non-sperm fraction match 

DNA from the reference sample taken from the victim. 

If it does, you have got the right case. If it doesn’t, you have got 

the wrong case, and that answers your question. 

Secondly, let’s look at the sperm. It is sperm DNA, okay? If it 

was me, if I was the real perpetrator, there is no way that science 

has figured out that I can get in there and somehow separate and 

extract my sperm out of that mixture and then substitute somebody else’s sperm to make it look like they did the crime. 

So those two internal controls, by its very nature, give DNA a 

kind of integrity that other types of forensic evidence simply lack. 

Mr. SCOTT. Mr. Marone, is there a problem with preservation 

and deterioration of the evidence? 

Mr. MARONE. No, sir. Once the materials have all been dried— 

and that is the key, that they are dry. And I am assuming we are 

not talking about blood tubes, but the swabs and such, slides. 

Essentially, office environment, room temperature, with a, you 

know, decent humidity—what you have to stay away from is high 

humidity, warm temperatures. 

But essentially, like what we are in here now would be certainly 

appropriate to be able to store evidence for a significant time period. 

I would like to address the one thing that Mr. Neufeld spoke 

about. One of the biggest issues we see with some of these postconviction testing is that although we might be able to get results, 

you are not getting full profiles from the crime scene samples, and 

quite often you are getting not full profiles from either the victim 

or the suspect. 

And what is problematic is going back and trying to get new good 

samples from those individuals, especially with the victims, who 

really don’t—you know, they many times don’t want to have to go 

through that all again. 

133 

So it is very problematic. It is a touchy issue to go back and talk 

to the victims of cases that are, you know, 15 years, 20 years old. 

Mr. SCOTT. Mr. Neufeld, you mentioned Alabama. Is there a 

right to post-conviction evidence now, to test the evidence? 

Mr. NEUFELD. No. We got a decision from the Ninth Circuit 

Court of Appeals 5 days ago saying there is a constitutional right 

to post-conviction DNA testing. There are three other circuits who 

share that position. There are one or two circuits who disagree. We 

will wait and see what happens. 

Mr. SCOTT. Does the Effective Death Penalty Act serve as a barrier? Because under that, you have to show clear and convincing 

evidence of innocence, which you don’t have until the test is done. 

Mr. NEUFELD. Well, the Effective Death Penalty Act has been an 

obstacle to a lot of types of post-conviction relief that people seek, 

including DNA testing. 

The hope is, in part, that the U.S. Supreme Court decision last 

year in the House, which said that there is something qualitatively 

different about DNA and other types of new evidence, will move 

Congress in the direction of removing some of those obstacles created by AEDPA and make it easier for people to get DNA testing. 

Mr. SCOTT. Mr. Marone, is there a—are there any problems in 

the conforming State-by-State what people are—the profiles? Are 

the tests done in Virginia comparable and compatible with the 

tests done in other States? 

Mr. MARONE. Absolutely, sir. There is no problem with compatibility nationwide. In fact, there are searches that are done internationally. 

Mr. SCOTT. Any problem with false negatives? If you do a test— 

if somebody claims they are innocent, if you do a test and get a result, is it possible for it to be a false negative? 

Mr. MARONE. I would never say never, but I can’t think of a particular situation where that would be applicable. 

As Mr. Neufeld said, you have an internal checks and balances 

system with the cases that you are looking at. 

Mr. SCOTT. Would there be any value to a central testing lab 

where people can send samples from across the country to a central 

lab? 

Mr. Neufeld? 

Mr. NEUFELD. You know, it is funny. Historically, there was one. 

Before all the States got money to open up their own laboratories, 

the FBI had a central repository and started doing testing in 1988, 

but quickly became overwhelmed, and the backlog was much worse 

than it is today. 

And the determination was made that by having this process localized in the States and cities, you are going to have much better 

throughput than you would if you have one central laboratory. 

Mr. MARONE. The key, sir, is to have them all working off the 

same sheet of music. 

Mr. SCOTT. The gentleman from Texas? 

Mr. GOHMERT. Thank you. 

Well, I am following up on that line. I know in our court, in my 

court back in Texas, if you feel like you have got a perpetrator— 

a prosecutor does—well, everybody is interested in getting results 

as quickly as possible. 

134 

And you know, delays of 90 days may not seem much to some, 

but if you are really wondering if this is probable cause here, then 

it means a lot of difference whether it is 90 days or 180 days. 

And so what seemed to happen there is, you know, the prosecutors would see we have got a State lab that can do this more quickly, a DPS lab, or will the FBI lab help, so I was, different cases, 

hearing from the FBI lab folks and in some other cases DPS lab 

people in Texas, whoever could get to that case the quickest. 

And so you know, after hearing so much difficulty from our witnesses putting their finger on exactly how we can get the greatest 

good done by this law, I am wondering well, are we back to saying, 

‘‘Maybe we need localized FBI labs,’’ where we can do the greatest 

good? 

And the problem with training programs, Federal dollars—well, 

you know, do these need to—Federal repository, FBI labs—do we 

need those more localized and just let those do it, if we have got 

a problem with getting people properly trained to do the work? 

So let me ask my friend from A&M, what percentage of DNA 

tests in the United States are currently being done by FBI labs, do 

you know, or DOJ labs? 

Mr. HAGY. Yes, I don’t know the answer to that. I mean, there 

is 100 and some—80—FBI labs that can enter into CODIS that are 

qualified, and then there is State labs, so I could try to work on 

an answer for you to that. I don’t know that off the top of my head. 

But just to your other concern about what really works, what we 

really look like—and back to Congressman Weiner’s point about 

technology—this high throughput technology, as well as the process 

research that we do—and we do as much as we can on the general—not only in DNA, but general forensics as a whole, can really 

have a tremendous impact on the labs’ ability to get those DNA 

samples tested. 

So we really try to start with that, those processes. Training is 

good, but you do have turnover, and you continually have to train. 

And buildings are good and all that. But I think a real focus on 

the R&D technology and those types of processes could really help 

move all of the labs. 

One other thing that—just while I have got—just a quick chance 

on the things we are talking about, any time we use money to 

incentivize behavior—which we do; I mean, that is a very important part of our grant programs—but that adds restrictions to the 

money. 

So we always have to balance what we try to do with the money 

and, obviously, getting it to the local governments and making sure 

they can do it. So we always try to balance that as a grant maker. 

Mr. GOHMERT. Well, and that brings up another issue I was concerned about. I appreciate my friend from New York actually doing 

some concrete thinking that not everybody always does, but—on 

trying to figure out what can we put in the law to make it better, 

make it work, what language? Will this work, and will this work? 

But I would only submit that what I have seen when we provide 

incentives or priorities to labs with a demonstrated need, it means 

often times they are doing a sorry job, they are taking forever, and 

throwing money at labs that have some real problems doesn’t necVerDate Aug 31 2005 09:28 Jan 06, 2009 Jkt 000000 PO 00000 Frm 00138 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\041008\41698.000 HJUD1 PsN: 41698
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essarily fix the problem, because sometimes it is the personnel and 

money is not going to fix it. 

It is just going to incentivize more bad work, whereas it seems 

to me when you find labs—maybe they are understaffed but they 

are doing good quality work, doing it in a timely manner, and 

maybe that is where we need to put some money. 

But I appreciate the efforts at trying to innovate and come up 

with places to fix this law. 

And I would make one other observation about expert testimony. 

It seems like we do have some experts that will go around, hired 

guns. What normally happens with bad experts is they are not intentionally perjuring themselves. They are just doing bad work and 

shoddy work. 

And you have got people at risk. Sometimes you find people who 

have perjured themselves. But when you find people who have 

done shoddy work and that has been shown to happen, well, as the 

U.S. Supreme Court has made clear, the judge has an obligation 

as the gatekeeper to determine whether somebody is truly an expert and should be allowed to testify. 

And we do need to have more judges that make the finding, 

‘‘This guy, you know, is a snake oil salesman. He is not going to 

testify in my court and put people at risk when he has done that 

way too freely in the past.’’ 

And I wonder about the term ‘‘false negative’’ also. I mean, do 

we have false negatives? And I am wondering if that ends up being 

like can somebody crazy know that they are really crazy. 

You know, if you have got a false negative, how do you really 

know it is a false negative. And I don’t know if there is a good way 

to know that. 

Mr. MARONE. Let me attempt to answer that. My answer would 

be I don’t think you can get a false negative, but I would never say 

never, because things happen. 

Mr. GOHMERT. How would you know if you had a false negative? 

Mr. MARONE. Well, you would have a lot of controls, and you look 

at the process. You have got positive and negative controls in the 

system. You have got reagent blanks. You have got blanks all over 

the place. 

And if you were going to find something that would come up, you 

would expect to see it in those blanks where, you know, you are 

not supposed to see anything. 

So you have got a number of controls that would—— 

Mr. GOHMERT. But a false negative is probably going to create 

a reasonable doubt once that comes into evidence, and it would 

come into evidence because that would be exculpatory evidence. 

Mr. MARONE. Well, yes, if you have a result that is not supposed 

to be there, my estimate would be you would pick that up as a 

whole process, and it would be a question on the examiner’s part 

what—they may not know what they have, but they know they 

don’t like what they have, and so probably just kind of inconclusive 

at that point with the results that you have. 

One of the things I would like to address—and it is, as you said, 

the seminal question. What is it going to take to fix this? And that 

is something that, as I said, the National Academy has been working with, and it is truly a complex issue. 

136 

I will stick with the public testimony so I don’t step on anybody’s 

toes. It is very comprehensive. You need training examiners. You 

need certification of examiners. They meet certain minimum criteria. 

You need accreditation of laboratories. Every laboratory meets a 

certain standard. And that gets to your question of are they doing 

bad work or are they just doing good work but not enough of it. 

You need educational opportunities. Start with the pool. Make 

sure the educational programs are supplying the examiners. 

You need research and support at all those levels. You need more 

training and certifying of attorneys and judges to understand scientific aspects. So you are looking at all those things. 

It is not a single, quick-fix thing. You need more facilities, more 

people and everything. So it is an extremely complex program. You 

asked us to give a top of the head in 5 minutes. 

This is an issue that people have been dealing with—if you 

looked at our report, the 1994—that folks did, it said the same 

thing as the report that was done in 1999, and the same thing of 

a report that was done 2 years ago with the forensics—what is 

called the 180-day study. And these are the issues that the National Academy of Sciences is dealing with. 

And that gives you a general direction as to where we need to 

go. There are a number of things. It is not a simple, quick fix. It 

is an overall national process. 

Mr. GOHMERT. Well, and I understand that, but just to correct 

one thing you said, I didn’t ask for an off the top of your head. 

Some of us have more off the top than others. But I didn’t ask for 

an off the top of your head in 5 minutes. 

I asked for concrete suggestions. And I also pointed out to everybody on this panel—it doesn’t stop in 5 minutes. It doesn’t stop at 

this hearing. 

If you have got suggestions, everybody up here is interested in 

fixing the law, and we would welcome your input, not just here but 

well into the future. 

Mr. SCOTT. Thank you. 

Dr. Hagy? 

Mr. HAGY. Just one comment on some of the things we have tried 

to do. We combined our capacity and casework grants to make it 

easier, make it more flexible for our grantees, so we did that last 

year when they used to be two separate grants, to make it a little 

bit easier. 

We have also extended some of our grants to allow property 

crimes, which you—talk about a growing backlog. We are going to 

have some studies coming out about the effectiveness of DNA used 

in property crimes. 

And it is going to show some tremendous results, and so we are 

also allowing—some of the bigger labs are caught up on their backlog on their violent crimes, and they are moving into that—some 

of the bigger labs. So we are doing some of that as well. 

Mr. SCOTT. Thank you. 

The gentleman’s time has expired. 

The gentleman from New York? 

Mr. WEINER. Thank you, Mr. Chairman. 

137 

Just so I understand, there are for-profit labs that are unaffiliated with the government, right, that do this work? 

Mr. HAGY. Private. 

Mr. WEINER. Have we learned any lessons? Are they better? 

Mr. MARONE. I would say they are no better, they are no worse. 

Because they have to meet the same Federal criteria that public 

labs meet, they do the similar kind of work. 

Mr. WEINER. Is it good business? Are there more people going— 

are there big companies investing in this? Are there publicly traded 

outfits that do it? 

Mr. MARONE. I found it not to be—from what I hear from those 

companies, not all that profitable to do. There is an awful lot of 

man-hour intensive type work, and because all these—or the majority of these cases are done grant-funded, they have to do it with 

very tight overhead. 

Mr. WEINER. But if you have—did you want to weigh in on this, 

Peter? 

Mr. NEUFELD. Just for 1 second on that, you know, we are also 

a user group. We go out to lots of laboratories all over the country, 

government laboratories and private sector laboratories, to do postconviction DNA testing. 

And I have to tell you, in all candor, that they are not all the 

same, that some are a lot better than others. There are some government laboratories that are better than other government laboratories, and there are some private laboratories that are great and 

other private laboratories that are awful. 

Mr. WEINER. If you had a client who came to you—and I know 

this rarely happens in your line of work—that said, ‘‘Money is no 

object, I am prepared to go out and get the best, fastest—I want 

it quickly, I want top-notch, I want the best,’’ and they wrote you 

a blank check, can you go to your Rolodex and say, ‘‘All right, I am 

going to call this lab, get it back in a couple of days, and it is going 

to be bust-out great? 

Are there labs like that? 

Mr. NEUFELD. No, unfortunately, the laboratories that we have 

found that do the best quality work have also been the slowest. 

Mr. WEINER. I guess that is not necessarily counterintuitive. I 

mean, maybe you expect it to be a little bit slow. 

Can I open up a can of worms as we end this hearing? There are 

no cops on the panel. 

Peter, maybe I can put you in the category of a civil libertarian. 

We arrest somebody for jumping the turnstile, and we now, in New 

York City, put them through the system, meaning we take their 

fingerprints and check to see if they committed any other crimes 

when they are arrested. 

Should we have arrestee—should we take DNA from arrestees? 

Does anyone have a position on that? 

And then obviously, if they are—you know, like a fingerprint— 

if you are found not to be guilty of the crime, or there is no hit on 

something else, you know, we can go ahead and destroy it. But who 

knows? Maybe we will find someone that jumped a turnstile also 

raped somebody. 

Do you have a position on that, Peter? 

138 

Mr. NEUFELD. Well, I mean, first of all, as an organization, we 

do not have a position on it. Personally, I mean, obviously, in any 

situation like this, one has to do a cost-benefit analysis. 

There is no question that if you had a universal database, if you 

had DNA testing from every Member of Congress, for instance, you 

would probably solve more crimes, okay, even though they haven’t 

been arrested, much less convicted of anything. 

That is the reality. That is just simple statistics. And no one 

would disagree with that. But for certain reasons, we choose in our 

society to exclude certain groups of people from having to give up 

that privacy right, whether they be Members of Congress, or people 

who have been arrested and are entitled to the presumption of innocence, or people who are simply stopped on the street, not even 

arrested, okay, like they are in Great Britain—if you are simply 

stopped and not even arrested, they can take your DNA sample. 

So we as a Nation will have to decide what we are willing to give 

up in order for certain benefits. That national discussion has not 

been had yet. 

Mr. WEINER. Well, to some degree, it has, because we take fingerprints when people are arrested. 

Mr. NEUFELD. Well, no, but we haven’t decided as a Nation do 

we want to have a universal DNA database. 

Mr. WEINER. No, no, but I am—— 

Mr. NEUFELD. But, Congressman, you have to do that. And the 

reason you have to do that is you put on the one side of the scale 

solving crime, and if that is your goal, and it is simply to solve 

crime, there is no question, if you have everybody’s DNA in the 

databank, you are going to solve more crime. There would be no 

disagreement in the country. 

Yet we don’t do that, so there must be certain concerns that we 

have—— 

Mr. WEINER. Well, wait a minute. Hold on a second. When you 

are arresting someone, you are trying to solve a crime. 

Mr. NEUFELD. Well, you are trying to solve—— 

Mr. WEINER. Right? So that specific task that you are pursuing 

is to solve a crime. I am not saying, ‘‘Go out and do everyone.’’ 

But right now, I guess what I am puzzled by is are we making 

a difference—a distinction where none really exists when we do 

take identifying information from someone when they are arrested, 

and then just like if they are found not to be the guy, we destroy 

it and move on—I mean, I guess I am putting you in the position 

of kind of hashing this out with me. 

But I mean, we have kind of already made the decision as a society we do want to take information when we arrest somebody. 

Mr. NEUFELD. Well, one of the concerns—and if you want, I 

would be happy to have this discussion any time and any place. 

Mr. WEINER. Right. 

Mr. NEUFELD. But I am not speaking for the organization. One 

of the problems and concerns in your State, for instance, and my 

State, New York, is that our Attorney General did a study and discovered that, in fact, people of certain races were being disproportionately singled out for stops and arrests. 

And so there is a danger that if you are simply making an arrest 

the criteria or condition for DNA testing that you will have someVerDate Aug 31 2005 09:28 Jan 06, 2009 Jkt 000000 PO 00000 Frm 00142 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\041008\41698.000 HJUD1 PsN: 41698
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thing called pretext arrests, and you will have a disproportionate 

number of black and brown people being stopped and their DNA 

ends up in the databank, whereas White people’s do not. 

Mr. WEINER. Right. 

Mr. NEUFELD. And that is why you are constantly doing that 

kind of cost-benefit analysis. I am not making it. I am not going 

to do it. We will have to have that bigger dialogue. But I don’t 

think we are going to resolve that here. 

Mr. WEINER. Here. 

Are we going to resolve it here, Mr. Scott? 

Mr. SCOTT. Well, we have had a little bit of that before, because 

there used to be a line at serious violent felonies, and Virginia 

found that most of the people for which there were hits were nonviolent crimes. 

Mr. Marone? 

Mr. MARONE. Actually, the way the statute is written, it is just 

that. It is for arrestees. 

Mr. SCOTT. Right. 

Mr. MARONE. For arrestees, it is for the serious felony crimes. In 

Virginia, that equates to about 12,000 arrestee samples per year. 

Of those 12,000, about 50 percent after a period of time are pulled 

back out, just as the congressman indicated. If it is null pros, if it 

is dismissed or whatever, pled down, those samples are pulled out. 

From 2003, with those numbers coming in over the years, there 

have been 400 hits on arrestee samples. 

Mr. SCOTT. Well, yes, but for people convicted of a felony, if you 

go to prison, everybody, regardless of the charge—— 

Mr. MARONE. Yes. 

Mr. SCOTT [continuing]. And it used to be it was only those in 

prison for the violent felonies, but then you expanded it to everybody. I am not sure exactly—— 

Mr. WEINER. Will the gentleman yield? 

I mean, look. There are five States that still don’t take it from 

all felons. And one of the questions that we have on a Federal level 

is the ability to solve a crime in Texas being hindered because people in New York make a decision to have a smaller group of arrestee samples. 

And one of the opportunities that we have with this legislation 

is to say, ‘‘Listen, if you want to be part of the database, you have 

got to make sure that we are all sharing the same types of information so that we can crack these cases.’’ 

And I think that it is true, you know, we are on the precipice 

of a much larger discussion here. Mr. Hagy is exactly right. More 

and more information—little blood specks at a burglary scene are 

being added on the crime lab side. 

So this conversation is going to be thrust upon us, in some degree, how much we grow this universe. But I think at some point 

we are going to reach a point where—you know, and I agree with 

you, Mr. Neufeld, you know, the pursuit of what are called 250’s 

in New York, must stop and frisk as a policing tool, has problems. 

But I am not saying don’t—I am not weighing in on that. I am 

saying I think there are real problems with how you do it. I am 

saying that if you are going to take certain information from 

arrestees, should you take other. 

140 

I mean, should you say to someone who is a felon, but a whitecollar felon—I mean, I, frankly, think you should. I don’t think 

since it is a—I think it is a distinction that we shouldn’t make. 

But I thank you for the extra time. 

Mr. SCOTT. Mr. Hagy? 

Mr. HAGY. I was going to say our study of these burglaries and 

these property crimes are showing much more serious criminals are 

being caught as well. It is a limited study of about five cities and 

500 cases in each city, but we are also finding that they have much 

more serious criminal records than just burglary. 

Mr. SCOTT. Thank you. 

The gentleman from Texas? 

Mr. GOHMERT. Yes, I wasn’t going to ask another question, other 

than asking that Mr. Weiner’s original question, if we could get an 

answer, because I thought it was a good question, Mr. Neufeld. 

Not asking what the Innocence Project’s position is, but as I understood him to ask originally, should we take DNA samples from 

people who are arrested? And as I got your response, it was, ‘‘We 

need to have that national debate.’’ 

But I would like to know your answer to that question. Do you 

think we should take DNA samples from anyone who is arrested? 

Understanding it would not be an answer for Innocence Project, 

but just for Peter Neufeld, with all your experience. 

Mr. NEUFELD. Yes, I have not fully thought out and resolved that 

issue, for two reasons. One is because I do think it is a much more 

complicated question, and I was trying to apprise you all of some 

of the complexities, okay, because you have to decide literally what 

is the priority—— 

Mr. GOHMERT. So your answer is you can’t answer that at this 

point. 

Mr. NEUFELD. Well, that is one. Two, okay, it is not just the philosophical issues and policy issues, but there is a fiscal issue. And 

the fiscal issue is you are talking to these folks today because they 

can’t even deal with the backlog of cases of rapes and murders, 

okay? 

And if we can’t—and I think we would all agree that the number 

one priority is getting—— 

Mr. GOHMERT. Okay, I understand that. I just didn’t know if you 

had an answer specifically to that question. 

Mr. NEUFELD. I do not. 

Mr. GOHMERT. And because it is—that answer would then—if it 

were yes, then we would be looking at a bill to try to make sure 

that there was adequate repositories. 

Mr. WEINER. Would the gentleman yield? 

Mr. GOHMERT. Sure. 

Mr. WEINER. One of the questions here is what drives what. It 

could be that as Congress or as States drive for more and more 

testing, it then creates more labs, it then creates more funding. 

And who knows what drives what here? 

And I happen to think of all the areas of the lab process that is 

most given to being mechanized and improved and speeded up, it 

is this idea, offender sample, which you have one standard for, and 

one standard swab, one standard slide. 

141 

So you are right, we would have to make that decision. I think 

this larger—it is a larger philosophical and a moral question, and 

it is one that crosses party lines, about how much information do 

you want to—it is a civil—I mean, it is a big issue. 

And then how you preserve or don’t preserve that information— 

and remember, unlike a fingerprint, you are getting a heck of a lot 

more information on that little piece of evidence. And do we want 

government having that, you know? 

And I mean, as you know, there is so much DNA around this 

room right now of Members of Congress. What a frightening laboratory this would be if it were ever opened up to the experts. 

Mr. NEUFELD. Congressman, just to give you one additional piece 

of that puzzle, which is very complicated, for instance, in New York 

there are a number of laboratories—and across the country—for instance, you have a serial murder or a serial rapist, and so the police, as part of a proper investigation, will go out and ask hundreds 

of people to consent to give biological specimens so they can be excluded as the perpetrator, which will enable the police, then, to 

refocus their investigation. 

In Florida, for instance, when they had a serial rapist, several 

thousand—and they knew the assailant was a Black man. The police approached several thousand Black men in Miami and asked 

them to give samples. They all gave samples. They all consented. 

They were all excluded. 

And eventually, the police identified and captured the real perpetrator. But those several thousand samples, DNA samples, were 

never destroyed. And the rationale was, ‘‘Hey, we got it legally. It 

is only being used for law enforcement purposes. What is the big 

deal?’’ 

Well, if you can accept that, which perhaps you do, then you can 

accept that maybe we should have a universal database so we 

wouldn’t have to have racial distinctions or other kinds of distinctions. We will just have everybody’s DNA on file. 

Mr. GOHMERT. Well, and I appreciate that. Sometimes people 

come up here to preach. I really didn’t want to ask questions—and 

I think the key is Mr. Weiner’s question. 

I am familiar with all the different sides and exactly the things 

you are pointing out. I understand the philosophical discussion. I 

can have that debate entirely by myself and have my wife come in 

and go, ‘‘Who are you talking to?’’ And she does that often. 

And so I can play both sides. But once we answer Mr. Weiner’s 

question, then we can move forward with appropriate legislation to 

deal with the issue. And that is why I was curious, as a civil libertarian, as Mr. Weiner indicated, how you felt about that. 

I have got mixed emotions. Like I say, I can debate that from 

both sides. But I just wondered where you were, and your jury is 

still out. So thank you very much. 

Mr. NEUFELD. And I debate with myself whether I am even a 

civil libertarian. 

Mr. SCOTT. Thank you. 

Let me make one further comment on Mr. Brooks’ situation, having been exonerated. Yesterday the President signed the Second 

Chance Act which gives assistance to those who have been convicted of crimes job training and other kinds of things. 

142 

The unfortunate thing is someone who has been exonerated may 

not be eligible for even those little provisions. There is legislation 

pending specifically to help exonerees. 

We are going to see if we can’t move that along so that people 

in your situation don’t get the worst of both worlds. 

So I want to thank all of our witnesses for their testimony today. 

Members may have additional written questions which we will forward to you and ask that you answer as promptly as you can so 

the answers may be made part of the record. 

Without objection, the hearing record will remain open for 1 

week for submission of additional materials. 

And without objection, the Subcommittee stands adjourned. 

[Whereupon, at 1:17 p.m., the Subcommittee was adjourned.] 

(143) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, AND CHAIRMAN, COMMITTEE ON THE

JUDICIARY

The DNA initiatives of the Justice for All Act serve three critical goals: to identify 

the guilty, to ensure that the innocent are not erroneously convicted of crimes, and 

to exonerate the wrongfully convicted. 

While Congress has funded these initiatives and much progress has been made 

to achieve these objectives, I am very concerned that so much remains to be done. 

Let me identify three major shortcomings with the present system. First, although 

the Debbie Smith Act and other legislation intended to eliminate the backlog of 

DNA samples has resulted in more than 21⁄2 million samples being registered, a significant backlog remains. 

As DNA technology has become more widely available, police departments are collecting increasingly more samples. Consequently, the backlog has remained almost 

level over the past several years, which hinders our first goal, identifying the guilty. 

The longer it takes to identify a violent offender, the greater the risk posed to 

society. The gentleman from Washington (Mr. Reichert), who headed the Green 

River Task force before coming to Congress, will likely describe how the Green River 

Killer remained at large for nearly 20 years before the Task Force, using DNA evidence, proved his guilt. It’s common sense: quicker data entry facilitates quicker 

matches of offenders to evidence collected from crime scenes, and less opportunity 

for violent criminals to remain at large undetected. 

Second, the backlog also undermines our second objective, eliminating the innocent as suspects. If police agencies cannot rely on the timely use of DNA technology, 

they waste scarce investigative resources pursuing innocent people as suspects. 

And let us not forget that, when an innocent person is accused of a crime, his 

or her life can become a nightmare. Besides the obvious threat of imprisonment, 

these individuals risk losing their jobs, and the support of family and friends. 

The backlog also undermines the third objective, to exonerate the wrongfully convicted. To date, more than 200 people in 32 States have been exonerated as a result 

of DNA testing, one of whom is with us today. Third, I am very concerned that the 

States have received none of the $7 million that Congress appropriated for post-conviction DNA testing grants under the Innocence Protection Act. 

The Justice Department advised us that a flaw in the language of the Innocence 

Protection Act was making it difficult to make the grants. So Congress passed a 

temporary clarification that the Justice Department recommended, also increasing 

the funding level to nearly $12 million. 

But no amount can do any good unless it can be put to use. So I very much look 

forward to hearing from our Justice Department witness today about whether this 

temporary change has now facilitated funding for the States. 

If the temporary change is effective, we may need to make it permanent. If it is 

not working, we must find a solution that does work and implement it as soon as 

possible. 

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