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June 13, 2000, Tuesday


LENGTH: 43295 words






JUNE 13, 2000








































HATCH: Let's begin. This is a very important hearing. I want to welcome you all to the Senate Judiciary Committee's hearing on the important issue of post-conviction DNA testing entitled, Post- Conviction DNA Testing: When is Justice Served?"
No one here today will quarrel with the assertion that post- conviction DNA testing should be made available when it serves the ends of justice. Reaching agreement on a practical definition for justice, however, is a difficult and different matter. After all, justice does mean different things to different people. For the survivors of brutal crimes, justice may mean the carrying out of a court-imposed sentence without prolonged appeals. For others, especially those who morally and vehemently oppose capital punishment, justice may mean the indefinite delay of constitutionally imposed death sentences.

As members of Congress, we do not have the luxury of choosing one side or the other. As the elected representatives of the people and as guardians of the Constitution, we have an obligation to balance the adequacy of procedural protections afforded to defendants against the need for the integrity and finality of decisions in state and federal courts. It is my hope that in holding this hearing we can take a first step towards reaching consensus on how best to strike this balance in the area of post-conviction DNA testing, and in doing so serving, of course, the cause of justice.

Speaking of doing what is just, it is only right that at the outset of this hearing I thank Senator Leahy for his interest and leadership in this important topic. Those who know Senator Leahy, as I do, appreciate his knowledge of the law, his passion for the Constitution, and his willingness to take principled positions. He was among the first members of Congress to become involved in this issue, and he came to me several weeks ago and urged this Committee to undertake an examination of this issue. His bill, the Innocence Protection Act has appropriately sparked a discussion over several important issues associated with capital punishment, and I think wee should all be thankful for his initiative and his leadership.

In the last decade, DNA testing has evolved as the most reliable forensic technique for identifying criminals when biological evidence is recovered. While DNA testing is standard in pre-trial investigations today, the issue of post-conviction DNA testing has emerged in recent years as the technology for testing has improved. In the last month, two prominent Governors, George W. Bush of Texas and James Gilmore of Virginia, ordered DNA testing for defendants on death row. The governor of Illinois put a moratorium on the death sentences being carried out.

I might say, while the exact number is subject to dispute, post- conviction DNA testing has exonerated prisoners who were convicted of crimes committed before DNA technology existed. In some of these cases, the post-conviction DNA testing that exonerated a wrongly convicted person provided evidence that led to the apprehension of the actual criminal.

Advanced DNA testing improves the just and fair implementation of the death penalty. While reasonable people can differ about capital punishment, it is indisputable that advanced DNA testing lends support and credibility to the accuracy and integrity of capital verdicts. In short, we are in a better position than ever before to ensure that only the guilty are executed. All Americans, supporters and opponents of the death penalty alike, should recognize that DNA testing provides a powerful safeguard in capital cases. We should be thankful for this amazing technological development.

I believe that post-conviction DNA testing should be allowed in any case in which the testing has the potential to exonerate the defendant of the crime.

To ensure that post-conviction DNA testing is available in appropriate cases, I along with 13 other senators, plan to introduce the Criminal Justice Integrity and Law Enforcement Assistance Act. This legislation will authorize post-conviction testing in federal cases and encourage the states, through a new DNA grant program, to authorize post-conviction testing in state cases. In addition, this legislation will provide needed resources to help states analyze DNA evidence from crime scenes and convicted offenders and conduct post- conviction testing.

The legal problem of post-conviction testing is fairly straightforward. Under current federal and state law, it is difficult to obtain post-conviction DNA testing and new trials based on the results of such testing because of time limits on introducing newly discovered evidence. These time limits are based on the fact that evidence becomes less reliable due to the passage of time.

I believe that time limits on introducing newly discovered evidence should not bar post-conviction DNA testing in appropriate cases, because DNA testing can produce accurate results on biological evidence that is more than a decade old. Under my legislation, these time limits will not prevent post-conviction DNA testing and motions for a new trial based on such testing in cases where testing has the potential to prove innocence.

Furthermore, once post-conviction DNA testing is performed, the results of such testing should be considered as newly discovered evidence under established precedents and procedures. If post- conviction testing produces exculpatory evidence, the defendant should be allowed to move for a new trial, notwithstanding the time limits on such motions applicable to other forms of newly discovered evidence. Courts should weigh a motion for a new trial based on post-conviction DNA testing results under the established precedents for motions for a new trial based on newly discovered evidence. In short, there is no need to create an additional legal procedure to consider this evidence, provided the time limits are waived in this narrow context.

In the last thirty years, America's criminal justice system has experienced the crippling impact of seemingly endless habeas corpus appeals and frivolous prison litigation. In recent years, Congress passed and President Clinton signed into law legislation to reform habeas corpus and prison litigation procedures. I am proud to have authored these landmark statutes. America is safer, and our criminal justice system is stronger because of these reforms. I am convinced that a properly drafted post-conviction testing statute will provide testing in appropriate cases and will not undermine these recent reforms.

But for some critics of our criminal justice system, post- conviction DNA testing and the resulting exoneration of some wrongly convicted persons serves as a spyhole through which one can observe a, quote, "system of law that has become far too complacent about its fairness and accuracy," unquote. We must remain vigilant in our efforts to insure integrity and fairness at all levels of the system. Yet, for some, DNA testing serves as the foot in the door through which more aggressive, and I believe unwarranted, reforms can follow, including a moratorium on the death penalty, an effective repeal of the habeas death row appeals reform of 1996, onerous federal regulations for counsel in state capital cases, and more.

Opponents of the death penalty believe the death penalty is on the defensive. They are promoting the tired arguments of the past and outdated and recycled studies in a coordinated effort to put capital punishment on trial. As Newsweek's Jonathan Alter recently opined is what the editors of the magazine called a Special Report, quote, "Assembly-line executions are making even supporters of the death penalty increasingly uneasy," unquote.

Well, assembly-line executions? That's pretty much trumpery, as far as I'm concerned. According to the Death Penalty Information Center, there are more than 3,670 convicted killers on death row in America. Since enactment of the 1996 habeas death penalty appeals reform, 315 convicted murderers have been executed. Less than 10 percent of the people on death row have had their sentences carried out.

There will likely be fewer executions this year than last year. Indeed, there were fewer executions in 1998 than there were in 1997; there were. In the meantime, no one can point to a modern case where an innocent person has been executed.

I support capital punishment, but I believe it should be uses only when, number one, there is conclusive proof of guilt; number two, the crime itself is so heinous or depraved that it warrants the ultimate sanction; and number three, there is no credible and appreciable evidence of discrimination.

It is important to remember that 99.9 percent of capital cases are state crimes, not federal crimes. In our federal republic, the issue of the death penalty in state cases is properly considered and determined by state governments. No prosecutor, attorney general or governor wants to be responsible for the execution or imprisonment of an innocent person. We will hear testimony today about the steps our states are taking to address this issue.

As we hear the testimony, let's not forget the past. For decades, convicted prisoners, with the help of some of today's witnesses, abused the habeas corpus system in order to delay the imposition of just punishment. In my home state of Utah, for example, convicted murderer William Andrews delayed the imposition of a constitutionally imposed death sentence for more than 18 years. His guilt was never in question; he was not an innocent person seeking freedom from an unjust punishment. Rather, he committed a particularly heinous crime, a series of murders, and simply wanted to frustrate the demands of justice.

What were the goals of Andrews' lawyers? I submit that his lawyers, and many lawyers who have represented death row inmates, saw their mission as making death penalty litigation so costly and protracted a prospect for the states that it would be effectively abolished. These ardent opponents of the death penalty, whose principled views and legal skills I respect, used capital resource centers and our federal courts to effectively suspend the imposition of constitutionally and factually sound state death sentences. I am loathe to once again federally empower this type of activity.

HATCH: Manufactured delays breed contempt for the law and have a profound effect of the victims of violent crime. For the families of murder victims, each delay exacerbates the pain of losing their loved one. They are reminded that their son, daughter, spouse, or parent will never come home again. No birthdays, no holidays to celebrate, only the dreaded anniversary of a murder.

So as we debate the future of capital punishment, we should also remember the past, and I respect the views of the witnesses that we have today and look forward to hearing their testimony.

So, I'll turn to the statement for the minority by Senator Leahy.

LEAHY: Thank you, Mr. Chairman.

You know, this hearing today, I hope, is going to be the first of a series of hearings that might help focus the Congress' attention on steps we can take to help solve the national crises in the administration on capital punishment. The hearing is really a first step but an important first step, not just for capital cases but for public confidence in the fairness and integrity of our criminal justice system as a whole. And in a democracy if you do not have the confidence and the integrity of the criminal justice system, it cannot operate.

As a Columbia University study published this week showed, state and federal judges have found over the past 25 years that about two- thirds of death penalty trials nationwide have been rendered unreliable by serious constitutional errors, and about five percent of the cases in which defendants were originally sentenced to death have ended in verdicts of not guilty on retrial. I said that if we had a hospital where two-thirds of the surgeries were botched, that hospital wouldn't stay open very long. But that basically what's happened in this part of our criminal justice system, and that's what worries a lot of people, because it attacks the very credibility of our criminal justice system.

The system that the study reveals is one that routinely makes grave errors, and then hopes haphazardly and belatedly to correct them years later by a mixture of state court review or federal court review and a large dose of luck. And as prosecutors, defense lawyers, a judge, and a victim of the system will testify today, we have cast- iron scientific proof that a significant number of people sentenced to death in America in the late 20th century have been absolutely, undeniably innocent.

A system that works in one case out of three is simply not good enough. And while we do not know whether it has happened yet, a system that sentences a significant number of entirely innocent people to death is bound to execute one of them sooner or later. Certainly many have wrongfully suffered, and many continue to endure years or decades in prison for crimes they did not commit.

The American people know this, and they understand the power of modern science, in the form of DNA evidence, to help prosecutors and innocent defendants alike establish the truth about guilt and innocence, and to save innocent lives. In a recent poll, more than 90 percent of Americans agreed with leaders like President Clinton, Governor Ryan of Illinois, Governor Glendening of Maryland, and Governor Bush of Texas, with conservative columnist George Will, with former Reagan Administration Department of Justice official Bruce Fein, and with the American Association of Public Health Physicians. They agree that DNA testing should be available to defendants and inmates in all cases in which it has the potential to establish guilt or innocence. The American people also know that while Illinois and New York have made DNA testing available in appropriate cases, most of the states that have the death penalty have not met that standard.

DNA testing has opened a window to give us a disturbing view of the defects of the capital punishment systems nationwide. Just as fingerprints, when available, were a major part of evidence in the 20th century, in the 21st century DNA is the fingerprint. If it is available, then it should be available in the same way in the last century we made fingerprints available. And mounting evidence suggests that the cases in which DNA evidence has proven death row inmates innocent are just the tip of an iceberg of constitutional violations and wrongful convictions in death penalty cases. Tip of the iceberg, but DNA is a good starting point.

For more than a year I have been working on these issues with prosecutors, judges, and defense counsel, with both supporters and opponents of the death penalty, and with Democrats and Republicans. At the beginning of the year, I spoke to the Senate about the breakdown in the administration of capital punishment across the country. I suggested some solutions. I noted then that for every seven people executed, one death row inmate has been shown some time after conviction to be innocent of the crime.

Since then, many more fundamental problems have come to light. I want to emphasize that DNA is not the magic answer by itself. This is not simply a case of whether DNA should be available; there's a lot more to it than that. More court-appointed defense lawyers who have slept through trials in which their clients have been convicted and sentenced to death; more cases -- 43 of the last 131 executions in Texas according to an investigation by the Chicago Tribune -- had lawyers who were disbarred, suspended or otherwise being disciplined for ethical violations. There are the people who've been appointed to represent people on trial for their lives. We have cases in which prosecutors have called for the death penalty based on the race of the victim and cases in which potentially dispositive evidence has been destroyed or withheld from death row inmates for years.

And the irony is, as every prosecutor knows, if you handle the case so poorly to begin with, then if it's sent up and remanded for a new trial five or six years later, it's almost impossible to try the case again in the same way. How much better -- and as a former prosecutor, I know this -- how much better it is to do it right the first time.

We've heard from the National Committee to Prevent Wrongful Executions, a blue-ribbon panel comprised of supporters of the death penalty, as well as opponents, Democrats and Republicans, including six former state and federal judges, a former U.S. attorney, two former state attorneys general, and a former director of the FBI. That diverse group of experts has expressed itself to be, quote, "united in its profound concern that, in recent years, and around the country, procedural safeguards and other assurances of fundamental fairness in the administration of capital punishment have been significantly diminished."

For months, I have worked with colleagues on both sides of the aisle and experts from all parts of the capital punishment system to bring about some basic common-sense reform.

The two most basic provisions of our bill would encourage governments to at least make DNA testing available in the kind of case in which it can determine guilt or innocence and at least to provide basic minimum standards for defense counsel so that capital trials have a chance of showing innocence if it is there by means of an adversarial testing of evidence. That should be the hallmark of the criminal justice system in any event. Our bill will not free the system of all human error, nothing can do that. But it will do much to eliminate errors caused by the willful blindness to the truth that our capital punishment system has exhibited all too often. That is the least we should demand of a justice system that puts people's lives at stake. If it puts people's lives at stake, we should seek as close to zero tolerance for mistakes as possible.

I am greatly encouraged that Senators Gordon Smith, Susan Collins, Russ Feingold, and Jim Jeffords, and others here in the Senate, and Representatives Ray LaHood, William Delahunt, and 45 other members of both parties in the House have joined me in sponsoring the Innocence Protection Act of 2000.

Now, last year I began urging the Chairman Hatch to join us in examining these critical issues. I regret that he has thus far chosen not to join in our bipartisan bill, but I am grateful that he has agreed to hold this first hearing, and I am hopeful that we can work together, as we have on other issues, to get common-sense legislation enacted. And, so let me just respond briefly to a couple things he said.

I agree with Chairman Hatch that reforms need to be carefully measured, and as I've argued on many occasions in the Senate, federalism is an important value in the criminal justice system. As a former prosecutor and as a former vice president of the National District Attorneys Association, I'm always eager to consult with prosecutors at the state and local level, to let the states develop their own solutions to problems, to help provide the assistance, resources, and training needed to make improvements.

And that's why we crafted the DNA provisions of the Innocence Protection Act with great care and with very close attention to the experiences of Illinois and New York, the two states that have led the way in DNA testing. That's why both the DNA and competent counsel provisions of the Innocence Protection Act work by encouraging states to meet minimum standards and giving them latitude to improve on those standards, not by imposing inflexible federal mandates.

On the other hand, I am also concerned to ensure that we enact reforms that are real and effective. We don't impose technical and legalistic barriers to DNA testing. Our bill does not require defendants to prove their innocence before they can obtain the access to DNA evidence that might prove their innocence. And that's why our bill goes beyond DNA evidence to address the more fundamental issue of ensuring that defendants have minimally competent counsel at trial.

I've been greatly heartened by the response of experts on federalism and criminal justice across the political spectrum, and if I might read just partly from a letter from Bruce Fein, a leading constitutional expert and former associate deputy attorney general in the Reagan Administration. He's bee quoted often by Chairman Hatch and others in this panel. So, while I'll submit his whole letter for the record, here's what he says: "In my view, the proposed legislation" -- referring to ours -- "raises no serious constitutional problems, respects our traditions of federalism in the field of criminal justice, and represents a measured and fact-bound response to the documented truth-finding deficiencies in death penalty and sister prosecutions, especially where DNA evidence might be conclusive on the question of innocence."

And I appreciate Mr. Fein's excellent letter, and I look forward to working with everybody else here. But I also want to thank, again, Mr. Chairman, for proceeding with the hearing. I want to thank Senator Smith, who's here, and Congressman LaHood and Congressman Delahunt. I commend Senator Feingold for his leadership on these issues and Senators Kohl and Feinstein and Schumer and you for your interest.

I have other matters I've put in the record, including a portion of Professor Liebman's report, portions of two reports by the National Institute of Justice relating to post-conviction DNA testing, a letter to me from Professor Larry Yackle of the Boston University Law School, and a letter that you and I have received from former FBI Director William Sessions. I'd ask that we might keep the record open for statements from others for maybe a few days, if we might, Mr. Chairman.

HATCH: Without objection, we'll do that.

LEAHY: And lastly, I'd just leave everybody with this thought: Don't think that simply DNA is going to be the magic bullet, because there are a lot of cases that every prosecutor and every defense attorney -- and I see a lot of heads shaking yes; they know what I'm going to say -- a lot of prosecutors, a lot of defense attorneys in this room know there are a lot of cases where there is no DNA evidence just like there are a lot of cases where there's no fingerprint evidence or there's no blood sample, there's none of the things that you might see in a television show. But we should at least guarantee that if it is available, it's available to both sides.

And, secondly, that there be competent counsel on both sides, because when we hear some of these horror stories we should ask ourselves would any one of us, if we were charged with a serious traffic case, say nothing about something where we might get the death penalty, but even with a serious traffic case, would we accept as lawyers some of the incompetent lawyers that have defended people who ended up on death row?

Thank you, Mr. Chairman.

HATCH: Thank you, Senator.

We'll start with Senator Smith as our first witness, and then we'll go through the rest of the panel.

Senator Smith.

SMITH: Good morning, Mr. Chairman. I thank you and this committee for holding this hearing on the important issue of DNA testing in our criminal justice system. I'm sure you've all noticed the many and prominent news stories about this issue and the attention it has received in recent days by presidential candidates. Clearly, post-conviction DNA testing is an idea whose time has come.

Last week, Senator Leahy and I introduced a bill that would do a number of things to improve our criminal justice system. The Leahy- Smith bill would allow prisoners in this country to have access to post-conviction DNA testing so innocent lives are not spent behind bars or waiting for execution. The bill would require competent counsel every stage of a capital case, eliminating the possibility that defendants on trial for their lives would be represented by counsel that was unqualified, underpaid, and overworked. Furthermore, to avert a double wrong, the Leahy-Smith bill would provide for fair compensation for people who have been wrongfully convicted.

I understand, Mr. Chairman, that you will introduce your bill today that would also allow for post-conviction DNA testing in certain circumstances. As I understand the title of your bill, the Criminal Justice Integrity and Law Enforcement Act, your bill, sir, would also provide funds for states to reduce the backlog of DNA tests and develop and maintain the record of DNA conviction offenders. Obviously, Senator Leahy, Senator Hatch, and myself, among others, share a common motive: Making a good system better. We should also share a common goal: producing the best legislation for our country.

SMITH: Both of these bills propose using modern genetic technology to improve our criminal justice system to protect the truly innocent. Senator Hatch's legislation goes beyond the Leahy-Smith bill to address the important issue of the current backlog of unanalyzed DNA samples. However, Leahy-Smith goes further than the Hatch bill to address other rare but real issues faced by the wrongfully accused, that of competent counsel and fair compensation for unjust incarceration.

Today you will hear from several prosecutors, including one from my own state, Josh Marquis from Oregon, who is the Oregon state director of the National District Attorneys Association and the vice president of the Oregon District Attorneys Association. I welcome their participation and their unique perspective in this discussion.

Some expressed concern that the Leahy-Smith legislation would impose burdensome obligations upon the states. They believe that the states would be counted upon to continue setting responsible standards for the definition of crime, punishment, and procedures to be followed in their courts.

In the overwhelming majority of cases, the states do things very, very well. Oregon, for instance, spends more on defense attorneys than it does on prosecution. Officer of America's courts and law enforcement work extremely hard to ensure that true perpetrators of heinous crimes are caught and convicted. However, there have been instances where defendants have been represented by incompetent counsel. There are also a number of prisoners on death row who have never had access to DNA testing during trial simply because it did not exist at that time.

My view, Mr. Chairman, is this: If you support the death penalty, you should also support every measure to make sure that the guilty, and not the innocent, are executed. It's that simple. When life is at stake no step should be considered too protracted or too onerous. Setting federal standards on access to post-conviction DNA and competent counsel are very reasonable steps to make sure that our system of criminal justice operates fairly regardless of where you live in the 50 states. If we are to have a system that is just, transparent, and defensible, we must make absolutely certain that every person who is behind bars deserves to be there. One of the best ways to do this is to make sure that the fingerprint of the 21st century is unmistakably stamped on our judicial system. We must have confidence in the integrity of justice that it will both protect the innocent and punish the guilty.

For these reasons, I urge members of the Senate Judiciary Committee, both Republican and Democrat, to work with us to produce the best possible legislation that will provide true protections to the innocent. And I thank you, Mr. Chairman and members of the committee.

HATCH: Thank you, Senator Smith.

We know that you have a busy day ahead of you, so we won't require you to stay.

SMITH: Thank you, sir.

HATCH: But we appreciate your testimony and take due notice of it.

(UNKNOWN): Mr. Chairman, I also want to thank Senator Smith, and the Leahy-Smith and LaHood and Delahunt legislation is good bipartisan legislation. I appreciate that.

And I also ask consent that a statement by Senator Levin of Michigan be added at the end of my statement.

HATCH: Without objection, we'll put it in the record.

(UNKNOWN): Thank you.

HATCH: Thank you, Senator Smith.

THURMOND: Thank you, Senator, for your statement.

SMITH: Thank you, Senator Thurmond.

HATCH: Well, let me introduce the rest of the first panel of witnesses. First, we'll have the Honorable Drew Edmondson, the attorney general of Oklahoma. He has served as attorney general of Oklahoma since 1994. We've been with you before, and we appreciate you coming and making yourself available.

Our next witness is the Honorable Elliott Spitzer -- I'm pronouncing that right, aren't I?

SPITZER: You are indeed.

HATCH: OK. That's the way I've always pronounced it; I just wanted to make sure. Elliott is the attorney general of New York. He's served as a former prosecutor and is now New York State's chief law enforcement officer. And we're very grateful that you're here today.

We're pleased to welcome Enid Camps, the deputy attorney general of California who is the legal adviser for the California Department of Justice DNA Laboratory. So, we're honored to have you here as well.

The Honorable Charles F. Baird, who is joining us as the former judge from the Texas Court of Criminal Appeals, and he is currently serving as co-chair of the Constitution Project's National Committee to Prevent Wrongful Executions. We're delighted to have you as well, and honored.

Finally, we welcome Josh Marquis, the district attorney -- am I pronouncing your name right, Marquis?

MARQUIS: Yes, sir.

HATCH: The district attorney and member of the board of directors of the National District Attorneys' Association in Astoria, Oregon.

Good morning to each of you, and welcome to the hearing on post- conviction DNA testing, and we're just delighted to have all of you here as well as the second panel, which we'll introduce after you.

General Edmondson.

EDMONDSON: Thank you, Mr. Chairman, members of the committee. I appreciate the opportunity you've given me to present testimony here today.

As Oklahoma's attorney general and a former prosecutor, I had the honor of working with Chairman Hatch and with other members of this committee on the habeas corpus reforms included in the 1996 Anti- terrorism and Effective Death Penalty Act. Some of you may recall victims and family members of victims of the Murrah Building bombing who came to Washington wearing buttons with the number 17 on them and the international "no" symbol signifying the 17 years of appeals for Roger Dale Stafford, a notorious Oklahoma murderer, and their hope that the process would not be that lengthy for whoever might be convicted of the act which so devastated Oklahoma City on April 19, 1995.

You responded to their pleas in '96, but now, I fear, only four years later, you are considering legislation which might well erase those gains and throw additional, unnecessary roadblocks into our judicial process.

Since the death penalty was re-enacted in 1976, Oklahoma has executed 27 convicted murderers, 24 since I took office in 1995. DNA testing was not an issue in any of those cases, either because there were no samples from the perpetrator left at the scene of the crime for testing or because guilt was admitted and testing unnecessary or identity of the perpetrator was not at issue or DNA testing was never requested.

There is nothing magic about DNA. DNA identifies only its donor, not the perpetrator of the crime. DNA does not tell us when it arrived at the scene of the crime. DNA does not tell us how it arrived at the scene of the crime. DNA does not tell us who else might have been present when the crime was committed.

Robert Frost said that before he would build a wall he would ask what it is he's walling in or walling out. Before we mandate a DNA test in an individual case or by legislation, we should ask ourselves what exactly do we hope to prove or disprove. The essential question should be: If this test turns out exactly the way the applicant hopes it turns out, will it show the applicant to be innocent?

In the best of cases DNA can provide compelling evidence. In most cases, however, including most murder cases, DNA testing is inapplicable, because there are no samples connected to the suspect for testing or irrelevant, because the identity of the perpetrator is not an issue. What Congress may do, if it does not proceed with caution, is establish an "Ineffective Death Penalty Act" that awards new avenues of appeal for convicted murderers, years of additional anguish for the families of their victims, and an attack on state sovereignty that is breathtaking in its scope.

Under S. 2073, the State of Oklahoma, even if it opts out of the federal grant programs, can still be forced to adopt new hearing procedures, new avenues of appeal, new standards for representation and compensation, new jury instructions in capital cases, new requirements for preservation of evidence, and new methods for convicted murderers to sue state officials, including judges.

Oklahoma enacted a DNA testing bill in this past session of the legislature. It was signed into law by Governor Keating on June 1. It gives our indigent defense system sole discretion to determine which cases to authorize for testing, priority to cases presenting the opportunity for conclusive or near conclusive proof that the person is factually innocent by reason of scientific evidence.

Oklahoma recently saw a case delayed over DNA evidence. With the execution date approaching, defense attorneys alleged in pleadings that the test results would produce substantial evidence of innocence. After being denied access to the evidence by both state and federal courts, the 10th Circuit issued a stay, without affording the state an opportunity to respond, and the case is now on hold. The defendant in that case admitted to his participation in the kidnapping, beating, burning, and murder of an 84-year old woman. His confession was corroborated by witness testimony, the fact that after the killing he went to a strip joint smelling of gasoline and gave a stripper the woman's wedding ring and the statement he gave another witness that he set the woman on fire and, quote, "watched her jump like a June bug on a hot sidewalk."

This scenario of justice delayed could be repeated over and over again with the mandates and lax standards of S. 2073.

If the federal government moves in the direction to affect forensic testing in state courts, I would urge the committee to adopt the approach being suggested by Chairman Hatch. Establish policies that encourage the states to proceed in this direction. Rather than authorizing tests whenever the results might be relevant to a theory of innocence, require a prima facie showing that identity was an issue at the original trial and that the DNA test, if the results were favorable, would establish innocence sufficiently that a reasonable jury would not convict.

Rather than threatening loss of funds that are providing vital law enforcement needs and victim services, establish a new funding source to assist states in implementing these new initiatives.

No attorney general I know, not a single prosecutor I have ever known, and certainly no judge or jury wants to be responsible for the incarceration, much less the execution, of an innocent person. However, I urge the committee not to succumb to the mantra and drumbeat of DNA by passing legislation that tramples state sovereignty, shatters the promise of the Effective Death Penalty Act, erases the progress we have made on behalf of victims, adds little to the rights of the truly innocent but adds years of appeals of the very guilty.

Thank you very much.

HATCH: Thank you, General; we appreciate it.

Mr. Spitzer.

SPITZER: Chairman Hatch, Senator Leahy, other members of the Senate Judiciary Committee, thank you for inviting me here today to address the issue of post-conviction DNA testing and how we should incorporate DNA testing more fully into the American criminal justice system.

DNA testing represents an extraordinary enhancement in our ability to solve crimes. With DNA testing, we can determine whether a particular patch of blood, a hair, or a semen sample belongs to a specific individual. This evidence can exonerate individuals or it can inculpate them; an innocent person can be freed; a guilty perpetrator found.

This is an extremely powerful tool, one that can bring greater guarantees of fairness to our judicial system. As a result, it is the responsibility of all involved -- legislators, prosecutors, defense counsel, judges -- to work together to determine the appropriate and just use of this investigative device.

We as a society have made a profound commitment to avoid punishing the innocent. This is especially important to those of us who support the death penalty in appropriate circumstances. We have determined that there are instances when the crimes are so egregious that society's ultimate punishment -- the death penalty -- may be appropriate. But the imposition of this punishment can be justified only if we make full use of all available tools to aid in the determination of guilt or innocence.

This commitment must be reflected in the choices we make about post-conviction DNA testing. It is not something to be feared, but rather to be accepted and incorporated into our criminal justice procedures and practices.

Some opponents of post-conviction DNA testing have argued that it cannot conclusively prove guilt or innocence in many cases, and therefore we should not burden ourselves with stringent requirements to provide such testing. That position ignores the remarkable power of DNA testing in those cases where identification is at issue.

DNA testing can provide evidence which is probative of guilt or innocence in many cases, and therefore can determine that individuals who have been incarcerated for years, or even are awaiting the death penalty, may be innocent of the crimes for which they were convicted. Thus, any marginal burdens are far outweighed by the ability to prevent the punishment of the innocent.

New York State has been a leader in this area, having passed legislation granting a statutory right to post-conviction DNA testing almost six years ago. Our experience demonstrates that post- conviction DNA testing can bolster the integrity of our judicial system without unduly burdening our criminal justice resources.

In 1994, the New York Legislature amended New York Criminal Procedure Law, section 440.30 to authorize trial courts to order post- conviction DNA testing in certain circumstances. This statute requires a court to grant a defendant's request for post-conviction forensic DNA testing where a court makes two determinations: First, that the specified evidence containing DNA was secured in connection with the trial resulting in the judgment; second, that if a DNA test had been conducted on such evidence and the results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant.

Although New York does not have a complete accounting of every instance in which a defendant has requested DNA testing and the outcome, our preliminary indications demonstrate that a statutory right to post-conviction DNA testing, coupled with an appropriate standard, can produce results both just and practical. In New York, the existence of DNA evidence has led to post-conviction exonerations in at least seven cases.

SPITZER: I want to reassure this committee and my state colleagues that the existence of a statutory right to post-conviction DNA testing does not mean that there will be an avalanche of testing at great cost to a state. With an appropriate standard, not all requests will be granted. In New York, for example, a request for DNA testing can only be granted if a court determines that there exists a reasonable probability that had the results, presumably favorable to defendant, been admitted at trial, the verdict would have been more favorable to the defendant. For example, in one rape case, a court ordered testing where the victim had testified that she had not had sex with anyone but the rapist on the night of the crime.

On the other hand, courts have rejected requests for testing where they have determined that there was not a reasonable probability that the verdict would have been more favorable to the defendant even with the results of a DNA test. For example, in 1996, a court rejected a testing request in a rape case where the defendant had conceded at trial that he had sex with the victim but claimed that it had been consensual. The results of DNA testing would not have altered the verdict in any way.

Thus, our experience in New York demonstrates that a statutory right to post-conviction DNA testing can result in innocent individuals being exonerated and released. And our experience in New York demonstrates that a statutory right to post-conviction DNA testing can be workable.

Although New York has been a leader in this area, and is one of only several states which have created a statutory right to post- conviction testing, our statute still could be improved. For example, CPL, section 440.30, 1(a) applies only to defendants convicted before January 1, 1996. Clearly, this does not make sense. In addition, New York does not require the reporting of all requests for such testing and therefore cannot fully evaluate whether we are adequately addressing the concerns of prosecutors, judges, victims as well as those convicted of crimes.

Also, more guidance can be provided on the practical aspects of post-conviction DNA testing such as the collection, storage and retention of crime scene evidence and related training as well as the mechanics of the testing. If we study cases in which convictions have been vacated as a result of post-conviction analysis of DNA evidence, we may learn of additional ways to improve policies or practices relating to the operation of the criminal justice system.

Notwithstanding that there are areas warranting some improvement, the New York experience demonstrates the wisdom of a statutory right to post-conviction DNA testing. Such testing offers an invaluable tool to protect the integrity of, and ultimately the public's confidence in, our criminal justice system.

While I appreciate and respect the federalism concerns raised by my colleagues in state government, DNA testing is simply too important to allow some states to offer no remedy to those incarcerated who may be innocent of the crimes for which they have been convicted. That is why I support a federal statute which requires states to adopt post- conviction testing procedures. While any such federal statute should be flexible enough to allow states to craft provisions tailored to their particular criminal and appellate procedures, it nevertheless should require that all state provisions contain some fundamental principles.

First, every state should be required to provide for post- conviction DNA testing in all cases in which such evidence would be probative of guilt or innocence; second, before testing is done, defendants should be required to make a showing, similar to New York's, that the result of the DNA tests could provide favorable evidence related to the verdict, e.g., that if the results of the tests had been admitted at trial, there exists a reasonable probability that the verdict would have been more favorable to the defendant; third, states should make such testing available at state expense to indigent defendants; fourth, states should have reasonable time limits for defendants to request testing; fifth, states should set forth standards to assure the preservation of potentially testable evidence; finally, states should make sure that the above rights are made meaningful, which means the availability of counsel, either through public defenders, appointed counsel programs, or funding for programs which represent indigent prisoners seeking post-conviction DNA testing.

Although ideally every state already would have established a right to post-conviction DNA testing, unfortunately that is not the case. Where, as here, fundamental human rights are at issue, an unjust punishment has been imposed, and sufficient time has passed without comprehensive state action, it is certainly appropriate for the Congress to step in and establish minimum protections that all states must adopt. Our history is replete with instances of such necessary and appropriate federal action. Congress did so in the 1960s when it passed civil rights laws abolishing discriminatory practices throughout the country, and it should do so again here. I can think of no cause more worthy of your attention and action.

Thank you very much.

HATCH: Thank you, General.

I would put a statement by Governor Pataki into the record at this point. He's asked me to do so, and I think it will help clarify the record. But we appreciate your testimony.

Ms. Camps, we'll turn to you.

CAMPS: Thank you. Mr. Chairman, Senator Hatch, Senator Leahy ...

HATCH: If you could pull that mike just a little bit closer, I think it would help all of us.

CAMPS: Mr. Chairman, Senator Hatch, Senator Leahy, members of the committee, and a special greeting to Senator Feinstein from our home state, my name is Enid Camps, and I am a deputy attorney general for the state of California and an office coordinator on DNA issues. It's my honor to be here today on behalf of Attorney General Bill Lockyer.

California law enforcement has long-recognized the importance of DNA evidence in solving the most serious sex and violent crimes, where the victims are disproportionately women and children.

Clearly, post-conviction ...

(UNKNOWN): Mr. Chairman, could she still pull that mike a little closer?

HATCH: If you could pull that quite a bit closer, because it is a little harder to hear. In fact, even a little bit closer than that. I know it's a little bit hard to do, but it ...

(UNKNOWN): Almost touch it.


CAMPS: Clearly, post-conviction ...

HATCH: That's better.

CAMPS: ... DNA testing is an important forensic tool, as well. To date, attention has been focused on the concept of post-conviction DNA testing and the need for it. But as you know, this is only part of the equation. We believe the national dialogue now should move on to include the specifics of cost, of implementation, and a practical assessment of how this can best be accomplished. Fair and reasonable access to post-conviction DNA testing must be established in a manner that does not compromise the integrity of our criminal justice system or undermine it financially.

We thank you for the opportunity to further the national discussion on this complex subject. We are vitally interested in the DNA testing bills before you. We have just cause for concern. The impact of any new remedy for inmates falls disproportionately upon our state. We have the largest number of prisoners in the U.S., and our state lab resources are overburdened particularly with our DNA backlog of 115,000 samples, second largest in the nation.

Attorney General Lockyer and his staff have reviewed Senator Leahy's bill, and look forward to studying Senator Hatch's bill. We appreciate that both bills seek to enhance the accuracy and confidence in the administration of our laws. This is a very important goal. Our concern about the Leahy bill, however, is because it has no meaningful filter for distinguishing baseless from potentially meritorious claims. It reads more like a discovery statute for a case that has never been to trial. Conspicuously absent is any plain language the DNA evidence would be dispositive of a material question of identity or demonstrate actual innocence.

Another problem is a broad provision ...

(UNKNOWN): Ms. Camps, turn the microphone -- there you go.

CAMPS: Another problem is a broad provision allowing a trial court to resentence even a guilty defendant in any manner based simply upon favorable results. Defense counsel typically argue that an inconclusive result is significant or favorable to the case. Under the Leahy bill, we foresee a rush, therefore, not to prove actual innocence but to establish the inconclusive result which is arguably enough to open the door to a trial court's discretionary reevaluation of the defendant's entire cause.

Other issues raised by the Leahy bill include: What is the impact of the defendant's own failure to test the available DNA evidence split prior to trial, or reveal the results of his own confirmatory testing by various techniques, and should a defendant be permitted to retest with each different technology even if that test does not have a significantly better power of discrimination? Moreover, I cannot imagine having to explain to the many victims of serial crime in my cases that their assailants will have yet another day in court.

In People v. Wallace, the defendant, known as the "flex-tie" rapist for the way he bound his victims, was convicted of 48 felony counts for a series of rape and kidnapping crimes committed against 11 victims from July 1988 through April 1989. DNA RFLP testing performed in 1990 linked the defendant to some of these crimes, which the appellate court found were undeniably perpetrated by the same person. In addition, several victims identified the defendant; he was found in possession of the same brand of flex-ties as recovered from the victims, as well as duct tape and lubricant used in his crimes; and he confessed. With respect to the DNA RFLP evidence, the prosecution expert -- a member of both the NRC I and II committees -- found a match between the crime scene samples and defendant's sample, even though the FBI lab which analyzed the evidence testified to an inconclusive result. The expert explained that the FBI has a very broad inconclusive category, and the extra bands on the case autorads were technical artifacts which were extraneous to the genetic typing result. The Court of Appeal specifically found even excluding the DNA analysis, the evidence of defendant's guilt was overwhelming.

It is possible under the Leahy bill this defendant could obtain post-conviction testing by new DNA techniques, even though the DNA evidence would not undermine confidence in the verdict. In our opinion, that it too low a threshold.

We also respectfully find the Leahy bill cost estimates to be vastly understated. The bill sets forth that the cost of testing samples is about $2,000 to $5,000 per case. In reality, the total costs will be much greater. In addition to the cost of testing possibly thousands of samples each year in California, other costs to consider include leasing additional storage space for case evidence, even bulky items such as cars, blankets, and bathrobes, and building freezer space to preserve the evidence. Though it is difficult to make cost projections, we conservatively estimate the price of building and maintaining freezer space to preserve evidence for 100,000 cases would be at least $7.2 million to build new facilities, with yearly energy costs of about $1.2 million to sustain the facilities plus the cost of leasing the space.

In our opinion, the huge resource allocation that Senator Leahy's bill would require at the post-conviction phase is the wrong way to go. A fair and reasonable DNA testing program will permit our emphasis where it should be: Getting convictions right in the first place. For this reason, expanding the national Data Bank Program and funding to eliminate the DNA Data Bank backlog is critical, and we appreciate the Hatch's bill attention to these matters.

Further delay in our criminal casework caused by a broad mandate to retest evidence not only undermines our ability to complete pending casework, but it also imperils the right of persons wrongly accused by crimes, like Mr. Raul Zamudio who had his house burned down by community members who thought he was responsible for a series of sexual assaults and murders in their small town and who spent over 75 days in jail until DNA revealed his innocence and identified Mr. Marlow as the perpetrator.

Finally, in our opinion, the broad access to post-conviction DNA testing provided in the Leahy bill does not best serve the rights of the wrongly convicted persons the bill is designed to protect. If the Leahy bill passes, the truly innocent will find their claims further frustrated and delayed as they face courts clogged with meritless claims.

In our opinion, the best approach would provide fair access to testing for the wrongly convicted, while respecting the finality of convictions, and the basic tenets of our criminal justice system.

Thank you.

HATCH: Thank you so much.

Judge Baird, we'll turn to you.

BAIRD: Good morning, Chairman Hatch and Senator Leahy and members of the committee. My name is Charlie Baird. I presently serve as co-chair of the National Committee to Prevent Wrongful Executions. Because the committee has not yet crafted its recommendations, I speak not for the committee as a whole but as a member of the committee and as one who has years of direct experience with the Texas criminal justice system.

I am a former judge on the Texas Court of Criminal Appeals, the highest criminal court in Texas. I served on that court for eight years. In that time, I participated in more than 400 capital punishment appeals, and I reviewed numerous rifts of habeas corpus from capital defendants and literally thousands of petitions and rifts from non-capital cases. In that judicial capacity, I authored many opinions which affirmed the conviction and sentence of death. I voted for many more opinions which did the same thing, and many of those defendants have in fact been executed.

Prior to my service on the court, I practiced law in Houston, Texas. In total, I have more than 20 years of direct experience of working in the Texas criminal justice system.

The criminal justice system can be improved markedly with the passage of the Leahy-Smith-Collins bill. Please permit me to tell you why I feel confident in making that statement.

First, the legislation makes DNA testing available in cases where it is not presently available. This is very important because DNA can often determine the ultimate question in any criminal trial -- the guilt or innocence of the accused.

In Texas and around the country, several inmates on death row or in prison have been exonerated through the marvel of DNA testing. Those innocent individuals were destined to a life of confinement or to be executed for crimes they did not commit. They now have their freedom - that is the gift of DNA.

However, as we know in Texas, oftentimes conclusive DNA testing which exonerates the defendant is not enough. In this instance, I speak of an inmate named Roy Criner. Mr. Criner was charged with the rape and murder of a 16-year-old girl. The state's theory of prosecution was that Mr. Criner was the sole perpetrator of this offense. Crucial to the state's theory of prosecution was evidence that the semen found in the victim was consistent with Mr. Criner's blood type. The jury convicted Mr. Criner and assessed his punishment at 99 years in prison.

When Mr. Criner's case came before the court of criminal appeals, I voted to affirm the conviction and sentence. It is important to note that Mr. Criner's trial occurred in 1990, before DNA testing was considered scientifically sound and acceptable in most courts.

BAIRD: As technology improved and DNA became more accepted, Mr. Criner sought and eventually obtained permission to have the semen genetically tested. Mr. Criner's family paid for that testing. That test exonerated Mr. Criner.

When the district attorney reviewed the results he was skeptical and insisted on his own test. That test was conducted by the Texas Department of Public Safety. That test, the second test, also exonerated Mr. Criner.

The trial court then conducted a hearing where both test results were admitted into evidence. Following that hearing, the trial court recommended that the Texas Court of Criminal Appeals, my former court, order a new trial for Mr. Criner. However, six members of the Court of Criminal Appeals voted to deny Mr. Criner a new trial. Their reasoning was twisted, contorted, and confused. Although I and two other judges dissented, we could not carry the day.

So today, as I appear before you, senators, in Texas we have a man incarcerated for the remainder of his life who has two DNA evidence tests which conclusively establish his innocence.

While Mr. Criner has no remedy in Texas, the Leahy-Smith-Collins bill would encourage states to provide a remedy. Moreover, the legislation would provide a federal remedy for state inmates if their particular states did not offer a remedy. The result is that under the Leahy-Smith-Collins legislation, all inmates who are able to prove their innocence through DNA testing can gain their freedom.

Mr. Criner is not the only Texas inmate who has been exonerated. Kevin Byrd was convicted of rape in 1985. He was exonerated in 1997 when DNA evidence conclusively established his innocence. Even though Mr. Byrd spent 12 years in prison, because of DNA testing he is now a free man.

A. B. Butler has also gained his freedom through DNA testing. He was convicted of rape in 1983 and served 17 years in prison for a crime he did not commit. While DNA cannot give Mr. Butler back those 17 years, DNA did secure his freedom.

The criminal justice system should embrace DNA testing, because it has the potential of eliminating human error and conclusively establishing the guilt or innocence of the accused. Where DNA is involved, the legislation must have two vital components: First, it must permit access to the evidence. For this evidence to be accessible, it must be preserved, and the defendant must have the ability to subject that evidence to testing.

In Texas, there is no right to post-trial DNA testing. It is left totally to the discretion of the trial judges. In Texas, there is no duty to preserve the evidence for later DNA testing. Indeed, the evidence is routinely destroyed. In fact, after Kevin Byrd was exonerated by DNA testing, the state secured orders for the destruction of 50 rape kits in 50 separate cases where the defendants are still incarcerated. Because this is permissible in Texas, those defendants will never have an opportunity to prove their innocence.

Secondly, the courts must be open to receive this evidence. Too often, procedural bars prevent this evidence from being considered. The doors of our courts must always be open to consider cases where a person deprived of his liberty can prove his innocence.

While we all recognize that DNA evidence can transform the human frailties of the criminal justice system to the certainty of science, we must also recognize that DNA is not present in every case. And in these cases, the criminal justice system must operate as designed -- to reach a correct result through the adversary system of two attorneys competing mightily before an impartial judge and jury.

However, far too often, the adversary system breaks down, and because the defense attorney is not experienced, not competent or in some cases not even awake, the verdicts from trials for these types of defense representations occurs, are not reliable, and work only to undermine and destroy confidence in the judicial system. This legislation is especially important because it would establish national standards for the representation of capital defendants. Establishing this national standard would guarantee that those who are charged with capital crimes will be effectively represented before society extracts the ultimate punishment.

This legislation is necessary, because many states do not have statewide guidelines for the qualifications of counsel, and some states, like Texas, leave it totally up to the trial judges to determine counsel's level of competence. Therefore, in Texas where there are 700 separate judges, each judge operates under his or her own definition of competent counsel.

This legislation would ensure that every indigent defendant, regardless of the locality of his alleged offense would receive qualified, experienced, and competent counsel. This legislation fulfills the guarantees of the 6th Amendment to effective assistance of counsel to all indigents accused of a capital crime.

The reforms I urge you to adopt will benefit victims as well as criminal defendants. No one, and least of all victims, wants the agony of retrials because of incompetent lawyers who make mistakes, who fail to present all the evidence, and who otherwise fail to make the system truly adversarial. No one wants a system that convicts the wrong person and lets the real perpetrator walk the streets, free to victimize again.

Thank you very much.

HATCH: Thank you, Mr. Baird.

Mr. Marquis.

MARQUIS: Thank you, Chairman Hatch, Senator Leahy, and honorable members of the committee. I appreciate the opportunity to come here and speak to you today.

My name is Joshua Marquis, and I'm the elected district attorney in Clatsop County. That's where the Columbia River meets the Pacific at the end of the Lewis and Clark Trail. And like General Edmondson, I'm a democrat. I remember meeting Senator Leahy when I was a delegate at the Democratic Convention in '96, and he shared some of this experiences as a prosecutor in Vermont. And I want to commend Senator Leahy for bringing this important issue up.

Now, I'm no scientific expert on DNA, and I bring a different perspective than many of your other witnesses. I'm a working prosecutor who's argued successfully for the death penalty in one case, chosen not to seek it in many others, and I've even been a defense attorney in which I've successfully kept my clients off death row. I'm the person who has to make the decision whether to seek the death penalty in my office, and I'm the person who has to make the decision not to. So, this is not an academic or esoteric discussion for me.

And from that perspective, I commend you for bringing this issue to the front. But I believe that language is absolutely essential when we're talking about something that's important, and that's the reason I strongly urge you to consider Senator Hatch's bill and the language of his bill.

Senator Smith recently said back in our home state that he wants to make a good system nearly perfect, and I think that was an appropriate and laudable statement, but I think the words are very important -- near perfect. Because no human endeavor is without any possibility of error, and if we're going to demand 100 percent perfection, as some death penalty opponents have suggested, we literally are going to have to abolish not only the death penalty but all long terms of imprisonment. Any of you who have arrived or will depart from this hearing by commercial airliner are probably taking a greater risk of death than we are of wrongfully executing an innocent person.

There are some proponents of 2073 who barely hide...

(UNKNOWN): Are we doing anything about that?

MARQUIS: We can, and I know Senator Wyden and Congressman Fazio have some ideas on the Transportation Committee.

There are some proponents of 2073 who barely hide their agenda to basically abolish the death penalty, ignoring the almost 70 percent consistently of Americans who support the concept of capital punishment. These abolitionists, again, demand 100 percent perfection. A study recently orchestrated by an anti-death penalty group was released yesterday by a PR firm here in Washington, D.C., which makes the counterintuitive claim that the high degree of reversals means that the system is flawed is so much that it's unreliable. That's a completely counterintuitive argument, which would also argue that you shouldn't get into a car that has an airbag or a seat belt, because obviously something with those kind of devices in it is much too dangerous to ride around in.

There's a concerted campaign in this country to shift the debate about capital punishment from a legitimate issue about the morality of the death penalty to framing the question, as I'm sure Mr. Scheck will very ably do, well, OK, maybe you're for the death penalty, but surely you're not for executing innocent people. And that's sort of like putting together a commission, frankly, to prevent kicking small children across the floor with steel-toed boots. No one's for that.

Let me speak specifically to the DNA testing bills. I'm a member of the National DAs Association Board of Directors. I'm not speaking for that board. We haven't had a chance to meet since these proposals have come in, but I know that prosecutors across this country support reasonable legislation that ensures the integrity of the process. The concept behind Senator Leahy's bill has value, but it's drafted so broadly and has so few standards that it would create a useless tidal wave of litigation from bored and guilty criminals who simply demand DNA testing whenever there is a possibility it will reveal relevant evidence. And I would cite the committee to the standard that's used in the Supreme Court decision in Herrera v. Collins where they talked about a truly persuasive demonstrations of actual innocence. I mean there's very much a difference there. I think Senator Hatch's proposal would fix that problem.

Without that fix, let me give you a very concrete example. I'm about to retry for the fourth time a man who murdered two people in central Oregon. The defendant has never claimed actual innocence. The state of Oregon has paid probably close to $2 million to defend this man. He was represented by competent and indigent lawyers. Without the Hatch bill definitions this man could come back into court a fifth time and claim that his nine previous appellate and trial lawyers didn't know what they were talking about and that because we have a bunch of items, like a TV set that has blood on it that we've been keeping in a storage locker for 13 years since these people were murdered, and say, "Aha, I've heard that there's another inmate in prison, and he actually did it, and he told me he left his blood at the scene. And I demand that you get out that TV set, and you test it for DNA." Oh, you haven't preserved that test? Some clever defense attorney will get up and say, "That prosecutor has deliberately destroyed that information," and that person will get at minimum a new trial or might get free, and I'm going to have to tell those victims to come back for a fifth time for trial. I don't know if I can do that.

DNA can be a marvelous science. As early as 1983 the English used it in Narborough, England where a 15-year old girl named Lynda Mann was murdered. And constables went out and decided to DNA test every single male adult in the community. And they, after four years and unfortunately another murder, caught a man appropriately Colin Pitchfork in 1987. But it's important to remember that even in those cases when DNA is overwhelming, such as the O.J. Simpson case, skillful defense attorneys can convince juries to simply disregard the scientific evidence.

In some cases, like stranger-to-stranger cases that have been described by some of the other witnesses, DNA evidence can be dispositive, but there's many, many murders in which it is not. A classic domestic violence murder, it won't really answer any questions. I've handled about two dozens homicide cases. In only one was DNA an issue, and it was helpful, but it was not dispositive.

The idea of allowing modern technology to convict the guilty and free the innocent is already under widespread use. Although existing DNA labs already have a serious backlog, the Justice Department has estimated that there are about 350,000 DNA samples awaiting testing. The DNA resources in our nation are already taxed beyond their abilities.

The actual innocent may find themselves at the very end of a long list if we make the list too large. Senator Hatch's bill allocates money to strengthen those resources, and I know that Senator Feingold and I think Senator Dewine have sponsored a bill, the Codas (ph) bill, to help fund DNA testing, and I applaud that.

One of the witnesses you'll hear from in a few minutes is Barry Scheck, a very skilled defense attorney. In an Op Ed piece last week, he painted a picture of a justice system where eyewitnesses can't be trusted, the cops lie, prosecutors fabricate, and defense attorneys are incompetent. I don't believe we live in that country. Mr. Scheck has correctly pointed out that DNA cannot only exonerate, it can also convict. And I look forward to the day when people like him bring their considerable legal talents to the bear to aid some small town, underfunded prosecutor who needs to use DNA to convict a killer.

Let's remember who we're trying to protect -- the innocent -- and let's use that word carefully. We mean people that didn't do it. And let's never forget the hundreds of thousands of murder victims that we have to answer to, all of us, in the criminal justice system.

Thank you very much, Senator.

HATCH: Thank you.

I think all of you have been excellent. I've really appreciated this, and of course along with Senator Leahy and others on this committee, I believe we have to resolve these problems in a way that is best under the circumstances. And that's why we file these bills so that we can have all kinds of comment and criticism, and then we get together and see what we can do to resolve the problems. And there's no question there is some distinct differences between the two bills, but nevertheless both are well-intentioned, and both hopefully will help solve some of these very serious problems in our society.

Now, Mr. Edmondson, you described the case of Loyd Winford Lafevers who confessed to and was twice convicted of the brutal kidnapping, beating and murder, burning of an elderly woman. In addition, Lafevers testimony was corroborated by witness testimony. His execution was recently postponed to allow for post-conviction DNA testing even though there's absolutely no doubt about his guilt. Now, why not -- let me just ask you this question -- why not give federal judges wide latitude to consider motions for post-conviction DNA testing? Is there a danger in providing too much discretion in authorizing post-conviction testing?

EDMONDSON: The danger from the standpoint of the...

THURMOND: Mr. Chairman, pardon me for the interruption. I've got to leave, and I'd like to ask that my statement follow that of the ranking member of the committee.

HATCH: Well, I will be happy to put that in the record, without objection. Thank you, Senator Thurmond; we appreciate you being here.

HATCH: Mr. Edmondson?

EDMONDSON: The danger that the state recognizes in that kind of scenario is simply the open ended extension of the appellate process and the lack of finality to the appellate process.

In the case that you mentioned, the Lafevers case, it is particularly egregious because it's retrial in 1993 where Lafevers was again given the death penalty, DNA testing was discussed by defense counsel, and they chose not to have DNA testing done. And it was only on the eve of execution that they decided at that hour that DNA would be relevant. The state objected on the grounds that it could not possibly, under any circumstances, regardless of whose blood was on the pants that they wanted tested, show Lafevers' innocent under any theory. Notwithstanding that, the order was entered, the stay was placed, and that case is on hold indefinitely.

HATCH: I see.

Ms. Camps, do you believe that a post-conviction testing statute should require a prisoner to make an initial showing that testing has the potential to prove innocence in order to obtain testing? And if so, why?

CAMPS: I think that's really a critical component of the bill, because it's really the appropriate standard that we're looking for in determining access to post-conviction DNA testing; not whether there should be access, but that standard for it, without an assertion of actual innocence, without identity being an issue, the DNA evidence is not always material to the case. And, so that could be an enormous problem for us if there is a wide open standard which is based merely on relevancy such as the Leahy bill, because relevancy, no matter how weak the evidence may be, if it tends to prove at issue to the jury, it might be considered evidence that could be admitted under the Leahy bill.

HATCH: Well, thank you.

Mr. Spitzer, General Spitzer, you stated under the New York statute post-conviction testing is allowed only, quote, "upon the court's determination that if a DNA test had been conducted on such evidence and if the results had been admitted in the trial resulting in a judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant," unquote. Now, interpreting this statute, the New York court, in People v. Tukes (ph), ruled that, quote, "The legislature intended that DNA testing be ordered only upon a court's threshold determination that testing results carry a reasonable potential for exculpation," unquote.

Now, my legislation is based on the New York statute in key respects. Both allow post-conviction DNA testing only in cases where testing has the potential for exculpation. Now, do you believe that it is appropriate to require the post-conviction testing have some potential for exoneration or should testing be required in any case where it, quote, "may," unquote, produce relevant exculpatory evidence? Do you share any of Mr. Edmondson and Ms. Camps concerns about requiring testing in unnecessary cases?

SPITZER: I think anybody who speaks and is mindful of the budgetary implications for any governmental entity obviously shares their concerns. The question is are they outweighed by the larger concerns that militate in favor of the Leahy bill. And without adopting specifically the language that is in the Leahy bill, I think that clearly there's a divergence between what I view is the excessively high threshold that you have set for the prima facie showing that would be necessary to get the testing versus any absence of standards at all.

I think what we are seeking is to balance these concerns and ensure -- and this is what this statute is all about -- ensure that we will permit access and will permit testing to be done where -- and I think the New York statute is rightfully phrased -- there's a reasonable probability that the verdict would have been more favorable to the defendant. There's nothing magical about that phrase, and I have testified that it has worked.

I think that Senator Leahy has tried to craft a standard that perhaps has a slightly lower threshold. I think that I would, in this context, err on the side of a lower threshold rather than a higher threshold. I've heard the testimony of my colleagues, individual cases where of course the system might be abused. That is not dispositive testimony in my view. What we are looking for is those cases where we need to guarantee access to testing to permit defendants to prove in and obtain the exculpatory evidence. I think the New York statute has worked. I do not think it's magical, but I would certainly err on the side of a lower threshold rather than a higher one, and I prefer the Leahy statute.

HATCH: Well, I think my legislation contains a fair and reasonable standard for testing. To obtain post-conviction testing, the defendant must prove or must make a, quote, "prima facie," unquote, showing that, one, identity of the perpetrator was an issue at trial, and two, DNA testing would, assuming exculpatory results, establish the defendant's innocence of the crime. Now, prima facie showing in my opinion is a lenient requirement. In 1977, the Seventh Circuit defined the term "prima facie showing" in the federal criminal code. The court defined prima facie showing as, quote, "simply a sufficient showing of possible merit to warrant a fuller exploration by the district court," unquote. In other words, the legislation that I've filed requires a showing that post-conviction testing has the potential to prove innocence. Now, this is consistent with and I think arguably more lenient than the Illinois, New York, and Arizona post-conviction DNA statute.

SPITZER: Well, we do not feel that it is more lenient, certainly more lenient...

HATCH: If I could look at it, because I think that's the case.

SPITZER: Well, I know -- I've heard you say so. I respectfully disagree with you. I think there are also instances where innocence, per se, may not be an issue where there would be factors relevant to sentencing, certainly in the capital context where it would be important to permit testing even if somebody's presence at a crime scene was not the only factor where DNA testing would nonetheless shed light on the nature of the crime, what happened.

So, I think there are several elements in the prima facie standard that you've put together here, and I admire your bill, and I think it is an enormous step forward. And the notion of federal guidelines is something that I fully support despite the federalism concerns my colleagues have raised. Nonetheless, when it comes to crafting the particular standard that is in your bill, I think, again, there are pieces there that I would, with all due respect, disagree with.

HATCH: Thank you. My time's up. I'll submit the rest of my questions in writing. I'm sorry I didn't get to ask -- could I just take one or two questions? I'd like to get one for each one of them. But I'd like to kind of limit us to the five minutes, if I can.

But let me just ask each of you a question. Mr. Marquis, there has been reports in the media recently about fully funded indigent criminal defense lawyers. I'm concerned about that too. Are you aware that the federal government, through the Administrative Office of the Court, spends approximately $20 million per year in payments to criminal defense lawyers to represent sate death row inmates just in federal habeas appeals? As a prosecutor from a rural county, do you always have greater resources in the criminal defendants that you prosecute?

MARQUIS: No. Actually, Senator, it's the exact opposite. As I say, I've prosecuted probably three capital cases and 12 or 13 non- capital murders. I've been outspent at minimum of 10 to 100 to 1 by indigent defense in the state of Oregon.

I don't object to that. I think that if you're going to put somebody on trial for their life, you ought to give them good defense. But I think this idea that across the United States these are drunk, sleeping lawyers is a myth. I just don't think it's true.

HATCH: Well, thank you.

Mr. Baird, just one question to you, and then I'll submit the rest of my questions, because I don't want to impose on my colleagues' time. Mr. Baird, you described the Criner case in detail. Clearly, Mr. Criner would be able to obtain testing under the standards in my legislation, and he would be able to move for a new trial based on the testing results notwithstanding the time limits based on such motions. The question really is for you, Mr. Marquis and Mr. Edmondson: How should courts consider DNA testing results if post-conviction testing produces exculpatory evidence?

BAIRD: How should they consider it?


BAIRD: I think that in the Criner case, for example, the trial court there, a very prudent man, conducted a hearing where all of the evidence was admitted into evidence, and then the trial judge made specific findings of facts and conclusions of law and submitted those to the Court of Criminal Appeals which had jurisdiction to review those findings. And I think that we ought to, typically, defer heavily to the trial judge who makes those findings, and if those findings are favorable to the accused, not hesitate to grant a new trial.

HATCH: Mr. Marquis?

MARQUIS: I'm concerned sometimes about -- because many judges are under a tremendous amount of pressure not to be reversed. And as we can see from this study, they get reversed all the time. And I would go back to something that General Spitzer said that I think really concerns me, and it deals with actual innocence. He's talking about retesting not simply to determine if people didn't do it, but if it would be helpful during the sentencing proceeding. And I think we need to focus on actual innocence.

HATCH: Let me just ask you just one additional on that point. Should courts examine post-conviction testing results under the established procedure for considering a new trial provided the time limits are waived or is a new procedure needed?

MARQUIS: I think the existing procedures, as long as your bill went into effect, would give trial courts the ability to make that decision.

HATCH: OK. General Edmondson?

EDMONDSON: I think it goes back to the question of focus on what it is the DNA evidence purports to prove. If all it does is provide additional evidence that might have been interesting to a jury, then I would object to causing a new trial based upon that. If it does in fact establish factual innocence, then certainly, consistent with the law passed in Oklahoma, consistent with our policy prior to that law, it ought to result in a new trial, if not an immediate agreed order of dismissal without a new trial. I certainly can't comment on the Texas case, because I'm not familiar with it. I don't know what the thinking was, but in a case where there may have been multiple perpetrators the fact that the result does not match this particular defendant is not necessarily exonerating.

HATCH: Were there multiple perpetrators? I gathered that there was not.

BAIRD: The entire theory -- I'm sorry.

HATCH: I took it that there were not multiple perpetrators.

BAIRD: The entire state's theory was that Mr. Criner was the sole perpetrator, that he deposited the semen found in the victim, and that that semen did in fact match blood...

HATCH: And then two DNA testings showed that it wasn't his.

BAIRD: Yes, sir.

HATCH: That's outrageous to me. I mean I think either of our bills would resolve that, and hopefully we'll get the best bill out of the committee that we possibly can. And all of your testimony has been very helpful here today.

Let me just say under my bill if post-conviction testing produces exculpatory evidence, the defendant is permitted or allowed to move for a new trial based on newly discovered evidence, notwithstanding any previous time limits, statutory time limits, on newly discovered -- excuse me, on such motions. Now, my legislation directs courts to consider a new trial motion based on post-conviction testing results under established judicial precedence, at least that's what we believe.

By contrast, other proposals seem to create a new procedure in which courts must grant a hearing and are authorized to do so to give any order that serves the interest of justice -- any order. Now, that seems exceptionally broad to me, and I'm very concerned about it, because what I don't want to do, the whole purpose of that '96 bill, the Effective Death Penalty -- the Anti-Terrorism Effective Death Penalty bill, was to end the charade of just multiple, frivolous appeals that literally kept judgment from being executed for years and years and years.

Now, I can't blame criminal defense lawyers who hate the death penalty for utilizing every aspect of the law to try and keep their people from -- their clients from being executed. On the other hand, the law is the law, and it was a matter of great concern to us, so we passed that bill, and it has worked, I think pretty well. Now, there are critics, of course, but generally they are critics who just don't like to have a finality of judgment.

But be that as it may, I'll submit the rest of my questions. I apologize for taking two or three minutes more, and I'll turn to Senator Leahy, and I'll give you whatever time you need.

I turn to the ranking member...

LEAHY: Thank you.

HATCH: ... who really has been instrumental in bringing this to the forefront, and of course all of us are concerned about it on this committee. And I think everybody on this committee is aware of and concerned about these problems. And I think this committee in the end will do a very good job in resolving them. And I think your testimony in this case has been very, very helpful to us.

LEAHY: Mr. Chairman, a lot of people have brought it to the attention. I mean the editorials in the Washington Times in favor of this, Columnist George Will in favor of this, Pat Robertson in favor of this, Bruce Fein in favor of this, as well as the New York Times and the Washington Post. These people also bring it to attention.

Judge Baird, I think Chairman Hatch may have left the wrong impression of what his legislation does, inadvertently. But you had testified you supported Governor Bush's decision to grant a reprieve to Ricky McGinn so DNA tests could be performed. Now, as I understand it, the new test could not establish the innocence of the crime he was convicted for. What they might do is establish whether he was eligible, because of the facts of the case, for the death penalty under Texas law. Now, Chairman Hatch's bill would not allow DNA testing for that purpose, the purpose of whether he'd be eligible for the death penalty or not. Is that your understanding?

BAIRD: I understand basically that. I understand that there could be, perhaps, a possible total exoneration. But I certainly understand that there could be an exoneration of the rape which was the aggravating element that raised the murder to capital murder for which he received the death penalty.

LEAHY: So, I mean it's not going to ever acquit him of the murder, but may acquit him of the aggravating death penalty imposing activity.

BAIRD: That's right, Senator. And without that activity, then of course he's not death eligible and would not be on death row.

LEAHY: I would note that Chairman Hatch's bill would not allow DNA testing for this purpose, but I agree with you, and I agree with Governor Bush.

HATCH: My bill would.

LEAHY: Now, Mr. Marquis, I find fascinating some of your testimony, being outspent 100 to 1 by assigned counsel when you have police officers and technicians and those who hold evidence and all that. Then they must be spending literally millions of dollars on those cases and defense attorneys. As a prosecutor, I often found myself outspent but never at 100 to 1. You may want to talk to your legislature about this.

MARQUIS: I do talk about it.

LEAHY: I also looked at your testimony about a person flying on an airplane faces a higher chance of death than a person on death row. The report yesterday, the most comprehensive study on death penalty cases ever done, shows that 68 percent of capital convictions suffered from serious, reversible error. Frankly, if I thought a plane had a two in three chance of crashing, I would not fly on that airplane.

Now, Ms. Camps, in your written testimony, you say that the...

HATCH: Can he answer that?

LEAHY: Well, that's just -- I was just making an observation.

HATCH: But I mean I think he ought to be able to answer.

LEAHY: Well, no, I'm just going by his testimony, Mr. Chairman. He says he's outspent 100 to 1. I say I would hope that they might be able to get...

HATCH: But I'm talking about the two-thirds -- I'm talking about the 68 percent.

LEAHY: We'll go back to that in just a moment, if we could.

Ms. Camps, in your written testimony, you say the Leahy-Smith- Collins bill requires law enforcement to preserve all biological evidence throughout a person's entire period of incarceration. That's not so. And my bill permits the government to destroy biological evidence while a person remains incarcerated so long as it notifies the person of its intention to destroy the evidence and affords the person 90 days to request DNA testing. Do you think that 90-notice of the destruction of biological evidence is going to impose undue costs on the state of California?

CAMPS: Well, with all due respect, Senator Leahy, what we anticipate are form responses from the defense community asking us to preserve the evidence, and basically then the bill would absolutely mandate that we're going to preserve the evidence for the entire period of incarceration until we resolve the question about whether that evidence is going to be relevant to the...

LEAHY: So, the 90 days requiring DNA testing would impose an undue cost on the state of California?

CAMPS: The actual preservation of evidence throughout a person's entire period of incarceration would impose a significant burden upon us.

LEAHY: Well, let me ask you this: California, according to a Columbia University study, spends about, on their cases, about $1 million for a killer sentenced to life without parole. It's between $4 and $5 million if they get capital punishment. Now, of course California has the absolute right to spend $3 or $4 million more to seek the death penalty than to have life without parole, but with that extra $3 to $4 million is it your testimony that the DNA -- the very limited and very specific DNA testing in my bill, something that may save an innocent person from execution is placing an undue cost burden on the state of California?

CAMPS: We have to look at it in terms of our total resources for using DNA evidence at trial and our resources for analyzing samples as well, our laboratory resources for examining the DNA evidence. And, so in that context, in the context of what it costs us to actually perhaps retest all available case evidence, we do see that as a significant burden, and we're hopeful that a more appropriate standard that would limit the availability...

LEAHY: But even though the $3 to $4 million extra that it costs to execute somebody over the cost of life without parole, even with that extra cost already borne by the state of California, additional costs of DNA testing could be too much.

CAMPS: It's not the additional cost of a test in any particular case. It's the additional cost of the entire infrastructure of the system proposed by the bill for the preservation of evidence.

LEAHY: I just thought you were a wealthier state. I appreciate that.

Judge Baird, this week the Chicago Tribune reported that of the last 132 executions in Texas, 43 have been of defendants who were represented at trial by counsel who've been disbarred, suspended or disciplined for ethical violations. Has Texas changed their record that's led to that kind of a disturbing record?

BAIRD: I cannot sit here today with any confidence and tell you that Texas has in fact changed. That's what I liked about your legislation was the recognition that DNA is not the silver bullet in all these cases, that what you've got to have in these other cases is adequate, effective, competent counsel. And the problem in Texas is there is no guideline for this competency standard, and therefore it's kind of left to each individual trial judge to set that. And I think we'd be better off if we had some type of federal standard as proposed in your legislation.

LEAHY: Now, General Spitzer, you heard Ms. Camps talk about how this would impose a financial burden or pose a burden on the state of California. You've testified New York has had legislation similar to the Leahy-Smith-Collins provision on DNA testing for a number of years. Has the cost of providing access to DNA testing been prohibitive?

SPITZER: No, I certainly do not think so, and I'm not sure that I accept the purely utilitarian calculus that some of my colleagues are suggesting either. I think your point is well taken that what we are aspiring to here is a degree of certainty and assurance of correctness in our criminal justice system that defies the calculus of is it worth $5 or $100, and I think that the incremental costs relating storage of samples simply should not be the determinative factor.

And with respect to your notice provision, my understanding and expectation would be that if in fact a notice were sent out that the state intended to destroy certain biological samples, perhaps we would get a form response back from the defendants requesting that it be restored, but then we could shift the burden back to make the prima facie showing to establish whatever needed to be shown to justify the test.

So, I think that there are creative ways and reasonably simple ways to overcome that problem that confront both the cost of storage which will permit the state no longer to become a storage bin for all old evidence but also to aspire, not to necessarily reach certainty, but to aspire to the certainty that your statute reaches for.

LEAHY: Well, under New York's post-conviction DNA statue -- and obviously I studied that and Illinois a great deal as we were trying to put together, because you have a track record -- as I understand it, the defendant can enforce his right to get DNA testing through the courts, and I followed that in my legislation. Now, under Chairman Hatch's proposal, there is no enforcement method. I just wonder about the New York approach. Has it resulted in undue litigation?

SPITZER: No, it has not, and I think it has worked out very well. Judge exercise their discretion as they always do appropriately, and I think the track record is one that suggests that in fact we could replicate that standard nationally without any undue burden to our judicial system.

LEAHY: And, General Edmondson, we're going to be hearing today from Dennis Fritz. He spent 12 years in prison in Oklahoma, in prison for a crime that it later determined he did not commit. And that was thanks to DNA testing. Now, the state opposed having that DNA testing for years. All of a sudden he's locked up, he's asking for DNA testing, the state says no. He and his codefendant, Ron Williamson, were finally released from prison last year; in fact, Williamson had come within less than a week of being executed. Fortunately, he wasn't. Now, would you agree that legislation that helps people like Fritz and Williamson get DNA testing that proves their innocence may well be responding to a real problem?

EDMONDSON: I would certainly agree that the legislation that Oklahoma passed this year would have been very useful to Mr. Fritz at the time of his appeal. The codefendant, Mr. Williamson, who was on death row -- and by the way, this image of his being within days of being executed, the common practice prior to the Effective Death Penalty Act when one state of the appeal was over and nothing happened on the defense side, the state would ask for an execution date to get the appeal off high center. By asking for an execution date, we would then give a deadline to the defense to file their next round of appeals.

In Mr. Williamson's case, his post-conviction relief had been denied by the Supreme Court and no action had been taken to initiate federal habeas. Because of that, the state filed an application for an execution date which was granted by the court. Everyone knew that the defense was going to file a petition for writ of habeas corpus, and the execution date would be stayed. If Mr. Williamson suffered distress over that, it was because his attorney didn't share that fact with him.

LEAHY: Well, General, just so we don't put too fine a point on this, if you're Dennis Fritz and you're Ron Williamson and you're on death row, even though you may have other appeals coming up, if you know you're innocent, you know if there's DNA testing that you're being denied of that might prove your innocence, isn't it reasonable to assume there might be a tad bit of stress on the part of the person who's there just figuring that his life is in the hands of lawyers who may or may not do this right or a system which may or may not allow him to have his evidence, and he may well end up being executed?

EDMONDSON: I know, Senator, that I would start suffering stress the day I walked into the prison...

LEAHY: I would think so.

EDMONDSON: ... and it would continue. Williamson was reversed and sent back for a new trial on incompetence of counsel. In preparation for a new trial, the state asked for DNA testing. As a result of the DNA testing, the state and defense jointly moved to dismiss the charges against Williamson and Fritz. Again, we do not want to be in the business of incarcerating much less executing innocent people.

LEAHY: Now, I've had discussions with your governor; in fact, he and I were on one of the Sunday talk shows recently about this and expressed similar views.

I'll submit my other questions for the record, Mr. Chairman.

HATCH: Thank you, Senator Leahy.

We'll turn to Senator Grassley.

If we could limit ourselves to five minutes, I appreciate it, but I certainly want to have as many questions as we can asked. But we also can submit questions, and I hope that all of you will immediately respond to help the committee to understand this better so that we don't foul it up.

GRASSLEY: Mr. Marquis, I would like to start out with asking you to respond to a study that Senator Leahy brought up to Professor Liebman's study. Is this really a new study? Does it show that these prisoners were actually innocent?

MARQUIS: No and no, Senator Grassley. It's a recycled study. Professor Liebman is a prominent criminal defense lawyer as well as being a professor at Columbia. His sample, for some reason, goes from 1973 to '95; the death penalty wasn't reinstated until 1976, and he seems to have a very odd form of mathematics, because he apparently counts -- if the same case is reversed two or three times, that counts as more reversals. It has nothing to do with whether or not the people are factually guilty or actually innocent. It has to do with the idea that if we use, as Justice Powell says, super due process in capital cases, which I believe we must, that we're going to have a high appeal rate -- a reversal rate. I think the acknowledged reversal rate in the country is about 33 percent.

And I note with, I can't help, amusement Professor Liebman's study, by their standards, the very best states are Texas and Virginia, which have the most executions, and I'll suspect that some of your witnesses who oppose the death penalty are not going to hold up Texas and Virginia as paragons of death penalty systems.

GRASSLEY: Thank you very much.

Prior to asking a couple questions, I want to make this point, not related to what you said, and that is to get ready for this hearing I asked some questions in my office of some people from the FBI about the ability to do the sort of requirements that these bills might require. And there are evidently a few over 100 crime labs that do DNA testing. And they are pretty busy with what they have right now for cases pending and requests for tests right now. The point being that if we're going to have a backlog of cases of people who are on death row having DNA testing, that there's going to have to have considerable resources put into it if we don't get further backlogged.

GRASSLEY: I don't make this point to say that we should not consider legislation like this to know that only guilty are put to death, but with the idea that we need to make sure that we put the resources into it that are there or understand that there's going to be further backlog someplace else along the road. So, I want to make that point, and if there's any disagreement on that point, I'd ask anybody to check me on it.

I want to start with you, Ms. Camps. You stated that DNA testing programs should not undermine the criminal justice system from a financial point of view. Could you elaborate on the potential cost to the criminal justice system if Congress forces states to establish post-conviction DNA testing?

CAMPS: Well, there are -- we've had considerable -- it's difficult to estimate exactly what the cost of the bill would be of this magnitude, and we are worried about the impact of it. And we have several matters that figure into the cost of the bill, including the cost of taking reference samples from the defendant, the cost of the investigator time to look at and review the evidence, the cost of the district attorney time to review the case, the cost of the trial and appellate courts to review the decision.

There is an enormous new burden on the criminal justice system as a whole for a program that would have a broad mandate to sort of retest all available evidence. We look at the Leahy bill more as a test first, ask questions later approach, and we want the approach that asks the questions first and only tests in appropriate cases in order to limit the expense.

GRASSLEY: Are you making a point that such requirements required by this legislation without the resources being put to it are effectively a moratorium then on death penalty -- the use of the death penalty?

CAMPS: Well, we think that to the extent that the bill permits multiple testing, and it certainly wouldn't prohibit it, it could certainly be used as a stalling tactic for defendants to ask for first an STR test, then a mitocondrial DNA test, then a polymarker test, and so that would -- that is a factor in considering what would be appropriate legislation and what would be the effect of permitting multiple testing requests.

GRASSLEY: OK. Now I want to ask Mr. Baird, and I'm asking you to respond to Ms. Camps' suggestion that she made in her testimony, and if I don't characterize your suggestion correctly, then correct me, please. But, Mr. Baird, this is the suggestion that the Leahy bill doesn't adequately distinguish between requests for DNA testing based on arguments with merit and arguments without merit.

BAIRD: Senator, I'm just -- I don't follow that line of reasoning. After reading Senator Leahy's bill, I understand that the defendant has got to show that testing would create a reasonable probability that he was erroneously convicted. That seems to me a fairly high threshold in standard before which he would even be entitled to this testing.

GRASSLEY: OK. Then maybe I should ask Ms. Camps then to respond to your response about her.

CAMPS: I would like to respond to that, because we read Senator Leahy's bill very differently; that it is has a contrast with both the Illinois and the New York language that is very significant. The language that says "may produce non-cumulative, exculpatory evidence relevant to a claim" is very different from a statute that requires identity be at issue and an actual assertion of innocence and that the evidence would be materially relevant to the defendant's request. And the key words that are missing there are "material" and "innocence," and so to the extent that the Illinois statute is supposed to be a paradigm for the Leahy bill, we don't see it, nor do we see it from the New York statute, and that's why we believe that the New York experience would not be directly relevant.

The New York statute has a cut-off that applies to cases before 1996, and the reasonable probability that a verdict would have been more favorable to the defendant. Now, that same reasonable probability language does not appear in the Leahy bill, and that is a term of art to us in the related law of the materiality of undisclosed evidence and in ineffective assistance of counsel cases, and it means probability sufficient to undermine the confidence in the outcome of the verdict. And, so to us that is a very different standard than "may produce relevant evidence," because the relevant may not even be to a disputed fact.

GRASSLEY: OK, my time's up, and I'll submit the rest of my questions for a response in writing.

HATCH: Thank you, Senator Grassley.

We'll turn to Senator Biden.

BIDEN: Thank you, Mr. Chairman, and thank you for holding this hearing.

You and I have been here a long time. I've been here 28 years, and I hope we get it right this time, because this pendulum keeps swinging back and forth. You've got those who want to hang them high and those who suggest no one should be hung, figuratively speaking. And we've gone through this exercise.

I predict to you that if we don't take some corrective action, the American public is going to shift its opinion markedly as it's beginning to do -- down from 90 percent favoring the death penalty to 60 percent. And when I first got here only 40-some percent of the American people supported the death penalty. By the time it became clear that the average person sentenced to death in the state served only -- excuse me, committing a capital offense served on average only seven years in prison, there was a cry the other way. And, so this pendulum swings back and forth in a way that is not healthy, not only for the criminal defendant but for the justice system.

And I should say at the front end of this thing the first federal death penalty after it's declared unconstitutional that was constitutional was a bill written by me in 1988 and the Biden Crime bill, which is the Crime Control Act of '94 had the death penalty at a federal level. I support the death penalty. Let me put it this way: I don't oppose the death penalty on moral grounds, but I have been fastidious in arguing that along the lines Senator Smith did if you're going to have a death penalty, you better go out of your way to make sure you don't execute an innocent person.

I want to remind everybody of the chronology here, at least at the federal level. The '88 Act passed in '91. I asked for the study that is now finally the one we're now talking about. I'm the guy that asked for that study when I was chairman of this committee that's just been released. And then what we did we passed the -- then my friends, the chairman and others, became obsessed as others -- obsessed, wrong word -- became very focused on habeas corpus, which I thought should have stayed the way it was and was not being abused. And to the extent that it was abused, it was a small price for society to pay to make sure an innocent person didn't get wrongfully convicted and put to death. And then we went through a big fight over that.

I introduced, and I'm going to ask to submit for the record, the Habeas Corpus Reform Act of -- my act, mine was defeated. It was referred to as the -- the short title was the act may be cited as the Habeas Corpus Reform Act of 1993, and I'd like to ask unanimous consent that pages -- sections C8 Provision of Counsel, be reprinted in the record at this point, if I may, Mr. Chairman.

HATCH: Without objection.

BIDEN: And what all of you end up saying at some point along the line here is we should get it right the first time, and we hardly ever get it right in terms of criminal defense counsel. Nobody, nobody, nobody, nobody I know can look me in the eye and tell me that they think that there's adequate criminal defense counsel in capital cases. It may happen, but when it happens it's an accident. It's an accident as much as it is a certainty.

And, so what I don't understand is why we don't write back into the law standards. We have the right federally, notwithstanding your sacred state rights, to impose upon, to upon impose upon you all minimum counsel standards in death penalty cases in federal habeas corpus. And I don't understand why we don't do that. If in fact we had those in place, and I will not take the time to read them now, 85 percent of the cases we're talking about wouldn't even be in the game. You wouldn't have to worry, Mr. Spitzer -- and I know you and I are on the same side of this thing -- you wouldn't have to worry about preserving all that evidence, because you would have had a counsel smart enough to ask for its presentation at the front end, and if it was not -- if it was being withheld, you would have a counsel smarter in the appeals process to be able to move on it. And, so I mean we don't have adequate counsel.

I've tried those cases. My friend always talks about his days as a prosecutor; we're in agreement. I was a public defender. You want to know whether you're a good trial lawyer, be a public defender. We have no one on our side. You win when you're a public defender -- you ain't got the FBI, you ain't got the state troopers, you don't have any investigators, you don't have nothing, as they say. I've been on the other end of this defending these cases, and the truth of the matter is one of the first cases I tried my motion was my client was being represented by incompetent counsel -- me. I had been -- I challenge any one of you to one year, one month out of law school, being admitted to the bar, being assigned a capital case. You all think you're competent enough to handle that case? Mr. Marquis, do you think you would have been?

MARQUIS: No, absolutely not.

BIDEN: You know darn well you wouldn't have been. Look who we assign to these cases. Nobody makes money on these cases unless you represent an O.J. or somebody like that. That doesn't happen. So, what happens? We take the people either who have no clients because they're incompetent or we assign people who are brand new and may become competent. Death penalty appeals are complicated.

Now, I'm going to -- I can see the light; the warning light is on -- I'm inclined to support a call for an absolute moratorium on the death penalty. My problem is -- and I want to congratulate Senator Feingold for leading on this effort here. My problem with the Feingold legislation is that there is a requirement that the United States Congress has to act affirmatively or negatively on a recommendation of a commission. I think that's bad public policy for us to force ourselves to do that. I don't think we should set a commission up and then be locked into what they do unless we affirmatively act. But I agree with the ABA in calling for a moratorium on the death penalty.

My only admonition to you all as you focus on this is that hopefully this is just the first of many hearings here. We've got to get this right. We've got to get this right. And there is not adequate counsel now made available in death cases. It does not exist. There should be a minimum standard that we have. And as you point out in Texas, Mr. Baird, how many judges are there out there? I don't know how many in Texas; big state.

BAIRD: Seven hundred.

BIDEN: If each of them makes a judgment as to whether or not counsel is adequate, I think we have one heck of a lousy standard out there, and there's no level playing field in that score.

Now, this stuff does cost money, and I'm going to say something that maybe will cost me at home, but I believe my constituents who probably support the death penalty by a majority, more than the majority, I believe they're willing to spend money to make sure we get it right, to make sure we get it right. And, so my only comment, Mr. President, is -- or Mr. Chairman, is that at the federal level, since the two acts I referenced, which I authored both of them, since that occurred, there have been a total of 18 people sentenced and now pending on appeal. There are three waiting retrial, 32 sentenced to less than death, 10 acquitted, 24 requests for death penalty was withdrawn by the federal government, prosecution discontinued in 62 cases, committed suicide or died in the meantime, three, and awaiting or on trial for capital charges, 44, for a total of 196 death penalty cases brought federally since then. You all kill more people than that in Texas or almost that many people -- 131 -- over the period of time that this was in place.

I really think this is something that we should try to take -- and I'm not suggesting any of you have done this -- we should try to take the politics out of this. We should try to point out, as Senator Grassley did, that the study we're about to hear does not suggest that those seven and 10 errors were errors relating to innocence. That's the implication. Those who don't like the death penalty are there out saying, "You know what this means, this study that I asked for in '91, this means that seven out of 10 people were convicted of death, and they're innocent." Not true; that's not what it says.

BIDEN: But I hope the rest of you admit that it does mean some of these folks were innocent, flat out innocent. And no one -- you can't prove the negative. How many people have been executed who were innocent? Would any of you be willing to bet -- a rhetorical question; I'll yield the floor after it -- would any of you be willing to bet -- you say, "Lord, here's the deal: I'm going to make a guess now. If I'm wrong, I don't get to heaven. I'll bet you, Lord, nobody in the state system in the last 10 years have been executed who was innocent." Any of you ready to make that one? Bet your entry? I'm not suggesting we get -- pardon me?

MARQUIS: Can I answer that?

BIDEN: Sure.

MARQUIS: I think it goes back to...

BIDEN: You must be an atheist if you're ready.


MARQUIS: No, just confident in my goodness, Senator. It goes back to Senator Leahy's comment about my comparison with airplanes. The airline that I fly on, which I won't name but I'm very fond of and I fly all the time, has lost 270 people who are dead as a result of various things. You have a number of very skilled witnesses, in Mr. Scheck in particular, who will come up here, and I'm a very concrete thinker. I don't think they're going to be able to tell you about one single human being that is dead who should not have been since capital punishment was reinstated. So, when you compare that kind of risk analysis, you're right, Senator, if we're looking for absolute perfection, we're never going to find it.

BIDEN: Well, old concrete thinker, let me put it to you this way: We sit on a different -- if I sat on a different committee, the Commerce Committee, and those 219 people, or whoever, who died in the air who fly with your airline, we hopefully went an investigate whether those airlines had the proper maintenance checks. Since those people died, I'll lay you eight to five we put in new rules. We've increased the probability it won't happen again, because we require maintenance records be checked a different way. Old concrete thinker, you wouldn't have done that. You would have sat here, based on what you tell me, and said we're not going to do anything.

Leahy's not asking for perfection. Leahy's saying, OK, 219 were killed, to keep this crazy metaphor going -- 219 were killed. All I'm saying is maybe we should go back and look at the way we check the maintenance records. The maintenance records aren't being kept accurately enough, and so what I want to do is pass a new federal law saying you've got to check the plane once a week instead of once a year. That's all we're saying here. He's not asking for perfection.

What we're asking for is what is a rational standard for us to apply to increase within the probability of what reasonable people would look to, the likelihood that an innocent person will not die? The DNA? You may be right about which bill is better -- Leahy, New York, Illinois -- that's arguable. But I hope the hell no one's arguing that DNA should not be a tool used and be able to be used more than it has been now, more than courts have allowed it now, more than we have applied it now.

And in terms of competent counsel, I hope none of you are going to argue, because I think you're probably buried in concrete if you are, intellectually, argue that, "No, I don't have a problem -- on balance, I believe in death penalty cases there's competent counsel." Do you believe that?

MARQUIS: In my state, but I can't speak for the others.

BIDEN: You know others. What's your gut tell you? You're ready to comment on DNA on the rest of the states.

MARQUIS: No, I'm able to talk about the state where I've practiced and where I've both defended capital cases and prosecuted them.

BIDEN: And you're confident in your state the standard of threshold for a counsel is sufficient.

MARQUIS: You have to be death qualified; you have to have previously tried a murder case; you have to have two lawyers; you have to have practiced essentially for about 10 years.

BIDEN: Good idea. Do you think that would be a good standard federally?

MARQUIS: Absolutely.

BIDEN: All right. You just answered the question.

MARQUIS: Are you going to pay for it?

BIDEN: Now, it doesn't exist in other states.

I thank you. I yield the floor.

HATCH: Senator Feinstein.

FEINSTEIN: Thank you, Mr. Chairman.

I think Senator Biden has made a good point; that there should be some national standard of competency for counsel in death penalty cases. I think it is absolutely egregious to have people represented by a counsel if that counsel is drunk, if that counsel is not qualified to try a death penalty case. And maybe, more than anything, what all of this shows is that time has come, and we need to do it.

Now, to both of these bills -- and let me say I am on the horns of a dilemma as to which bill I believe is preferable -- it is my understanding that both Hatch and Leahy would allow DNA testing for any prisoner where there is biological evidence, and the test can be met regarding relevance. However, the Hatch bill requires that DNA testing was not available at the time of trial. The Leahy bill simply requires that some advancements in testing have been made. So, Hatch effectively limits testing to pre-1996 cases, and provides an incentive that the testing be done at the time of the trial. Whereas Leahy, as I understand it, allows testing even for future cases or at any time. So, as I see it, those are the parameters between the two bills.

Now, of the testimony we have just heard, I'm most concerned, obviously, with the state of California. First of all, there are 164,000 plus people in state prison. There's a backlog of 115,000 DNA cases, as I gather. The testimony of Ms. Camps, in essence, said something about unfunded mandate in terms of federal law prescribing and not paying for additional costs. And, so I want to ask Ms. Camps a little bit more about her specific concerns.

You mentioned, and I'm using your written statement now, "Our difficulty with the Leahy bill is its open-ended mandate, which essentially preserve and retest virtually all available case evidence," which I believe is a fair interpretation of what the bill does. It provides no meaningful filter for distinguishing baseless from meritorious claims. It does not have an evidentiary nexus between innocence and the DNA test required. It allows a trial court to resentence a defendant in any manner it sees fit simply based on favorable results. And it points out that it is ambiguous in several respects and has not timeliness requirements and no stated prohibition on multiple DNA testing requests.

As I look at what California is saying, then essentially what you're saying is it's kind of open season. Anyone can request a test at any time or any number of times, and I take it you see that then as an undue burden placed on the states by the federal government. Is that correct, or if not, would you state exactly how you do see it?

CAMPS: It does present a considerable burden, and the problem with the burden is that we only have certain laboratory resources to conduct testing on our DNA evidence. And, so if we experience a large volume of post-conviction DNA testing requests that we cannot handle, what we will have is a system where we postpone our pending casework, where we're not analyzing unsolved evidence samples that will solve suspectless crime, and we're not processing our DNA databank samples.

Now, DNA databanks are really the most significant crime-solving tool since fingerprints, and I can tell you that I am sickened by the preventable tragedies in my cases, the serial rapes and murders in our towns, but I'm inspired by law enforcement's ability to do something about this in the form of DNA databank crime solving. And so the opportunity to stop the criminal defendant early in his criminal career before he has victimized numerous people is so significant and so substantial to us that we have to concentrate most of our resources -- well, we certainly cannot detract from the resources that we give to DNA databank testing in order to accommodate other burdens on the DNA testing system here, because we have -- our crime statistics in California show that the average violent sex offender commits -- begins his criminal career at the age of 18 and commits eight more offenses. If we can stop that recidivist offender after crime number two instead of crime number eight, that is a real significant savings in terms of lives. And to the extent that we are detracting from our ability to test those samples and address our backlog, we are perhaps taking a step backwards rather than a step forward.

FEINSTEIN: Let me stop you here. Are you saying...

HATCH: Would the senator just yield for a clarification...


HATCH: ... because I think the senator is under a misapprehension and maybe Ms. Camps can clean it up. This is a key question that Senator Feinstein has raised. If post-conviction DNA testing could show that a prisoner was innocent, could such a prisoner under my bill obtain testing under the standards in my legislation? In other words, does my legislation provide a sufficient mechanism for obtaining post-conviction DNA testing or are they foreclosed, because the attorney, the dumb attorney didn't move for DNA testing?

CAMPS: No, we believe that the Hatch bill standard is appropriately stated, because it's narrowly tailored to the situation where DNA evidence...

HATCH: So, nobody's going to be denied DNA testing under the Hatch bill.

CAMPS: We don't believe so, no.

HATCH: I don't either. The fact is, is that there have been improvements in DNA testing, and that alone allows for further examination under DNA, under my bill.

So, you're wrong on that conclusion, Senator. I just wanted to clarify that. If you can make it even more clear...

FEINSTEIN: I appreciate that. So, you're saying it is not limited to pre-1996 cases.

HATCH: Not at all. Anybody will be able -- anybody who meets the standards of the bill, which are reasonable standards, will be able to get DNA testing and use that in court for a motion for a new trial.

LEAHY: Accept that Mr. Fritz -- under your bill, Orrin, Mr. Fritz, who's going to testify later, would not have had DNA available under...

HATCH: He certainly would.

LEAHY: No, he would not.

HATCH: Yes, he would, because DNA testing has been refined, and it has been improved.

LEAHY: Well, we'll let Mr. Fritz testify.

HATCH: Well, he doesn't know. I mean, my gosh, Ms. Camps knows. Am I right on that, Ms. Camps?

CAMPS: Yes, I mean the wording in the bill was not subject to DNA testing requested because the technology for such testing was not available at the time of trial.

HATCH: That's right. The technology's been improved.

CAMPS: And, so actually that's fairly wide open standard for testing there, because availability might be equated with general acceptance, which in California actually has not taken place until recently.

FEINSTEIN: Supposing it was available and the counsel didn't ask for it or there wasn't DNA testing at the time of the trial, that individual should still have the ability, if biological evidence would show innocence, to -- and was present -- to ask for a test, right?

CAMPS: I think that under the Hatch bill he would...

HATCH: That's right.

CAMPS: ... be able...

LEAHY: That's not what it says; that's not what it says.

HATCH: It is what it says.

LEAHY: They may not have had DNA testing. They may have retained all the blood samples and everything else but not had DNA testing at that time. But they now do have DNA testing. And the way your bill is worded, Mr. Chairman, it would not have been available. That's all I'm pointing out.

CAMPS: There's technological availability, and there's what's considered legal availability.

HATCH: Right; absolutely.

LEAHY: It might not have been able -- what I'm saying is it might not have been able to have been tested at the time, but you still have the samples available, and it could be tested now. And what I'm saying is why preclude it, because it wasn't tested -- it could not have been tested at the time of the trial, but now could be tested and might be exculpatory. Why shouldn't it be allowed to be tested?

HATCH: Look, it's the exact language that was in the Illinois statute. In other words, it was not subject to DNA testing requests, because the technology for such testing was not available at the time of trial. Now, we've had improved technology, so you're right. There's no question in my mind about that, and my bill will allow DNA testing under those circumstances. And I wanted to clarify that for Senator Feinstein, because she I think was under misapprehension, and I think you've been very helpful in doing that.

FEINSTEIN: So, if I understand the position of the California attorney general, you are saying that the Hatch bill fulfills your concerns that you have with the Leahy bill; is that correct?

CAMPS: Well, we still need to study the Hatch bill in greater depth. It does address the bulk of our concerns regarding the appropriate standard for post-conviction DNA testing by providing access to those who can benefit by it.

FEINSTEIN: And how would you feel if a competency standard were added to the bill?

CAMPS: Essentially, we think that the two issues should remain separate; that the post-conviction DNA testing bill should be separate from all the competency -- it's a very complex area, and to tie those two together probably isn't, in our opinion, the best way to go, whereas tying the whole DNA testing system together with the financial availability for DNA databanks and that type of situation, expanding the databank to include more crimes, we think those are more logically connected.

FEINSTEIN: Mr. Chairman, if I might ask others the question whether a competency standard should be added to the bill, I'd appreciate the -- that would be a minimum competency standard for death penalty cases.

SPITZER: Excuse me, let me observe that in New York we have done that. We have created a rather sophisticated system, I think, to determine death penalty competency on the part of counsel. I think we need that everywhere. I think the two issues can be logically separated. Each addresses a distinct and yet a very major problem that we have in our criminal justice system. So, one is not logically dependent upon the other, but I think that if we are trying to establish a comprehensive solution, certainly including and defining competency makes sense.

I will just add a footnote of concern: I am not convinced that it will be an easy to task to define what competency should mean. And I think that that will be a difficult burden, not that one that we should not undertake, but it will be difficult.

FEINSTEIN: Thank you. Anybody else?

EDMONDSON: Senator, I have two problems with it: One, of course, is the state sovereignty issue, which is not my precious sovereignty -- it happens to be in the Constitution for good or ill -- and the other is that the committee and the Congress may be making a decision based on representation that was provided in the '80s resulting in reversals in the '90s, instead of looking at, at least on a national basis, the competency of counsel that's being provided today.

Oklahoma responded to what I think was a broken system and established a capital defense apparatus as part of our indigent defense system a decade ago. They are available in every county of the state of Oklahoma. They are provided the resources for technical investigation, for investigators, for paralegals. That apparatus is in place in Oklahoma. In the '80s it wasn't. What we had was a patchwork, county by county, with court-appointed counsel.

In my county, we had judges that happened to look for the best lawyers to handle capital cases, and as a result of that, no death penalty case during my term as district attorney or preceding it out of Muskogee County has been reversed. Other counties -- what we worried about was a lawyer who came in and hired the guy who did his workers' comp case to defend him in a capital case. We had no problems with the attorneys that were appointed by the judge to provide representation. They were high quality lawyers, and as a result our convictions out of that county have been upheld. But it was a patchwork, and it was broken, but it was fixed in Oklahoma.

I don't know about the other 49 states. I'm hearing about New York right now. And I would certainly ask you to examine what's in place today, not the horror stories of what were in place in the '80s that resulted in the conviction reversals that were in the Columbia report.

FEINSTEIN: Thank you. Anybody else?

BAIRD: If I might add to that. I think that it needs to be in this legislation. This legislation is moving along the track, and it's gotten a lot of favorable comments so far from every senator. There is a crisis in the state of Texas as far as providing quality representation for people charged with capital crimes, and I'll promise you the State of Texas is not going to address that. This committee is going to have to do that. It's nice that Oklahoma and New York and California and Illinois have, but there are a lot of states out there have not addressed these concerns, and if this committee does not, they will not be addressed by those individual states.

If I might just continue for one moment. We have a case in Texas where the lawyer slept through the trial. The Court of Criminal Appeals where I sat affirmed that case over my dissent. It was later reversed by a federal judge. It's now before the 5th Circuit, and the state of Texas stood up before the 5th Circuit and said that was in fact competent counsel and that conviction should stand. So, we need desperately some federal standards out there.

FEINSTEIN: Thank you very much, Judge; I appreciate that.

Mr. Marquis?

MARQUIS: I like the standard we have in Oregon, and I'm glad you're a U.S. senator and not me, Senator Feinstein, so I don't have to dictate to the other 49 states what competent standards are, but I share some of these concerns. I think you have a really good concept in the DNA bill of doing something about that, and I'm afraid that could get sidetracked.

And Judge Baird can correct me if I'm wrong, but I believe as a result of, I think, that particular case in Texas, Texas has made some changes already, and now I think requires two lawyers in capital cases.

BAIRD: That's not correct.

MARQUIS: I stand in error.

FEINSTEIN: Thank you very much.

Thanks, Mr. Chairman.

HATCH: I'm informed that is correct. Are you sure?

BAIRD: Yes, sir; I'm sure.

HATCH: Well, I'm informed by our counsel we have a statute in our office that says it is correct, but we need to find out. I mean it's important, but your point is -- both of your points are well taken, and we just have to pay attention to them and see what we can do to resolve some of these problems.

Senator Feingold, we finish with you, and then we're going to go to the next panel.

FEINGOLD: Well, Mr. Chairman, thank you. I want to thank you for holding the hearing, and I have a more extensive statement that I'll submit for the record, but I do want to make a few comments after listening to this excellent hearing for two hours and 20 minutes.

First of all, on the point that was just being addressed, we've checked the language several times, and I simply cannot agree with the chairman's statement that everyone will have access to DNA, because there is a separate requirement for a prima facie showing that identity of the defendant was raised at trial. So, if that was not raised by an incompetent counsel in some other context, that person, even if this person was entirely innocent, would not have access to DNA. So, I think the record needs to be corrected on that. And this is -- as the chairman indicated, this is a very key point, and I think to some extent the actual language of the bill have not been accurately portrayed here.

Another correction. I appreciate Mr. Marquis suggesting that I was a cosponsor of a bill, but that was the senior senator from Wisconsin, Senator Cole, and I'm sure it's a fine bill, but it's not the bill I'm on, and it's unwise to take credit for something a senior senator is doing if you're a junior senator. But more importantly, it's because I am a strong supporter of the Innocence Protection Act, and that's the only DNA bill that I am on at this time, a bill that among other things ensures post-conviction access to DNA testing.

I commend Senator Leahy tremendously for his leadership on this issue, and I'm so delighted that Senator Gordon Smith, Susan Collins, Senator Jeffords, and others have joined on a bipartisan basis to work with Senator Leahy on this. And I am pleased to hear that the chairman appreciates the significance of DNA testing and scheduled this hearing today.

But Mr. Chairman, lack of access to DNA testing is only one of the many flaws in our criminal justice system, particularly with respect to the administration of the death penalty. I am disappointed that today's hearing does not address the remaining very important provisions of the Leahy bill and that no additional hearings on the Leahy bill or on the broader issue of the fairness and accuracy of the administration of the death penalty have been scheduled.

As the chairman knows, I wrote to him in February requesting a comprehensive hearing on the fairness and accuracy concerns with the administration of capital punishment, and I was joined in that request by my colleague, Senator Torricelli, Kennedy, Levin, and Durbin. My colleagues and I who wrote you may disagree on the general moral and practical merits of capital punishment, but we agree that the process by which this ultimate punishment is administered must be one of utmost fairness and justice. We have not yet received a definitive response to that request, and while I am pleased that we have this hearing today, given its limited scope, I hope that we will hear shortly a response to the request of many members of this committee.

And I think it's obvious, I could tell the members of the audience here, it is unusual for one panel to be here and to go on this long. There is tremendous interest in this issue. There is tremendous anxiety on this across the United States of America, and this is not an adequate forum by itself to address this issue.

DNA testing, of course, goes to the question of whether innocent people are being wrongly sent to death row, but only eight of the 87 people who have later been proven innocent after serving time on death row were exonerated based on DNA evidence. The remaining 79 individuals were released based on other problems plaguing the administration of capital punishment in this country. Moreover, the numerous problems, whether they range from inadequate counsel to jailhouse confessions in our nation's administration of capital punishment, go beyond the problem of innocent people being sentenced to death, as troubling as that is. There are also serious flaws that result in the difference between a death sentence or a sentence that is less than death.

Mr. Chairman, I want to shorten my remarks, but I do want to get these other points out, because there was a lot of talk about the Liebman study. The Liebman study findings are not only intolerable, they are an embarrassment for a nation that prides itself on its adherence to the fundamental principles of justice and fairness. And I might add, Mr. Chairman, Professor Liebman's study reviewed cases only from 1973 to 1995, before enactment of the Anti-Terrorism and Effective Death Penalty Act by Congress in 1996. That is a law that restricted the ability of convicted offenders, especially death row inmates, to appeal their sentences. And I wouldn't be surprised to learn, Mr. Chairman, if since enactment of the 1996 law that the rate of errors going undetected on appeal is even higher than before.

It is also disturbingly clear that sometimes there are errors due to racial bias in the criminal justice system. Last week's Supreme Court decision involved convicted murderer, Victor Saldano, as a case in point. The Supreme Court vacated the death sentence of Mr. Saldano, because it found that a Texas court had improperly allowed a psychologist to testify at the sentencing phase that the race of Mr. Saldano was evidence of his future dangerousness. Contrary to the statements of Governor Bush, I believe that these revelations do not show that the almost conveyor belt of death in Texas is working. When the attorney general of his state admits that racial bias was a factor in sending seven inmates to death row, it is just another sign that the system is not working.

A recent expose by the Chicago Tribune also shows that many of those already executed under Governor Bush's watch had much less than the, quote, "full access to the courts," unquote, that Governor Bush professes all those executed under his watch have received.

Mr. Chairman, the Innocence Protection Act is a good first step in addressing some of the most glaring flaws in our nation's administration of capital punishment. In addition to providing access to post-conviction DNA testing, the Leahy bill begins to address the egregious problems involving incompetent defense counsel, which Senator Biden so eloquently addressed. I hope my colleagues will join in supporting the Leahy bill.

But Mr. Chairman, I will conclude by noting that the U.S. Senate can and should go one step further. It has become increasingly, disturbingly clear that our nation's administration of capital punishment has gone amuck. Studies like that of Professor Liebman are further proof that our nation should suspend all executions and undertake a thorough review of the system by which we impose sentences of death.

A bill I've introduced, the National Death Penalty Moratorium Act, would do just that. My bill is a common sense, modest proposal to study to have the moratorium and pause and study the problems plaguing capital punishment. It is very similar, almost identical, to what Governor Ryan caused to happen in Illinois, a moratorium combined with a blue ribbon panel of both pro- and anti-death penalty individuals who will review it.

Mr. Chairman, do we really believe that we should keep executing people as these problems are raised in such a frightening way? I think the only rational course is to have a brief moratorium. In fact, I think this almost Orwellian notion of comparing the executions to the decision to take an airplane is a suggestion of how far people are willing to go to try to not admit what's staring us right in the face. We have to stop this for a while to make sure that nobody is being executed in error.

Indeed, momentum for a nationwide moratorium on executions has been growing for some time, from both death penalty foes and supporters. Reverend Pat Robertson, a death penalty supporter, has endorsed a moratorium. In an editorial on June 6, the Washington Times essentially endorsed a moratorium, and I was delighted with Senator Biden's remarks saying that we need a moratorium, and I think we could easily talk about the specifics of how the moratorium would conclude. That was his concern about the bill. I'd very much like to receive his support.

Finally, Mr. Chairman, two further clarifications. In your initial remarks, Mr. Chairman, you pointed out a decline in the administration, actual executions between 1997 and 1998. But the chairman did not note what is most significant, which is that last year, 1999, was the all time record of 98 executions in this country. And if we are not going to reach that high mark this year, I suggest it is not because this system isn't moving as fast as it can. I suggest it is because finally people are beginning to see the problems with it, and we are at least beginning to pause in some cases, but not all cases.

The other clarification I think is referenced to Mr. Marquis again who suggested that support for the death penalty has been consistent over many years. That simply isn't the case. As Senator Biden pointed out, support was as high as 90 percent at one point. The polls are showing a decline in support for the death penalty. And it may not be because don't ultimately from a majority's point of view believe in the death penalty. It's because of these concerns, and that's exactly what the polling indicates.

So, Mr. Chairman, I hope this committee will lead the Congress and nation and reexamine the absurdly faulty system by which we impose sentences of death in our nation today. We should ensure -- indeed, Mr. Chairman, I believe as members of Congress, we have a duty to ensure that the world's greatest democracy has a system of justice that is beyond reproach.

And Mr. Chairman, I will just ask one question to Mr. Marquis. You recognize in your testimony that police, prosecutors, judges, and juries are not infallible, and you make the claim speaking of successful death penalty appeals that, quote, "Almost every last one of these cases is not an innocent on death row," unquote. I assume that you would not find acceptable a system that executes even one innocent person or am I misstating your position?

MARQUIS: No, I think we should strive for a system that never executes an innocent person, Senator.

FEINGOLD: Thank you, Mr. Chairman.

HATCH: Thank you.

Now, Mr. Baird, I do want to clarify this, because the counsel has pointed out to me that under the Texas Code of Criminal Procedure, Chapter 26-052, The Appointment of Counsel in Death Penalty Case, Reimbursement of Investigative Expenses, et cetera, that Subparagraph E says this: "The presiding judge of the district court in which a capital felony case is filed shall appoint counsel to represent an indigent defendant as soon as practicable after charges are filed if the death penalty is sought in the case. The judge shall appoint lead trial counsel from the list of attorneys qualified for appointment. The judge shall appoint a second counsel to assist in the defense of the defendant unless reasons against the appointment of the two counsel are stated in the record."

So I think...

BAIRD: That's not automatic.

HATCH: It may not be, but there have to be reasons not to. I think Mr. Marquis is right on that issue and according to the Texas Code.

BAIRD: May I just add one thing to that, Senator? Certainly there is no qualification or no requirement that there be two lawyers appointed on the appeal, and there has never been two lawyers appointed to assist in post-conviction ...

HATCH: I'm talking about the trial.

BAIRD: ... capital cases.

HATCH: Well, we're talking about the trial, which is what I asked you about before, and which Mr. Marquis said you have a right to two attorneys down there and -- you have a right subject to some reason not to do it, but you certainly have an instant right, that that's what that statute says.

Senator Schumer.

SCHUMER: Thank you, Mr. Chairman, and, first, let me thank you for holding this hearing and Senator Leahy for his outstanding work in this area, as well as the witnesses. I want to particularly welcome the outstanding attorney general from my state, Elliott Spitzer, for being here, who's doing a great job in making it a people's office. And I apologize to all the witnesses -- we have a Banking Committee hearing, and I've been trying to go back and forth, but I ended up spending most of my time there.

Mr. Chairman, I guess my view is somewhat different than any of the views stated here. I think DNA testing is great, because I think it brings out truth. I think those on one side of the issue or on the other side of the issue are trying to take what is basically a neutral of capital punishment, that is, or basically taking what is a neutral but far more effective method of proving the truth and saying it buttresses their cause.

I do think, and I think it's fabulous that -- and I think it's appropriate that innocent people, whether it be for capital crimes or other crimes, will be exonerated and, in the first instance, not proven guilty by mistake because of DNA. I think it's also very estimable that guilty people will be proven guilty, and I think both sides of this issue are important issues.

To be against DNA testing is to -- sort of to be lead-eye (ph). It's to take one of the newest advances in criminal justice and saying we shouldn't use it. But I think those on either side who use it as proof that we ought to have more punishment or less punishment are mixing apples and oranges. Your values -- I tend to be somebody who has believed in the last 20 years that societal rights were sacrificed for individual rights in the criminal justice system, and I saw in my communities in the mid-80s a system that had run amuck, where people were not punished for crimes that they were convicted of. That's a value choice each of us has to make. It's not an easy choice.

DNA testing, once you make that value choice, allows things to happen in a more consistent, in a more truthful way. So, to me, it's neutral, even though it evokes great passions -- neutral in terms of one's value judgment of where you come out in the criminal justice system.

Certainly, in capital crimes, we ought to be very careful. I have supported all sorts of changes in the law to make sure people get counsel, even though I support capital punishment in certain instances and believe that it is an appropriate punishment.

I agree with much of, say, Senator Leahy's bill, although I must say there's a provision in it right now that would prevent me from supporting it, the provision that says that if you commit under federal law a capital crime in a state that doesn't have capital punishment, you can't -- the federal law would not apply. That is not, to me, what our ...


SCHUMER: With a number of exceptions, but I disagree with the concept. I don't think I would want to see that law applied for gun crimes, federal gun crimes. I don't think I'd want to see that apply to anything. We're making a federal judgment here, and I don't think the state law should be part of it, and I would urge the Senator -- talk to him privately a little -- to take that out of his bill, and it might make it a little more palatable to some of us in this area.

And then I'd just like to make one other point before I ask a question. In terms of having DNA be a useful tool on both sides of the issue in terms of finding truth, we need real help in our state of New York to help convict people who have raped women and have not been brought to justice.

We have 15,000 rape kits in New York State sitting in refrigerated warehouses awaiting DNA testing and possible matching to people with profiles already in state or federal databases. Nationwide, the Department of Justice estimates there are 180,000 rape kits that require an analysis, and a recent survey by the Police Executive Research Forum found that, in some instances, police don't even bother to submit rape kits to crime labs, because they're convinced that the kits will never be tested. It's expensive. I guess it's about $2,000 for each test.

So we need to do a much better job of using DNA to exonerate the innocent and not convict the innocent, but also to catch criminals, and, to start, I am proposing legislation that'll help states reduce their backlog of unsolved crime evidence, particularly in the area of rape, by providing $100 million in federal grant funding over four years. That funding will go to states to use at labs screened for quality assurance to reduce backlogs in unsolved crime evidence that needs to be DNA tested.

UNIDENTIFIED SENATOR: What's the cost of the bill, Senator?

SCHUMER: About $100 million.


UNIDENTIFIED SENATOR: Is that for the rape -- that's for your ...

SCHUMER: Rape kits, yes.

UNIDENTIFIED SENATOR: Well, I'm willing to work with you on that, too, because my bill provides $60 million to reduce these state DNA backlogs.

UNIDENTIFIED SENATOR: Can you get our bullet-proof vest bill out where we spend this money to protect the police officers ...

UNIDENTIFIED SENATOR: We're going to get that out. It's not ...

SCHUMER: In any case, I'm glad to have support for this idea.


SCHUMER: If you spent $100 million over four years, it would eliminate the national backlog by about 2004, and I'd hope this legislation could complement the Dewine-Kohl bill, which eliminates the backlog of convicted offender DNA samples, something I also support. Together, these bills will dramatically enhance the administration of justice by insuring that DNA testing occurs as widely as possible on the state and federal levels.

And, so, in sum, Mr. Chairman, we owe it to both the victims of crime and potentially innocent people who are incarcerated or could be incarcerated to expand our use of DNA. We owe it to our society to bring a fairer system about, and I hope that we will move forward in making that happen.

My question, Mr. Chairman, which I very much appreciate, is this: I first ask the panel what they think of the proposal that I have made, and I'd welcome general comments on my general comments, and I'd first give the courtesy to my friend and colleague from New York, Mr. Spitzer.

SPITZER: Thank you, Mr. Schumer, soon to be Senior Senator Schumer. It's a pleasure to be here, and I agree with ...

SCHUMER: I want to tell you a story about that, if I might interrupt.

SPITZER: That wasn't my full answer.

SCHUMER: The first day I got to the Senate, the first person I met waiting at the door was Senator Hollings, and he came over to me and said, "Well, you are something." And I said, "Well, thank you, Senator." He said, " I hear you're going to be the Senior Senator in two years." I said, "Yes, sir." He said, "I've been here 37 years, and I'm still the Junior Senator." So -- he has Strom Thurmond, as you know. Anyway ...

SPITZER: I am the Senior Attorney General from New York State. The -- and the Junior -- that's correct. Let me make several observations about your points.

First, with respect to funding to overcome the backlog of DNA testing, it's absolutely critical, and it is a problem that we are confronting across the United States. In New York, in particular, we are expanding the DNA database because it is such a powerful and, as you observed, a neutral tool, both -- it exonerates and it finds the individuals guilty.

We are expanding the database. We are making it more applicable. We are expanding the universe of crimes where we seek to use DNA. It is absolutely critical, and so any additional funding we can get from any source will be not only of use, but is necessary to permit us to turn it into the tool that we should make it.

With respect to the federalism point that you alluded to, in terms of not creating an exception based upon state law where we are striving for a national standard, I agree with you there as well, and I will freely admit that when I was elected attorney general, I had something of an epiphany about federalism. I suddenly became a bit more protective of states' rights.

Having said that, I think this is an area where we need uniformity, we need national standards, and everything we can do to determine what that national standard should be and then apply it across all 50 states is commendable and important.

SCHUMER: One other question for you, Mr. Spitzer. New York offers DNA tests to convicted offenders when there's a reasonable probability that the test would result in a verdict more favorable to the defendant.

SPITZER: Yes, sir.

SCHUMER: That's really not a neutral. I mean, obviously, a convicted offender isn't going to want to test if he thinks it's going to make the case of the prosecutor better. But why aren't we offering DNA tests in any situation where it might bring about greater knowledge, greater justice, whether it's more favorable to the defendant or more favorable to the prosecution? I didn't understand why New York took what you say -- and I couldn't agree with you more -- is a neutral, truth serum, almost, and then just used it in one direction but not the other?

SPITZER: I think -- your point is well taken, but I would distinguish between access to DNA testing pre-conviction at the initial trial phase, where yes, it is neutral, and it should be as widely available as is physically possible, versus the access on subsequent review, where we are already post-trial, post-conviction, and we then have to -- and I think much of the discussion today has focused on what that threshold should be -- we do not want to revisit and relitigate every case from ground zero, but then say there should be some affirmative reason to reopen, in essence, a factual inquiry that has been already concluded.

So I would differentiate between the appellate standard for access to a DNA test, where some sort of showing (ph) might be necessary, and an initial inquiry at a trial phase, where -- I agree with you entirely -- everybody should have access ...

SCHUMER: DNA testing is going to bring about certain situations where somebody has been declared innocent, and then the evidence is going to point to the fact that they did the crime.

SPITZER: Absolutely.

SCHUMER: And, of course, we have our constitutional standards, but it's also going to come in that -- it's also going to have its effect in that direction as well.

Any other comments?

UNIDENTIFIED SPEAKER: Senator, I think it's an excellent idea. In my testimony, I pointed out that the backlog there is -- I think anything that would help DNA. The only concern I have, to answer your last point, is someone who's been declared innocent can never be retried ...

SCHUMER: Correct. I just think those who think that DNA is sort of not a neutral type of -- but rather it's being used by many, and I respect, say, the views of my colleague from Wisconsin, who's morally opposed to capital punishment. I'm not. This is a neutral tool, and it's going to show that mistakes were made in both directions. Now, in a capital case, obviously, you want to err on the side of caution, but it's going to show that mistakes were made on both sides of the ledger in all sorts of crimes.

Thank you, Mr. Chairman.

HATCH: You're up next. You haven't asked any questions.

SESSIONS: Thank you. Senator Leahy, I appreciate the opportunity to participate in this, and I think Senator Smith earlier said if we want to make a good system better, there is no reason that this committee shouldn't be always alert to whatever we can do to make the system better, and if there is some possibility that some cases may not be getting appropriate review of DNA evidence because they can't prove that DNA evidence was exculpatory, per se, and just can't meet the burden of proof, maybe we can help eliminate that problem, and I'm supportive of efforts that would do so.

I did spend 15 years, or really 17 years, as a prosecutor, and I do believe that the purpose of our system is to achieve justice. I used to tell my assistants that they should never prosecute a case if they didn't believe the defendant was innocent -- if they didn't believe a defendant was innocent, to come see me immediately, and I might not agree with them, but if I did, we would stop that case. There are plenty of guilty people that need to be prosecuted that, heaven knows, we don't need to prosecute innocent people.

But I do say that this concept of using DNA is consistent with my philosophy of justice, which is to get the truth. And I've often opposed many of the procedural rules that have favored defendants at the expense of truth.

For example, broad interpretations of the exclusionary rule in Mount (ph) v. Ohio have caused real critical evidence seized by police to be omitted from trial for technical violations, when actually guilty defendants are released. Miranda v. Arizona has also caused some people who have confessed and are clearly guilty to have those confessions suppressed even though they were not threatened or coerced into giving those confessions.

But we do have a new technology now that can help us in criminal justice. The truth is it will probably -- in the cases since it's been developed forward, I don't believe our criminal justice experts would dispute, it's working fairly well today.

I mean, routinely, if a defendant is arrested today for a serious, violent crime and asks for a DNA test, isn't it true that, virtually universally, that test can be obtained if it's -- they request it, and they have some basis for it being relevant?


SESSIONS: Is that correct? So what we're dealing with now is what happened in the early days, either before DNA was available or when people didn't know to ask for it. Isn't it true that in a serious case, a defendant can get an independent DNA expert in most states to validate the finding of the state's expert analysis? Do you know that?

UNIDENTIFIED SPEAKER: In my state, they can.

SESSIONS: They can?


EDMONSON: It's true in Oklahoma at either the trial stage or the appellate stage.

SESSIONS: Good to see you, General Edmonson. I enjoyed serving with you as attorney general, and thank you for your wise comments earlier today.

Well, we've reviewed -- had my staff review an actual innocence, and I think it does raise some questions along the lines that I've just discussed, and, Senator Leahy, I am interested in seeing what we can do to improve this system in any way we can.

Let me ask, though -- I won't go -- I'll probably put my remarks in the record, but with regard to the fundamental state of the criminal justice system -- Ms. Camps, you're dealing with it. I know Mr. Edmonson. Would you -- do you think the criminal justice system is in crisis today, and that there's something peculiarly dangerous about our current climate of death penalty cases?

CAMPS: That's a very complex question. I mean, I actually think that to the extent that we are considering DNA evidence to resolve questions of actual innocence, it's exceptionally important in all of our cases, and that includes our capital cases. To the extent that we're going to make contingent large changes in the criminal justice system on the availability of DNA testing, we should be awfully concerned about what the standards are going to be for that testing.

We also think it's most appropriate to keep those issues separate, to keep the post-conviction DNA testing issues separate from the competency of counsel issues in revamping our whole approach to death penalty ...

SESSIONS: I certainly think that's true.

Attorney General Edmonson, do you think that we're in -- our criminal justice system is sinking and is in a crisis and is less just today than it was, say, 10 years ago? How do you see it?

EDMONSON: I do not have that feeling. I believe that the results that were shown in the Columbia study -- I think the comment was made earlier when cases are reversed on appeal, it is the courts giving the states guidance on how to do it right, and it has resulted in changes.

I see that as a positive thing rather than a negative thing. I think it's an indication that the system is working, not that the system is broken. In the wake of those reversals, as I mentioned, Oklahoma adopted a capital defense team that's fully funded. In the wake of Ake (ph) v. Oklahoma, Oklahoma began funding expert witnesses for the defense. We went beyond the requirements of Brady (ph) because some prosecutors were ...

SESSIONS: Brady (ph) is the requirement of a prosecutor to produce exculpatory evidence...

EDMONSON: Exculpatory evidence, because prosecutors were having to decide what they thought was exculpatory and what they didn't, and that was being reviewed and second guessed by judges, so we adopted a criminal discovery code in the state of Oklahoma.

SESSIONS: That went further than the constitutional requirement of Brady (ph)?

EDMONSON: Even further. But all of those were things that happened as a result of cases being reversed and guidance from the courts on how to do it properly. I don't think we're in crisis today. I think we're doing a good job. We're funding the defense, and for the first time, we have the ability to see the end of the appeals process, and that's what I'm concerned might get disturbed.

SESSIONS: Along that line, I had a capital litigation section in my office, and there were two death penalty cases carried out in my two years as attorney general, a very serious matter. But from what I learned about the state court system, which is -- 99 percent of these cases are in state courts -- is that our prosecutors at the county and circuit levels have really learned and gotten better.

The courts have gotten better, and many of the objections that occurred right after 1976, when we got back into the death penalty prosecutions, have been settled, and prosecutors are adhering to those rules far more completely -- and judges, too -- than in the past. Would any of you disagree with that?

UNIDENTIFIED WITNESS: I do not want to, sir, jump to that conclusion. I'm not sure it's a relevant question, quite frankly, because I think that your question doesn't probe in the right area. Are we in crisis is not the threshold that seems to be relevant here.

We may not be in crisis, but that does not mean that there is not both a legal and perhaps even a moral obligation to improve upon what we have, and I think for the reasons that have been stated so eloquently by some other senators -- the fact that how you define crisis, I do not know, but I will say that the studies that are done and the stories that continue to emerge do not reflect to me a status quo that should leave any one of us comfortable, and I think quite the opposite.

I think, given the advent of new technology, to say that there is not crisis, therefore, we need not address this problem is to pursue a form of logic that I think is dead wrong.

SESSIONS: Well, I didn't say that. I said in the beginning we need to do something.

UNIDENTIFIED WITNESS: Well, in which case, I wonder if the relevances that we touched on today (inaudible) that the word crisis is.

SESSIONS: Yes. I would just say -- and I think it's indisputable -- that we are doing better in handling important criminal cases in America today than we were 20 years ago, and we can continue to get better, and I really support that idea. And a lot of people are bandying about that we are in a crisis, which I haven't seen in my own experience.

Mr. Chairman, I'm sorry to take -- to go over.

HATCH: Thank you, Senator.

I want to thank this panel. It's taken us much longer than I thought it would to go through it, but each of you has contributed, I think, greatly to this, and so I'm very grateful to you. I'd like to -- did you want to make...

LEAHY: Just this, Mr. Chairman. The panel has taken a long time, but I think that underscores the importance of this...

HATCH: Oh, I agree.

LEAHY: ... this issue. A couple of things we should keep in mind, in looking for competent counsel and looking for the availability of all the evidence, it's not just to -- it cuts both ways. It doesn't just acquit the innocent, but it makes sure the guilty is convicted.

I can't think of anything worse than to convict somebody innocent of a heinous crime, have them in jail for years, and find during the time the person who committed the heinous crime is out there, in all likelihood, committing more crimes. I also can't think of anything worse from a prosecutor's point of view than to have a case, because of incompetent counsel or whatever, remanded for new trial of a major case five or six years later because you can't try it. In all likelihood, half the witnesses are gone, the evidence is gone, you're probably going to have to seek a plea bargain of some sort, and so that creates a problem.

And, Ms. Camps, I would point out there may be some who may have misunderstood your earlier testimony. I don't think you intended to misstate my proposal, but in it, my proposal is very clear that the court, in ordering DNA testing, has to determine that testing would produce non-cumulative exculpatory evidence relevant to the claim of the applicant that the applicant was wrongfully convicted or sentenced, which would be, I believe, substantially more than the impression that may have been left of what is required.

But all of us should agree that something is going wrong here, and all of us would agree with Senator Sessions that if you have a good prosecutor, the last thing in the world he or she wants is to convict somebody who is innocent, because if we do maintain the credibility of the criminal justice system, in most cases, the prosecutor comes in with the advantage into a court, and most juries tend to side with the prosecutor right off the get-go.

HATCH: Ms. Camps, did you have a -- you look like you wanted to make a comment.

CAMPS: With respect to the Leahy standard, the word...

LEAHY: Give Senator Smith credit, too, on this bill. I don't want to...

CAMPS: I'd like to do that.

LEAHY: ... you keep leaving him out, especially when you're criticizing it. But I don't...

HATCH: There's nothing like fairness on this committee, as I like...

LEAHY: I just don't want you to think just -- I don't want you to think only Democrats can think of this. I want you to understand that some Republicans like this legislation, too. Go ahead, Ms. Camps.

CAMPS: And, obviously, we think that the accessibility to post- conviction testing is very important, but, of course, we are concerned about the standard. The standard that it may produce relevant evidence is very different from presenting a prima facie case that identity is an issue and that it's material to an actual assertion of innocence, because materiality is a key word that we don't see in your proposal, and we think that the -- that it's limited in terms of its probativeness to the actual trial evidence.

So if you have a case where identity is not an issue, where the issue in a rape case is consent and not identity, that DNA evidence is not going to show anything that is of significant value to that case. And so we want to limit it to those cases where it is truly useful and can actually undermine the confidence in the outcome of the verdict.

LEAHY: But you're not saying they've got to prove their innocence before they can ask for this evidence.

CAMPS: No, but there has to be -- the words from New York are reasonable probability. There are standards for that. But may produce, we find, is too low a threshold.

HATCH: Well, we want to thank you all for being here. I'd like to just recess for two minutes, and I want to chat with a couple of you, and then we'll call the second panel. Thank you.


HATCH: All right. We're going to call this to order. Now, I would like to call forward our second panel of witnesses and ask them to take their seats at the table. Now, I am limited in time. In fact, I have to leave here by a quarter to two, and I doubt that we'll be finished by then, but I've got to leave.

So, Senator Sessions, can I ask you to continue for me? I have to visit -- I have a doctor's appointment, so I have to leave at a quarter to two.

SESSIONS: At your disposal.

HATCH: Thank you.


HATCH: I just wish that were true.

SESSIONS: I've been disposed of several times.

HATCH: Our first witness is Barry Scheck, who is a professor at Benjamin M. Cardozo School of Law and the co-founder of the Innocence Project. Mr. Scheck is also a member of the National Commission on the Future of DNA Evidence. Personally, I have a lot of respect for him, and we may differ on whether or not there should be a death penalty, but I have a great deal of respect for your knowledge and your ability.

SCHECK: Thank you.

HATCH: Our second witness is George Clarke, who I also have a lot of respect for -- Deputy District Attorney for the County of San Diego and a member of the National Commission on the Future of DNA Evidence. We're honored to have you here.

Our next witness, Bryan Stevenson, the Executive Director of Equal Justice Initiative of Alabama and Assistant Professor of Law at New York University School of Law -- and this isn't your first time here. We're glad to have you here, too.

STEVENSON: Thank you.

HATCH: So we'll look forward to your testimony. We'd also like to welcome Dennis Fritz, a former inmate who was released based on post-conviction DNA evidence, and I think your testimony is very critical to this hearing today. So I ...

FRITZ: I'm also a plumber and a high school science teacher, too.

HATCH: Well, we're glad to have you here, and we're sorry what you went through.

Finally, we welcome James Wooley, a white collar defense lawyer and member of the National Commission on the Future of DNA Evidence, and we have great respect for you, Mr. Wooley, as well. So we'll begin with Mr. Scheck. If you could limit yourselves to five minutes, it really helps me to hear all of you. I may not be able to be here for all the questions, but it would be very helpful to me.

So, Mr. Scheck, we'll turn to you, and, once again, we're glad to have you here.

SCHECK: Thank you, Senator Hatch. There's one other qualification I should state that I think may help the committee with my testimony, and that is I am a commissioner of forensic science in the state of New York, which means we have a commission that regulates our crime labs and helps set up our DNA databank, and working with Howard Safer (ph), who I sue a lot of times in civil rights actions, the mayor of the City of New York, and Governor Pataki, we've worked hand in hand in cleaning up the DNA backlog.

I'm the one that told them to test those 15,000 untapped rape kits in the City of New York, and so I think I have a good handle on the cost issue, which seems to be a concern in light of Ms. Camps' testimony.

First, let me say, Senator Hatch, that there have been at least 73 post-conviction DNA exonerations in North America, 67 in the United States, six in Canada. Our Innocence Project has either assisted or been the attorney of record in 39 of these cases, including the eight people that were sentenced to death. In 16 of these 73 cases, the DNA testing has not only remedied the miscarriage of justice, but has led to the identification of the real perpetrator, just as it did in the case of Dennis Fritz.

With the expedited, expanded use of DNA databanks, and with the continued technological advances in DNA testing, not only will post- conviction DNA testing continue exonerating people, but it also is going to increase the number of times that we're able to identify the real perpetrator. There is an urgent need for national legislation to assist in what is actually a narrow but important group of people, those who have been sentenced to decades in prison or sit on death row but could show through post-conviction DNA testing that they were wrongly convicted or sentenced.

I am profoundly indebted to you, Senator Hatch, for taking up this cause and holding these hearings, and, of course, I cannot thank enough Senator Leahy, Senator Feingold, Senator Smith for co- sponsoring the Innocence Protection Act.

Let me just hit a few key points in considering this historic legislation. First, very quickly, we can't limit this just to capital or life sentence cases. Neither bill does, but the reason I raise it is that when you look at some of the post-conviction DNA statutes that are passing, particularly in the state of Washington and the state of Tennessee, they only limit it to capital cases or life sentence cases. And what about all the other people like Dennis Fritz, who were, you know, in jail for decades, who can prove their innocence with the DNA test.

The issue of statute of limitations -- in the report that Woody (ph) Clarke and Jim Wooley and I served on, Recommendations for Handling Post-conviction DNA Applications, which comes out of our Commission on the future of DNA Evidence, a commission that was made up primarily of law enforcement people, police chiefs, crime lab directors, prosecutors such as my colleagues -- we came to the considered judgment that in terms of seeking a post-conviction DNA application, there should be no statute of limitations. And by that, I simply mean that if a DNA test could show that you were -- that with reasonable probability, you were wrongly convicted or sentenced, then you should have a chance.

And the reason that's so important is that we're looking at cases that are 10, 15, 20 years old. By the time, whatever standard you choose, an inmate is able to find the transcripts, find the lab reports, find the police reports, and make the necessary showing that a favorable DNA test would show a reasonable probability of wrongly convicted or sentenced -- it takes a number of years, particularly in jurisdictions where there are no counsel, certainly not in post- conviction, that can handle this. So it was true in just about every one of these cases, where people are exonerated.

The other point I should jump to right away -- and on this statute of limitations point, just look at all the people. I mean, just since our book, "Actual Innocence," was published, Clyde Charles (ph) in Louisiana, 19 years in jail in the infamous Farm (ph) and Angola Prison -- he spent nine years trying to get the DNA tests.

Another inmate that greatly concerns me, a man named Archie Williams (ph) in Baton Rouge, Louisiana -- he really gets to the point. He has been convicted in a case where it was one perpetrator, a single eye witness. The prosecution took the position at the time of trial that the blood type from the semen matched Mr. Williams (ph). He's asking for a DNA test. The Louisiana courts won't let him have that test. We've been pushing for it for years. We're not in federal court.

The rationale they came up with -- and this is why I think the actual innocence standard, Senator Hatch, is too high. The rationale that the Louisiana courts came up with -- and it's happened in case after case -- is they suddenly said, well, I don't care if the prosecution's theory at the trial is that he was the semen donor. It's possible that maybe there was another consensual donor. Maybe the husband of the victim had sex with her. Well, that's something we can test with elimination samples and we've done it in case after case, yet the courts have denied him access, even though it's perfectly appropriate.

If you watch tonight, the case, for instance, a "Frontline" special produced by Olford Bakell (ph), that is going to show you the case of Roy Criner (ph)...

HATCH: What time is that on? Do you know?

SCHECK: I don't know when PBS is running it, but it's ...

HATCH: Is it "Frontline?"

SCHECK: Yes, and I will send a copy of the tape, sir ...

HATCH: Well, I'd like to have it.

SCHECK: ... because it'll show the Criner (ph) case. When you see the reasoning of the courts there, it's going to trouble you. So I think actual innocence is too high.

HATCH: It troubles me now.

SCHECK: Actual innocence is too high. So we've had so many people who have spent so many years knocking on the doors, unable to get the DNA test because of the statute of limitations, and I know, given the tenor of these hearings, something is going to be done about it.

Now, let me get to the cost point about preserving the biological evidence and why, actually, the proposal of the Leahy bill is going to help. As Jim Wooley and Woody (ph) Clarke certainly will tell you, we had the people in our DNA commission from the Los Angeles Police Department crime lab come to us and make a presentation that they have all this evidence and they're afraid to get rid of it.

I can tell you, because we're the ones in the trenches litigating these cases, the rules on preservation of evidence across the states is totally haphazard. It doesn't even matter what the rules are. It's totally fortuitous whether they save the samples or not.

But if we say if you're in jail, and biological evidence could be determinative, it should be preserved unless the state comes in and gives you notice, 90 days, and says now we're going to destroy it, that's going to help, and it's going to help remember, because every time an innocent person is put in jail, the real perpetrator is out there committing more crimes, and that's what DNA testing and DNA databanking can help us. So in these old cases, it's a net plus to law enforcement that they have to inventory in a sensible way the old unsolved cases. There is no bigger supporter than I am of testing these old unsolved cases.

I have a problem, Senator, just in the language. I hear from the tenor of your remarks that you wouldn't intend it to be a bar, but when we talk about the evidence was not subject to DNA testing, requested because of specific knowledge, it was not available at the time of the trial -- taken literally, almost every person exonerated with the DNA test would be excluded, if it was taken literally, because since 1988, as Dennis will tell you, there was some form of DNA testing that was in theory out there.

The compromise that our DNA commission -- the Leahy bill says that if a more accurate DNA test could show you innocent, then you have a shot at it, because there have been some improvements in the technology.

LEAHY (?): I'm for that, so there's no problem. We'll resolve that one way or the other.

SCHECK: Finally ...

LEAHY (?): I think ours does, but, you know, ours is the exact language of the Illinois statute.

SCHECK: Right.

LEAHY (?): And we thought we'd solved the problem. I think we have, but we'll look at that. I mean, I'm not -- you're making a good point.

SCHECK: The final point I just want to make, as I see my time is up, is that this is such -- it's going to be a narrow number of cases, really, in the final analysis. Seventy-five percent of the time in these innocence cases, the evidence is lost or destroyed, unfortunately, and we can't get the test, even if it could be dispositive on the issue of guilt or innocence. If we pass the Leahy bill, just with that standard today, I don't think, nationwide, ultimately, by the time we find the evidence, there would be 100 cases. But these cases are of such critical importance to learning something about the criminal justice system.

In our book, "Actual Innocence," we go through what DNA testing shows us in these post-conviction situations, what we can learn about mistaken identification, false confessions, jailhouse informants, bad lawyers, prosecutory and police misconduct, all the cause of the conviction of the innocent, and we propose mainstream proposals that Republicans and Democrats, liberals and conservatives, prosecutors and defense lawyers can all get behind, because they not only prevent the conviction of the innocent, but they lead to the identification of the guilty before they commit more crimes.

That's what this is about. That's what we lay out here. And, Senator, I'm so happy that you've presented this. If we can -- it's a race against time. We are in a race against time. As they go through, bureaucratically, destroying the biological evidence that are keys to freedom of people, cases -- we can learn so much to fix this system and change it.

I agree with Senator Schumer's remarks that this is neutral. Draw what conclusions you may want about the death penalty, but the need for this kind of innocence protection legislation and the need for more standards and more money for counsel -- I can't emphasize enough how important that is.

HATCH: All right. I want an autographed copy of that book, OK?

SCHECK: Well, I should say that we made -- I brought a whole series, and they're all available for each senator.

UNIDENTIFIED SENATOR: How much is it, Mr. Scheck?

HATCH: I'll put it in my autographed book section after reading it.

Yes, Mr. Clarke, we'll turn to you.

CLARKE: Thank you, Mr. Chairman. I've already asked Barry for a copy of the book with his autograph. But I want to thank ...

UNIDENTIFIED SPEAKER: Give him Senator Hatch's copy.

CLARKE: Perfect. I want to thank you also, Senator Leahy, and members of the committee, for this opportunity to address you on a topic that I think is of tremendous importance to all of us in the criminal justice system as well as the public.

As was mentioned, I do serve along with Barry and Jim Wooley on the National Commission on the Future of DNA Evidence, which, since 1998, we've been engaged in a study of various aspects of forensic DNA typing, which included, as Barry mentioned, the post-conviction uses of that typing and the important use it has in helping to exonerate inmates who were convicted of crimes prior to approximately 1992, in that range, and so forth.

Many of you are familiar perhaps with a study undertaken by the National Institute of Justice and its 1996 report, a copy of which I have, the "Convicted by Juries, Exonerated by Science," which chronicles the cases of 26 inmates who were convicted of crimes, again, a number of years ago prior to the availability of DNA typing, who were later exonerated by DNA typing and released from prison.

I think that study is very important, because it gives us a good deal of instruction about the power of this technology to truly deal with the truly innocent in that context. One of those cases, actually, that is one of those 26 cases, actually took place in San Diego.

A man named Frederick Rene Day (ph) was convicted of the 1984 kidnapping and sexual assault of a female victim. He was tried, he was convicted of those crimes, and sentenced to a very lengthy term in prison. He was convicted based on not only eye witness identification by the victim herself, but also eye witness identification by a totally independent third party who witnessed the kidnapping itself. Frederick Day (ph), just a number of years ago, was unequivocally exonerated by DNA typing.

My own office has begun a program. This is an in-house program of reviewing our own older cases -- this is in San Diego County -- to determine the propriety of post-conviction DNA typing. I'm not aware of any other program or any other prosecutor's office in the country that has begun such a program, but we are just in the beginning stages of that.

With the assistance of our California Department of Corrections, we have identified 560 inmates who are currently still serving sentences for crimes committed prior to 1992, and it's from that list that we have begun our study. Our goal is to identify those cases, those individual cases, in which inmates have consistently maintained their innocence, and that they were misidentified, either by eye witness identification or other circumstantial evidence indicating that they were the individual who committed that crime. In the appropriate cases that we discover, we will offer DNA typing to those inmates to help resolve the question of actual guilt or actual innocence.

I have had the opportunity to closely examine, I believe, both the bill sponsored by Senator Leahy and others, as well as the Hatch legislation, and, in my opinion, the standard set forth in the Leahy bill frankly casts too wide a net, and I'll explain a little bit more about what I mean by that in a moment. As Ms. Camps pointed out, resources that are currently available for DNA typing can provide for only a fraction of the actual needs of that typing.

Evidence of this has already been noted, and tens of thousands of cases of serious and violent crimes are denied the power of DNA typing. Nearly one million individuals, we were told as a commission, have provided convicted offender samples, and they have yet to be typed and entered into our national database systems.

The most important point, I think, for your consideration is this -- that Senate Bill 2073 requires the granting of DNA typing, so long as that evidence is, A, available, obviously, that it would, if exclusionary, be relevant and exculpatory. Now, as Ms. Camps pointed out, that's a standard that's of some difficulty to me. I think it can be interpreted, as has been presented by Senator Leahy and others, which would frankly render it in a manner not totally unlike the Hatch legislation.

My fear is that it will not, and that using terms like exculpatory and relevant would frankly allow testing of a forcible rape that occurred in a hotel room, allow testing of a semen stain found on the bedspread, that the likelihood is has absolutely nothing to do with the rape itself, and I'll describe a couple of more examples in a moment.

In contrast to that standard, in my view, the Hatch legislation prescribes that an applicant must provide, as has been noted, a threshold or prima facie showing that identity was at issue in the prior proceedings, and that results of DNA typing, if exclusionary, would establish the inmate's innocence. In other words, the Hatch bill contains what I think is a fair and common sense requirement, that innocence be able to be established by such a DNA testing, similar to what I believe the statutes in Illinois, New York, and Arizona provide.

The decision of this committee and Congress on this issue, I think, is an extremely important one, because interpretation of the significance of DNA results, even if testing is actually conducted, can be extremely difficult. For over 100 years, forensic science has provided us an example already, and that, as has been noted earlier, is traditional fingerprints on the end of our fingers.

Fingerprints from crime scenes have proven material in some cases, but, frankly, they're not material evidence in most cases. Charged defendants are frequently excluded from having left fingerprints at crime scenes, that that evidence proves to provide practically no relevant or even -- or probative information whatever.

Most importantly, those exclusions do not normally establish innocence. Examples in biological evidence cases are common -- DNA typing of evidence that may be actually from a husband, a boyfriend, or other consensual partner. Multiple assailants' DNA may, in fact, exclude an individual charged or, in this case, convicted of a crime and yet not establish innocence.

The standard that we will apply in our own office program closely mirrors that in the Hatch suggested legislation. The criteria in that bill, I believe, strike a necessary balance between the interest of society and our communities and the interest in exonerating innocent individuals.

Importantly, the standard set forth in the Hatch legislation, in my view, would allow Fred Day (ph) to receive testing, in the case of the example I gave you earlier, and I think that's a critical standard that that testing, in fact, would be available.

I want to commend the Hatch legislation as well for the economic -- the funding that's been provided as well, but I think, in conclusion, no one should question the benefit that post-conviction DNA testing can provide. The integrity of that same system, however, demands that any decision be based on material evidence, on material evidence demonstrating actual innocence. I think our justice system and the American public, frankly, should demand nothing less.

Thank you.

HATCH: Thank you so much.

Professor Stevenson, we'll turn to you.

STEVENSON: Thank you, Mr. Chairman, and it's an honor for me to be back before this committee. No one in this room, certainly no one who is familiar with the workings of our criminal justice system, could deny that as we sit here today, there are innocent men in jails and prisons in this country. They've been wrongly convicted, and given the rise in the number of people who have been sentenced to prison over the last 30 years, from 200,000 in 1972 to two million today, it's quite likely that there are a lot of men and women who are innocent sitting in jails and prisons today.

In the death penalty context, the recent evidence that we've seen of 87 people being released from death row after evidence of innocence being presented, as we sit here today, it's very likely that there are innocent people awaiting execution, moving ever closer to execution. The legislation pending before this committee is critically urgent in identifying some of those innocent people and preventing greater injustice.

It is not a resolution of the problem, after someone has been in prison for 12 years or 15 years, or been on death row for six years or 10 years, to simply say we now recognize that you're innocent. That's a great injustice. Someone's life has been taken away from them in very fundamental ways. And that's why I'm so pleased that this committee has taken the urgency of this matter and made it a priority in dealing with this very critical problem.

Yesterday, the "Columbia University Report" indicated that in two-thirds of death penalty cases, we've made mistakes. It is not a report that suggests that in sixty-six percent of all death penalty cases the people were innocent. When you consider the fact that we've had thousands of cases in this country where people have been sentenced to death, and in nearly two-thirds of them, their convictions or death sentences were illegally imposed, I think it imposes on all of us the need to begin to seriously question how we are thinking about criminal justice enforcement in this country.

There was a lot said earlier today about how, when we try to improve the workings of the criminal justice system, we necessarily burden the interests of victims of violent crime, and I'd really like to challenge that, because as someone who's lost a family member to homicide, as someone who's seen a family member murdered, as someone who has relatives who have been sexually assaulted and brutally assaulted, we do a disservice to victims when we suggest that protecting the innocent, be they folks who have never had exposure to the criminal justice system or people who are wrongly sitting in jails and prisons is something that victims are against.

Victims of violent crimes and survivors of people who have been victimized by violent crime don't want just anybody convicted for the crime that took their loved one. They want the somebody who actually committed the crime. And what this legislation does today is allow us to move closer to giving them that assurance.

Now, post-conviction DNA testing will do something quite useful. It will allow us to identify those cases where biological evidence can lead to the identification of those wrongly convicted. But it would be wrong for any of us to conclude that post-conviction DNA testing is the answer to the problem of innocent people on death row or in jails and prisons.

In my state of Alabama, we have 187 people under sentence of death. In only eight percent of those cases was the aggravated murder for which someone was convicted aggravated by rape or sexual assault, and it's likely that in even fewer of those cases will there be biological material and DNA testing that will be useful.

In half of those cases, they were tried in the last five years, where, presumably, DNA testing has already been applied. So we're talking about a very small number.

Our review of cases nationwide suggests that less than 10 percent of death penalty cases are even eligible at the conceptual level of being cases where biological material may make a difference. Tragically, many of the innocent people for whom DNA evidence could make a difference won't get the benefit of this bill because, as Mr. Scheck has indicated, we've destroyed the biological materials and rape kits that might lead to those tests. Again, that's why I think this bill is so urgent.

But the critical point that I really want to stress for all the members of this committee is that under neither of the bills that we've discussed today will we advance in any significant way the opportunity to identify the innocent if we do not provide counsel. It would be a mistake for anyone in this room to think we're doing something useful in creating a right or remedy of post-conviction DNA testing if we don't afford that right or match that right with counsel.

The controversy that we've been discussing about what is the requisite showing of what is necessary to implicate a testing underscores the value and the need for counsel to be involved in these proceedings, and in too many states in even death penalty proceedings, that's simply not the case. In my state of Alabama, we have 187 people on death row as I sit here right now. We have some 27 people on death row who do not have legal representation.

After this Congress passed the Anti-terrorism and Effective Death Penalty Act and created a one-year deadline, many of those people are within months of having that deadline permanently foreclose them from having their cases reviewed. We've already had people miss the deadline. I can't tell you what's going to happen to those folks, but I can tell you that if we don't provide for counsel in these cases, none of the remedies that we're talking about, none of the remedies that we're grappling with are going to make a huge difference.

It was interesting to note in the Columbia report that the leading cause of error in death penalty cases is bad lawyer. It's something that we cannot disconnect from our efforts to deal with DNA testing.

No one's going to be able to write a note saying "I want a DNA test" and, based on either bill, get a test. They're going to have to do more than that. And for the illiterate, the mentally ill, imprisoned, disadvantaged people who are usually the victims of these wrongful prosecutions, we cannot expect this bill or either bill to make a difference without providing people with lawyers.

We have, I think, an opportunity as the leading democracy in the world, as a nation that is activist on human rights in the international context to improve our system of justice. But I also think we have an obligation as people who care about justice, people who insist that we do all that can be done to prevent people from being wrongly convicted and certainly being wrongly executed, to take what is offered in the Leahy bill and use it as an opportunity to begin to think more critically about these issues.

Without the counsel provisions in the Leahy bill, we will do very little today, very little. We will not advance this issue at all. By providing counsel, we can not only make post-conviction DNA testing a useful tool for identifying wrongly convicted people, but we might also get to the other people who have been wrongly convicted.

Again, 90 percent of the people who have been innocent on death row and had their cases overturned and been released could not use post-conviction DNA testing. It's a critical issue that I think warrants this committee's attention, and I'm grateful for the opportunity to speak to it, and especially grateful that this committee and the chairman and committee members have taken this issue on. We desperately need your intervention.

My senator, Senator Sessions, has talked about whether things have gotten better. In my state -- our state of Alabama, things have gotten better in a lot of areas. But in the area of post-conviction counsel, things have gotten worse.

In 1990, I could tell you if I were sitting here that we had a resource center that made sure that there were no people on death row that did not have legal representation. Today as I sit here, I have to tell you that we have dozens of people without legal representation.

The state law in Alabama still limits compensation for lawyers in post-conviction cases to $1,000 per case. We cannot advance justice, we cannot effectively deal with post-conviction DNA testing, we cannot get to the core problems of innocent people wrongly convicted until we deal with that problem, and I'm grateful that the Innocence Protection Act has taken that on and matched it with the critical issues that are presented by DNA testing, and grateful for the interest and work of this committee.

Thanks very much.

HATCH: Thank you, Mr. Stevenson.

Mr. Fritz, we're happy to hear your testimony at this time.

FRITZ: Good morning, Chairman Hatch, Senator Leahy, and other members of the committee. My name is Dennis Fritz, and I currently reside in Kansas City, Missouri.

FRITZ: I want to say that it's such a great honor and pleasure to be before this committee today representing all wrongfully convicted people around the world, even, and for unjust crimes that they are currently serving. Actually, before I get into my presentation, I would just like to say that, you know, it's -- you know, unless that shoe is on the other foot, you know, we actually -- we don't realize actually what we're going through.

I mean, we can look at someone else and their problems and their dilemmas, and we can make a judgment, and we can look at this and go forth with our decision making, which is good. But I went through such a devastating time.

As a matter of fact, in May of 1987, I was arrested for a rape and murder that I neither committed nor had any knowledge of whatsoever. I was arrested five years after the crime had occurred, and from that day forward, everything just went straight downhill in the judicial process.

I spent the next 12 years serving a life sentence until I was finally able to prove my innocence, for which I give many, many thanks to Barry Scheck and Peter Newfeld (ph) and the Innocence Project for their many, many efforts in securing not only my release, but other wrongfully convicted people.

My co-defendant, Ron Williamson (ph), as was previously mentioned, was also wrongfully convicted of the crime and was sentenced to death. He had came within five days of being executed.

We were both freed on the same day in April of 1999, after it was proven through DNA evidence that neither of us could have committed the crime. The prosecutor agreed with the defense counsel to dismiss the charges, and, as a matter of fact, the DNA evidence also established who the real killer was. That was a blessing.

At the time of the murder, I was a science teacher and a football coach at a junior high school in Ada, Oklahoma. My daughter, Elizabeth, was 11 years old. I loved my family. I loved my job. Just the fact that I was a murderer and a suspect got me fired from my teaching position. Five years later, I was then arrested.

The detectives then told me they knew I had not committed the crime, but they believed I knew who did it. From the very beginning, I always told them that I was innocent, but, actually, it made no difference with these people. They were bent on conviction. They needed a conviction in this case. It had been five years. It was an election year, and anything that I said -- it didn't make no difference, you know.

My trial began on April the 8th of 1988. To say the very least, it was a total living nightmare. The prosecutor's case was almost entirely built on the lies of jailhouse snitches who got their sentences reduced for testifying against me.

Even the real killer himself was used as a prosecution witness against both myself and the co-defendant. At the time of the trial, no one had even bothered to test his DNA evidence, you know, even though he had been the last one seen with the victim shortly before her death, arguing and shoving her against a car. But no one bothered to test his DNA evidence.

At that time, in 1988, DNA evidence was actually available for testing in my case. The only reason that it was not is because the proper laws were not enacted for that DNA to have been tested. Otherwise, if they had been, I would not have had to endure those 12 years of suffering and misery and pain that not only I went through but my blessed family members did.

That's where the real pain goes. I mean, I was a sacrifice maybe, you know, to see the perpetuation of the advancement of your ideals, your decisions today, and I'll accept that, but, you know, that hurt my family. That disturbs me very much. You know, I'm mad. But, on the other hand, I am happy that this committee has convened today, and that these steps are being made for enactment of laws that definitely need to be enacted.

At the time of my -- after I was convicted, I appealed my case throughout both the state and federal Oklahoma courts. My appeals were denied at every stage of the judicial proceedings.

At the time of my conviction inn 1988, DNA testing actually, like I mentioned, was just accepted by the scientific community. For years, while I was in prison, I repeatedly petitioned the courts to allow me to get the DNA testing done on the crime scene samples. Every time, I was flat-out denied.

By the time I got in touch with Barry Scheck and Peter Newfeld (ph), I had already lost seven court decisions and had just about lost, actually, all hope of ever being a free man again. Twelve long and tormenting years passed after that time, and I did not see my daughter, Elizabeth. I could not bear for her to see actually what was going on in the prison.

The visiting room was so disgusting, you know. I just felt -- I wouldn't allow her to come, so I restricted her visitations, and I spoke with her over the telephone. I knew that she loved me. I knew that she believed that I was innocent, and my mother as well supported me throughout this terrible, hellish nightmare.

I was suffered and subjected to indignities that no person should have ever had to suffer or suffer in the future, let alone being a person who is actually innocent of a crime. The refusal of the state of Oklahoma to compare my DNA with the crime scene evidence was only one of the reasons why I lost all those years of my life.

The other reason was my trial attorney's total ineffectiveness. First, he had no real incentive to defend me, because he had only received $500 for representing me in a capital murder case. Besides that, he had never handled a capital murder case in his life. In fact, he had never handled any type of criminal case whatsoever, due to the fact that he was a civil liabilities attorney.

I wholeheartedly believe that if I had had adequate representation from a qualified lawyer, I would have not been convicted. I would have never been forced to endure these cruelties which Senator Leahy's bill seeks to prevent.

It's more than past time to put an end to these unmerciful travesties of injustice that occur when the truth is hidden or disregarded. I appeal to you, the members of this committee, to enact the laws to fully insure that no human being will ever have to suffer as I did for something of which they are totally innocent.

Thank you.

HATCH: Thank you, Mr. Fritz, and certainly your testimony is very moving to all of us here today, as it should be, and a good message for all of us to take under consideration on this committee. So you've done the country a great service in coming here today, and I've been very moved by your humble testimony, and it means a lot to me, and I sure don't want to see anybody else go through that to the extent that we can prevent it.

Mr. Wooley, we're happy to have you here. You have a very excellent reputation, and we look forward to taking your testimony.

WOOLEY: Thank you, Chairman Hatch, Senator Leahy. It really is truly an honor and a privilege to be here, and I commend the committee for taking up this topic.

Let me introduce myself. My name is Jim Wooley. I'm a partner at a law firm called Baker and Hostetler, but up until January of this year, I had spent 10 years as a federal prosecutor in the Northern District of Ohio, as an assistant U.S. Attorney. Prior to that, I was an assistant D.A. in the Manhattan D.A.'s office in New York. I am also currently an adjunct professor in criminal procedure at Case Western Reserve University Law School.

In 1990 and 1991, I was the prosecutor in a case called United States v. Yee (ph), a homicide case, which is generally or often referred to as the landmark forensic DNA case in this country. The case involved the first DNA test ever performed by the FBI lab.

The DNA evidence was admitted as evidence after an extensive pretrial challenge which was very ably led by Mr. Scheck and others, who, by the way, was appointed counsel and extremely competent appointed counsel in that matter. Because of my role in the Yee (ph) case, I became and remain very active in the forensic DNA community. I was a member of the Ohio DNA Advisory Council, and I'm currently serving on the National Institute of Justice's Commission on the Future of DNA Evidence, along with Mr. Clarke, Mr. Scheck, and others.

I've been asked to testify here today regarding proposed federal legislation which, as I understand it, would provide for post- conviction DNA testing on behalf of federal inmates who were convicted at a time when DNA testing may not have been available. I've seen different versions of proposed and existing legislation on this topic, and it's my belief that a statute addressing this topic needs to be drafted in a manner that allows post-conviction access to DNA testing to innocent federal inmates without overburdening the system with post-conviction proceedings on meritless requests.

Of the existing and proposed statutes I've seen, I believe the statute proposed by Senator Hatch does the best job of striking this balance for the following reasons. I'll say that I believe they all attempt to strike the balance. I prefer the Hatch statute in its effort to strike the balance for the following reasons.

Most importantly, the Hatch bill does provide access to DNA testing for the innocent federal inmate who was convicted at a time when the DNA evidence or testing may not have been available to prove his or her innocence. I have reviewed other statutes that provide for post-conviction DNA testing on a lesser standard than the Hatch bill, but I've not yet seen one that would give a truly innocent federal inmate relief in a case where the Hatch bill would not.

Number two, the Hatch bill allows an inmate to make a motion when evidence, quote, "was not the subject to DNA testing requested because the technology for such testing was not in existence at the time of trial." Other proposed statutes draw no distinction between inmates who have pleaded guilty and inmates who may have been convicted after trial. There is equal access to both classes of inmates.

I believe it is important to draw the trial guilty plea distinction here in the context of a proposed federal statute. I believe I may be the only former or current federal prosecutor who's testified on either of the two panels, and I'm very familiar with Federal Criminal Rule 11, which, as I'm sure you all know, mandates a very thorough inquiry by a federal judge before any guilty plea can be accepted.

As part of that inquiry under Rule 11-F, the court must satisfy itself that there is a factual basis for the plea. In my 10 years as a federal prosecutor, the factual basis was invariably established by the defendant admitting in open court the he or she engaged in the conduct that he or she was accused of committing.

Often, this admission is under oath and includes the defendant describing in his own words -- his or her own words exactly what they did. I believe that a federal inmate who has confessed his guilt in open court while represented by counsel should not have the same access to post-conviction DNA testing as an inmate who has consistently maintained his or her innocence, but was convicted after a trial, and I think it's an important distinction in the context of a federal statute.

Number three, the Hatch bill provides a reasonable time limit of two and a half years from the date of its enactment to allow federal inmates to file requests for post-conviction DNA testing. In 1996, Congress amended the Habeas Corpus statute to incorporate a one-year time limit on collateral attacks on federal convictions.

I think that amendment reflected the sentiment that it's appropriate to place reasonable time restrictions on post-conviction claims. I think that thinking also applies here. If there are innocent federal inmates who were convicted before DNA was available, even if they were convicted 12, 13, 14 years ago, those cases shouldn't be barred from consideration, but a reasonable window of time of two and a half or three years, or whatever, to have those matters considered, I think, is appropriate.

WOOLEY: Number four, the Hatch bill provides that a court should not order post-conviction testing if after the review of the record of the trial, the applicant -- of the applicant, the court determines that there is no reasonable possibility that the testing will produce exculpatory evidence that would establish the actual innocence of the applicant.

This gives the court the ability to deny a post-conviction request if it determines that the DNA testing would not be material to the finding of guilt. Obviously, there is no need to burden the system with mandatory post-conviction DNA testing in cases where the results of a DNA test could have no bearing on the finding of guilt. In imposing a materiality requirement, the Hatch bill is consistent with the Illinois statute, the New York statute, and also well settled legal precedent that imposes a materiality requirement in other settings involving post-conviction requests for relief.

I've seen other statutes, including the Leahy statute, that would mandate or require post-conviction DNA testing in cases upon a showing merely that exculpatory DNA testing -- an exculpatory DNA test would be relevant. Relevant evidence covers a very broad spectrum, much broader than relevant and material evidence.

For example, it would be certainly relevant to show that a federal inmate convicted of extortion did not lick a postage stamp on an envelope that contained an extortionate demand, but it would certainly not be material if the other evidence in the case included legal wire tap recordings of the inmate's extortionate demands. There's no basis in law or logic for abandoning the concept of materiality in the limited context of a post-conviction request for DNA testing.

In this regard, I should also note that the proposed statutes that mandate DNA testing, without a finding that it would be material, also draw no distinction between the trial and a guilty plea, which I think is important in the federal system. The combination of those attributes of a statute would allow a federal inmate who has confessed and pleaded guilty in open court to force the system to conduct DNA testing even if the results would not prove his innocence, but would instead produce evidence that would merely be relevant to his claim. In other words, the federal extortion inmate would be entitled to mandatory DNA testing of the postage stamp, even though he pleaded guilty, and his extortionate demands were lawfully tape recorded.

In closing, I would say that the Hatch bill does an excellent job of allowing access to post-conviction DNA testing to innocent federal inmates without creating the possibility that the system could be burdened with meritless requests that would obscure the ones with merit, and that's why I support the Hatch bill. And I thank you for your time and your consideration.

HATCH: Well, thank you. I want to thank this whole panel for being here. I feel badly that I have to leave. I'm going to turn the committee over to Senator Sessions to begin the questioning, and then he'll go to Senator Leahy.

But this has been a very good panel. Both panels have been excellent, and we're going to try to get these problems resolved. We need your help. I'd like to get it out of the realm of politics. I'd like to get it out of the realm of pro-death penalty, anti-death penalty.

I'd like to do what is logical, just, and right, and if we can do that, we're going to have a -- you'll have a bill this year. If we can't do it, if it's just another big Broadway of trying to get rid of the death penalty, we're going to go nowhere. Or if it's just a bill that is trying to implement the death penalty, we're going to get nowhere.

So I challenge you to help the committee. Each of you has your belief about the death penalty, but, to me, that's not the real issue here. The real issue is how do we do justice, and how do we implement justice, and how do we insure that justice is going to occur.

So I'm challenging you to help us to do that. I think Senator Leahy and I work very well together on many matters, and I intend to work very closely with him on this one, and I'd like to get it out of politics, if we can. And there's been a little bit of a temptation here to put it into politics by some, but I'd like to get it out of it. Justice is more important to me than anything else.

LEAHY: Mr. Chairman?


LEAHY: If I might say, I couldn't agree with you more about why not keep it out of politics. That's why in my legislation we have both Republicans and Democrats on it. The 75 people who have joined the similar legislation in the House, the LaHood-Delahunt, they have both -- or 45 -- they have both Republicans and Democrats on that.

We have both supporters and opponents of the death penalty on it. That's why I've spent nearly a year in putting this together to make sure that we would have both those who support the death penalty and those who oppose the death penalty, both Republicans and Democrats, conservatives and moderates and liberals on it. We have tried very much to keep it out of politics.

HATCH: Well, let me ...

LEAHY: When I've been asked questions about this, even to interject this any way into the presidential race, in each of my interviews on that, I have stated very clearly this is not intended for it. Now, the assistant attorney general from California spoke of the Leahy bill -- one of the reasons I corrected her was so she would make sure she understood. This was not just a Democrat bill. It's a Democrat and Republican bill, as it is in the House.

HATCH: Well, there's a lot of Republicans that don't think it's a Republican bill at all, and there are some Democrats that don't think it's a Democrat bill. So the point I'm trying to make is that we've had lots of criticisms of both bills here. That's the purpose of this. It isn't to sit here and try and file our own bills. I'm not trying to do that. I filed it -- my bill.

We're going to file our bills to create the discussion, because there are differences between these two bills that are very significant, and I think some of the criticisms of the Leahy bill and some of the Hatch bill we have to look at. And what I want to do is come up with a bill that is truly bipartisan in every way and gets 100 percent of the people, if we can, or at least a high percentage of Democrats and Republicans to vote for, and that's what I want to do. And if we can do that, I will feel like Senator Leahy and I and others on this committee, including the distinguished senator from Alabama who plays a significant role in this area, will have done something really worthwhile for the country.

So, again, I'm calling for everybody to put aside politics -- one bill over another, and let's just see if we can come up with a bill that literally will solve the problems and yet be fair to both sides, prosecutions and defenses, and, hopefully, put an end to some of these -- certainly prevent people like Mr. Fritz from ever having to go through that kind of suffering again, you know. Your testimony is probably the most relevant here today, because you're the one that's really suffered from an injustice in the law.

FRITZ: Still am.

HATCH: I think of these people that Mr. Baird brought up. Mr. Criner (ph) -- if the way he's described it is right, that's despicable that he's still in jail, and, frankly, I don't care who wants to make a political hangout of what. All I can say is that I think both of our presidential candidates would agree with what I'm saying here. So I don't want to see anybody trying to make hay against one or the other candidates. Let's ...

FRITZ: Excuse me, Mr. Hatch. You know, I've heard mentioned here a couple of times today talk about state sovereignty ...


FRITZ: ... and which -- you know, I'm very respectful of that myself, you know. But, also, I think one thing that I really see that is just as equally important is judicial economy, you know, the courts, moving the courts and getting these cases going and, you know, the financial considerations that several members spoke about is going to have to take place, you know, to initiate this. But, you know, I think the only way that something like this is going to truly work is through a federally funded bill.

HATCH: Well, we've got that point, and, of course, that's what we're talking about, and I hope we can prevent convictions like yours from ever happening again. I would like to do that. The history of this world is the history of some injustice, and a lot of us are trying to work through that and trying to find ways of overcoming injustice.

And I just want to thank you all, because I think these two panels have been just excellent, irrespective of what our differing points of view are on the death penalty, and, to me, that's important, but almost irrelevant to this discussion. We want to make sure that we can do what's right.

So let me turn the time over to Senator Sessions, if you can take over and be the first questioner.

SESSIONS: I thought I would ask a couple of questions I know Senator Hatch was concerned about. Two of our witnesses, Mr. Scheck and Clarke, worked on DNA evidentiary issues in the O.J. Simpson murder prosecution. Mr. Scheck worked on behalf of Mr. Simpson, and Mr. Clarke worked on behalf of the state of California.

So I have a question. One of our panelists was convicted -- Mr. Fritz -- before the DNA technology was commonly available. As we all know, he was released last year after DNA tests revealed that the biological evidence found at the crime could not have come from him.

Is there any doubt that Mr. Fritz could have obtained post- conviction DNA testing under the standard in the Hatch legislation?

SCHECK: Well, I think that one good thing about all of this is that, you see, Mr. Clarke and I in our DNA commission are in agreement. If Mr. Clarke and I sat down and looked at the cases, I think he'll tell you as well, 99 percent of the time, 99.9 percent of the time, we'd agree on how to do this.

I think the real problem is that, you know, we really don't have a lot of training for lawyers, certainly in the forensic area, and we all know the terrible problems of counsel in capital cases and, frankly, in non-capital cases, in order to get this done. The problem, as I had mentioned to the chairman, is that, arguably, one could say that in Dennis' case -- that in 1988, I think Oklahoma was the first state -- Lifecodes (ph) introduced DNA testing in the state of Oklahoma, so it was actually around then.

There's other cases in the state of Oklahoma -- the same thing happened. There's a guy named Robert Miller, who's profiled in our book, who, again, was sentenced to death for the worst and most brutal kind of rape-murders of elderly women, and DNA testing proved that he was innocent and also identified the person who committed the crime in the state of Oklahoma. He tried to get DNA testing, too.

SESSIONS: OK. I know. All right. Let me ...

SCHECK: The answer is under that provision, there is serious doubt that Dennis could have gotten the test, and, frankly, it took him over four years of petitioning the courts to get it. So under the statute of limitation, there is, again, a difficulty here, in other words, the new statute of limitation that says within a certain number of years -- I think the latest version I saw was 30 months -- you have to make an application to get the DNA test and get all the records together, and that would be difficult in Dennis' case and many of the others.

SESSIONS: Well, Mr. Clarke, I understand at the trial of Mr. Fritz, the identity was an issue, and the state's evidence rested on biological evidence, so under the Hatch bill, certainly, would you agree that he would have been able to obtain relief?

CLARKE: There's no question in my mind. As I was becoming familiar with Mr. Fritz's case, including through what he was describing today, I was thinking of our own in-office review program, and this is the type of case that would stand out, I think, as clearly one under the program that we've instituted that, again, will mirror the standard described in the proposed Hatch legislation, that this is a case that would cry out for DNA typing -- an individual who claimed all along it wasn't me. The question is is there evidence that could help resolve that clearly, and I think this is exactly the type of case that the Hatch legislation would demand testing in.

SESSIONS: Mr. Wooley, perhaps, and Mr. Scheck, in the Hatch legislation, you've got a thirty-month requirement to get your request in, I guess -- filed. Let's talk about that a little bit.

In one instance, it doesn't seem to bother me whether it was indefinite, because as each year goes by, fewer and fewer people are going to be available to claim it. So at first blush, it doesn't. But it does suggest to me that if you have an unlimited time, first, people would be delaying in seeking the request, and the evidence may be less available, but, primarily, it could be used as a last minute tool to file on the eve of a date set for execution to delay execution.

Mr. Wooley, would you comment on whether or not you could agree to anything other than a 30-month rule in your theory there?

WOOLEY: Senator Sessions, I look at it as a former federal prosecutor. In the federal system, I think it's a very reasonable time limit. What it's not is a statute of limitations, and I think at the first reading of it, some people look at it and say it looks like a statute of limitations.

But the fact is the Hatch bill would allow someone who was convicted at a time when Mr. Fritz was convicted to bring his matter before a federal judge. It would just say from the date of the enactment of the statute, you have 30 months to try to get that together.

Within the federal system, where I think we're going to see a very limited number of situations that fall in this category, given the different nature of federal prosecutions, I think it's a very reasonable, workable time limit.

WOOLEY: I wouldn't begin to opine about how that would work in different state systems where I've never practiced.

SCHECK: I think that's the big difference, because the bill is really directed, when you get down to it, to the states, and in the states, our DNA commission reached the judgment after much debate -- and we were all law enforcement -- that a statute of limitations at 30 months wouldn't make sense, because it just takes so long. The older the case, the more difficult it is to gather the transcripts, get everything together.

SESSIONS: But the time would commence after you make the claim, does it not, not after the judge makes a ruling.

SCHECK: Well, no. You have to be able to meet ...

SESSIONS: And the 30 months is -- you have to make a claim, commence the process within 30 months.

SCHECK: We're talking about people who are indigent. Some of them could be mentally retarded, in many instances. Take Earl Washington (ph) in Virginia who's going to get tests that I have a high degree of confidence are going to show he's innocent. That's another case profiled on the "Frontline" special tonight.

You really can't expect that people are going to be able to get the materials together, particularly without counsel, as Mr. Stevenson says, with any particular time limit. The bottom line is -- and let me try to be non-political about this -- I think Governor Bush made the wrong call -- right call, I'm sorry -- in the McGinn (ph) case, which is exactly this kind of case, because I came in within two weeks.

The lawyers previous to that had never been able to focus the presiding judge on the appropriate test because they didn't understand them, frankly. They never said we can have an STR (ph) DNA databanking test done on semen in the underwear, and a mytochrondrial (ph) DNA test done on the pubic hair that would be determinative perhaps of guilt or innocence, but certainly as to whether or not he was death eligible.

And there were all these appeals that went on, and nobody really, frankly, had the training or understanding to make that clear, and then when the presiding judge saw it, he made the right call, and it went to Governor Bush, and he made the right call. And that's -- you know, I have real doubts under the Hatch statute, as written right now, whether McGinn (ph) would get relief.

But I think it's appropriate, as Governor Bush decided in that case, that he get relief, and we have to draft these statutes so that kind of -- and I have no idea how it's going to turn out in his case, but watch Earl Washington (ph) in Virginia where Governor Gilmore just two weeks ago finally agreed to do the testing. I have a high degree of confidence he's going to be exonerated based on the prior results, and that man was sentenced to death.

SESSIONS: Well, I would just say that, as Supreme Court Justice Powell, writing a number of years ago said, a pattern seems to be developing in capital cases of multiple review, which is true. Before anybody's ever executed, almost always gets -- it always gets to the court of appeals, federal court of appeals, and the state supreme court, often two or more times -- but, anyway, patterns of review in which claims that could have been presented years ago are brought forward, often in piecemeal fashion, only after the execution date is set or becomes eminent. The federal court should not continue to tolerate, even in capital cases, abuse of the process.

So I guess if we could figure out a way that -- perhaps that -- other than a 30-month statute to make sure we're not ending up with a device to piecemeal and delay cases even longer than they are today, I might be willing to listen. But the 30 months seems to me an adequate amount of time.

Senator Leahy.

LEAHY: Thank you.

Mr. Clarke, you're a member of the National Commission on the Future of DNA Evidence. Do you support the commission's recommendation that there should be no statute of limitations on claims of post-conviction DNA testing?

CLARKE: Well, I think one of the items that we looked at in the context of post-conviction review was a question of whether there should be a provision where -- and in the ultimate version of it, there is -- that a court, in deciding whether or not to grant relief, that is, grant DNA testing, must reach a threshold decision -- is this for purposes of delay or not? In other words, is this the fifth, sixth, seventh federal habeas corpus petition in a state capital verdict?

That's obviously much of what was addressed by Congress in terms of death penalty habeas corpus reform and so on. I think that provision, in not only our recommendations, but also the model statute that our commission provided, helps account for that.

There is not a strict time limit contained in our recommendations and model statute. There is, however, a provision that, in a sense, deals with that, which is designed to eliminate the use of such a device simply to delay execution.

So I think in many respects that solves it. I don't have an objection to either a fixed amount or a provision similar to the one that we utilized in our model statute.

SCHECK (?): Senator, if I could just comment on that, I do think it's worth acknowledging that to the extent that we put restrictions on when these petitions must be filed, we have to increase the resources we're going to allocate in the defense community to manage them, because the community of people who are going to actually get the most requests are defense communities. They are going to get 100 requests and have to decide among that 100 requests which of them meet the guidelines.

And under the Hatch bill, unless there's going to be some allocation for counsel, Mr. Fritz would not get relief. In my state of Alabama, there is no place for Mr. Fritz to write.

Who is he going to write for the assistance? We don't have an appellate defender office. We don't have a post-conviction defender office. He'd have to write a private lawyer and convince that private lawyer, for $1,000, to look into his case, and I suspect it would take him longer than 30 months, in many instances -- and certainly a lot of people -- to even find that lawyer.

And so I think it's fine for ...

LEAHY: And then to be assured that that lawyer was a competent lawyer and not ...

SCHECK (?): Well, absolutely.

LEAHY: ... and not one -- as you and I both know, around courthouses, there are some lawyers who -- basically, their office is the pay phone booth in the courthouse.

SCHECK (?): Well, that's absolutely right. I think that if we provide people with adequate representation, as Senator Sessions suggests, you know, this thing can exhaust itself over a period of time.

In several years, we should see, you know, a very small number of these kinds of requests being made, because people have either disqualified themselves by having the technology available at trial, or they've exhausted these remedies. Innocent people on death row in jails and prisons are not anxious to stay in jail and prison. If you afford them this remedy, I guarantee you the innocent people will demand testing as soon as possible. They have no interest to stay in prison longer kind of waiting to see what happens.

LEAHY: Well, let me -- one, I agree with you on that, and let me just follow-up, then, in a real-life situation with Mr. Fritz.

Mr. Fritz, you were a science teacher, a coach, by nature of that position, a respected member of the community, a family man, and then, as you've testified, your world came crashing down on you when you were charged with a crime that you did not commit when the Oklahoma authorities said, well -- basically put yourself at the scene even though you hadn't been there.

And then once convicted on -- as we now all acknowledge, both the prosecutor and everybody else acknowledges was a mistake, you asked the state of Oklahoma to have your DNA tested. In other words, you wanted to say, look, I'm willing to take this chance. I'll prove I'm not the person. Why did they say no?

FRITZ: Well, every time I petitioned both the state and federal courts for the motions to test and inspect the DNA evidence, they always answered back that I had never raised a constitutional claim, and I always replied, well, how unconstitutional is it to keep an innocent man in the penitentiary, you know. I always, you know, immediately, you know, briefed all kinds of different labeled motions that I would -- you know, in my unskilled desire to get the testing done ...

LEAHY: You weren't able to get an attorney?

FRITZ: No. As a matter of fact, the only attorney that I had as a matter of right was after my state direct appeal, and since I didn't have no money, I couldn't afford an attorney, so I worked on my own case from that point on.

LEAHY: So, Mr. Fritz, when the court said it's not a constitutional claim, you -- I don't want to put words in your mouth, but would you say that perhaps you took a less abstract view of it than they did insofar as you were the one that was locked up.

FRITZ: Most definitely.

LEAHY: You were the one who was innocent, and you were the one that thought that perhaps that affected your constitutional rights.


LEAHY: Is that a fair statement?

FRITZ: I could actually see what was happening. It was just a procedure whereby me being a pro se litigant, I got the cursory review that I was expecting.

No real attention was ever paid to my case circumstances or my challenges that I made, and it -- actually, where my mistake come in was that I argued the sufficiency of the evidence all the way through to the United States Supreme Court under the weight of the evidence, because I didn't know that after you get out of the state courts, you have to argue the elements. So that was their hole in the fence.

LEAHY: You aren't a lawyer.


LEAHY: Mr. Scheck, Chairman Hatch's proposal says DNA testing is allowed only if the technology was not available at the time of trial. One, when did DNA technology become available, and how would this threshold requirement have affected Mr. Fritz in his case or these other people you've helped exonerate?

SCHECK: I think in almost virtually every case, one could say, in theory, DNA testing was available at the time of the trial, and DNA testing has changed. We have more discriminating tests than we had in the past.

I think that the Leahy-Smith bill accurately captures the balance and is consistent with exactly what we put in our DNA commission report, in that you want to make a showing that there is a test, an accurate test available that could be dispositive of the issue of guilt or innocence. And none of us are here suggesting that in a case where somebody has done DNA testing, which is pretty incriminating, like an RFLP (ph) test, that that person is never going to get the test.

We are saying, all of us here -- and I'm putting in Mr. Wooley and Mr. Clarke -- that if there was such a -- what they call a DQ- alpha test, which wasn't very discriminating, like in the case of Tim Durham (ph) of Tulsa, Oklahoma -- that a retest with a more discriminating technology can prove innocence. And that's the kind of balance we can strike, and I think it's accurately and correctly put in the Leahy-Smith bill.

And the language, unfortunately, in the Hatch bill, in theory, read literally, could preclude virtually every one of our clients from getting the test, and the problem, I have to say, is that, you know, let's be frank -- in cases where there were heinous crimes committed, in many jurisdictions where the prosecutors and the judge are either running for re-election or are heavily invested in the verdict, nobody really likes looking into these cases and doing the DNA tests. They really don't in many instances. Some people do.

We have our commission recommendations that say people should consent to the DNA testing, notwithstanding the statute of limitations. Fifty percent of the time, the prosecutors in appropriate cases stand up and do justice, right, like my friend, Woody, here.

SESSIONS: Mr. Scheck...

SCHECK: But a lot of times, they don't, and that's why we need real requirements and a standard that's reasonable.

SESSIONS: Senator Feingold.

FEINGOLD: Mr. Chairman, briefly, I was intrigued by your reference to Justice Powell, because at the end of his career, after he saw this mess with the death penalty, the one thing he said he would do over, basically, was he would get rid of the death penalty. That's how he ended his career, even though he was one of the architects of the federal death penalty.

And I understand the chairman -- Chairman Hatch's admonition about politics with regard to this issue. We have to be very careful. The problem is that one of the places where the death penalty is terribly active happens to be the state of Texas, and it's simply not possible for us to talk about this problem without, on occasion, referring to what's going on in Texas in some of the cases.

And in the spirit of just making the record correct, I want to make a point with regard to this issue that the chairman raised, which is the requirement in Texas that there be two counsel as somehow an answer to the question of adequate representation. Take the case of lawyer, Joe Cannon (ph).

In 1979, when Mr. Carl Johnson (ph) was convicted of murder and sent to death row by Texas state court, during the trial, his lead counsel, Joe Cannon (ph), was often asleep. Now, Mr. Cannon (ph) had co-counsel, as apparently required by Texas law, a Mr. Phillip Scardino (ph), who was two years out of law school and recalls the whole experience as, quote, "frightening," unquote.

He said, quote, "All I could do was nudge him sometimes and try to wake him up," unquote. Johnson's (ph) appellate attorney, David Dow (ph), said the trial transcript gives the impression that there was no one in the courtroom defending Johnson (ph). It, quote, "goes on for pages and pages, and there is not a whisper from anyone representing him," unquote.

And Mr. Johnson (ph) was executed in 1995, the 12th execution under Governor Bush's period as governor. It is literally cold comfort to Mr. Johnson (ph) that there is this second requirement. And I would add that Mr. Fritz here would not have had the problem of his incompetent counsel resolved by the Hatch bill. That isn't dealt with by the Hatch bill, so the bill is inadequate in that regard.

FEINGOLD: A second point for the record -- some have suggested that the Hatch bill is adequate and it's OK, but as long as somebody has happened to plead guilty, that that should be a bar to -- in some cases to future DNA tests. Let me just suggest that, in some cases, people might plead guilty to avoid the death penalty. Maybe they'd take life imprisonment out of fear that they'd get the death penalty.

I think we have to at least look into whether that's a very wise provision.

SCHECK: Senator Feingold, I should add that there is a case, David Basquez (ph) in Virginia, who was a mentally retarded man who pled guilty, took a life sentence, and DNA proved that he did not commit the crime, but a man named Spencer (ph), who was ultimately executed in the state of Virginia for a series of rape-homicides. So that does happen.

FEINGOLD: I thank you for that, and I just want to note it for the record, these two are specific examples of particular points about how we draft this legislation. It's not about politics. It's about trying to make this really work.

And, Mr. Scheck, I want to thank you especially. I want to say that I've read every word of your book already. It's a wonderful ...

SESSIONS: Senator Feingold, if I could make one response -- and I'll give you extra time -- as I understand it, this trial in 1979 was before the counsel law passed, and Governor Bush did sign that law. But ...

FEINGOLD: I appreciate the point ...

SESSIONS: ... the point is not invalid that you made, but I did want to ...

FEINGOLD: That's right, because if it's just ...

SESSIONS: ... make that clear to the record.

FEINGOLD: Mr. Chairman, if it's just a question of two counsel, that doesn't mean you've got adequate counsel. As that example ...

SESSIONS: One of them ought to be awake if they've got two of them.

FEINGOLD: Well, it makes it more likely ...

SESSIONS: Both of them ought to be awake.

FEINGOLD: ... as I say, cold comfort for the gentleman who's no longer with us.

Mr. Scheck, I want to thank you for this book. It was truly an eye-opening examination of the failings of our criminal justice system. I commend you and Peter Newfeld (ph) and Jim Dwyer (ph) and you and your colleagues at the Innocence Project for what you've contributed, and it's been very helpful ...

SCHECK: Thank you, sir.

FEINGOLD: ... in regard to all that we've done. And I just want to ask one question -- because I know it's very late, and I thank the chairman -- of Mr. Stevenson.

I understand that you often speak of the problems of discrimination in our criminal justice system and, in particular, in the administration of capital punishment. You mentioned that topic only briefly in your written testimony, and I thought I'd just give you a minute or two here to say a little bit about what the committee should know about this and whether the Innocence Protection Act addresses the problem in some way.

STEVENSON: Well, there are obviously a lot of factors that we can identify that are common in cases where innocent people end up wrongly convicted. The Illinois review, for example, showed that in 33 of the cases where people had been sentenced to death, the lawyers had been subsequently disbarred or disciplined for bad lawyering.

We know that there's this problem of using jailhouse snitches or informants and witnesses who are inherently unreliable. We know that there is this problem of suppressing exculpatory evidence and misconduct. The dynamics surrounding many of these capital cases, where everybody's invested in getting the right result, are very compelling.

I represented a man who spent six years on death row for a crime he didn't commit where he was actually placed on death row for 15 months before going to trial, and it was justified by the atmospherics that a capital case sometimes creates. And then there is a problem of race. In 80 percent of the cases where people have been executed in my state of Alabama, they were tried by juries that grossly under- represented African Americans.

It's not a southern problem. Illinois made the same finding with regard to racial bias in jury selection in those proceedings. My office has been involved in 23 cases where courts have reversed capital murder convictions after finding that prosecutors exercised pre-emptory strikes in a racially discriminatory manner.

And I think if we're going to comprehensively deal with this problem of innocence, we've got to be thinking about all of these issues, because when we look at the capital context, and we see that only 10 percent of the 87 people who have been released have been released on DNA evidence -- that there are other factors that explain the other 90 percent that are critically important if we're going to make a difference.

FEINGOLD: Thank you very much.

Thank you, Mr. Chairman.

SESSIONS: Thank you, Senator Feingold.

Some progress has been made, Mr. Stevenson, and I think you would recognize, subsequent to Batson (ph), which was the requirement by the United States Supreme Court that judges scrutinize jury strikes of a prosecutor -- and some of these reversals, I assume, are based on the Batson (ph) Supreme Court ruling that you obtained?

STEVENSON: That's correct, and, in fact, almost all of them are. Before Batson (ph), there had been no opportunity to bring these issues to court, and they've all been subsequent to Batson (ph). I think Batson (ph) has made a huge difference.

Unfortunately, because of the way in which these proceedings take place, now what happens is a prosecutor has to give a race neutral reason for explaining why people of color have been excluded. And, unfortunately, in too many places, that hasn't solved the problem. It's just made jury selection a lot more entertaining, because you get these wonderfully creative reasons about why people are being excluded, which, you know, we continue to believe are pretext.

But it has advanced this effort. I think we've made some progress on this issue, but I think there's a lot more progress to be made.

SESSIONS: It's my observation, post-Batson (ph), that juries probably over-represent the African American community on the jury. In other words, you'll tend to have, routinely, a larger percentage of the jury that's African American than in the community in Alabama. Would you agree with that?

STEVENSON: Well, I think it really depends on where you are. You know, we just had an execution in the state of Alabama where the prosecutor, prior to the execution, admitted that pre-emptory strikes were used in a racially conscious manner.

In that particular county, Russell County, no one has ever been tried in a capital case where the representation of African Americans has been proportionate to the community percentage. That's a county that's 40 percent black. They've never had a trial jury with more than one African American on it.

SESSIONS: That case would have been tried prior to Batson (ph).

STEVENSON: No, it was tried after Batson (ph).

SESSIONS: The conviction was ...


STEVENSON: ... took place after Batson (ph) as well, but Batson (ph) does not apply to any case that was not tried or pending on a direct appeal after -- before 1986.

SESSIONS: I would have thought that would have been a good basis for appeal.

STEVENSON: Well, we thought so, too, Senator.

SESSIONS: Well, a lot of things have happened. The legislature's improved and narrowed their statutes for death penalties. Congress has passed federal laws that are affected, and I think we are -- should be constantly conscious of the possibility that prejudice or other factors, other than evidence of guilt or innocence, enter into a case, and I think that's important.

Mr. Fritz, thank you for your moving testimony. That strikes at the heart of what our justice system is about. It ought to cause all of us to pause and think. Those of us who have been in the prosecuting business for a long time ought to really think about it.

One thing I would mention with regard to the time limit, I think, Mr. Stevenson, you are correct. An innocent person is going to promptly demand his DNA evidence as soon as he feels like he has a right to get it. But a person who's guilty may use that, waiting until the last minute, as a delay, and if we could deal with that possibility, I would be open to working with Senator Leahy on somehow maybe getting around the 30 months rule.

Mr. Scheck, you shared in your book some comments about eye witness testimony. I've seen two cases, one of which was in federal court when I was assistant United Stated Attorney, that turned out to be an innocent person. And a person robbed a bank, he had a certain briefcase and a pistol, and he was identified in photograph display, and the individual was arrested and was brought in.

Sometime later, all five bank tellers identified him. Sometime later, an individual was caught in nearby Pensacola, Florida, with a briefcase with a latch that didn't quite open, a chrome-plated revolver, and a briefcase of money that came from the bank, and we held a line-up, and two of the tellers still picked out the wrong guy, and three of them picked out the correct guy.

I don't know that there's any way we can deal with that. Sometimes I think maybe a jury charge is -- a cautionary jury charge might be appropriate, but when you've never seen a person before, and you're having to make an I.D. under stressful circumstances, there has been some history that errors have occurred.

You mention that in your book. Do you agree with that?

SCHECK: Oh, absolutely. There's no question that the mistaken eye witness identification is the single greatest cause of the conviction of the innocent. We found that in our study in actual innocence of the post-conviction DNA exonerations.

Historically, that's always been true, and I appreciate the fact you mentioned five eye witnesses in your case. Kurt Bloodsworth (ph) was a man who was sentenced to death in Maryland, and there were five eye witnesses that said he committed the rape-murder of this -- you know, a little girl, and DNA testing proved him innocent.

We actually have, Senator, some suggestions that DNA teaches us. That's why these post-conviction DNA cases are so important. There is a Justice Department -- an I.J. report, a guide for law enforcement on eye witness evidence, that sets out some recommendations that I think would greatly reduce the conviction of the innocent without, in any way, reducing correct identifications.

It's a real series of recommendations here that advances justice, and that's why this class of cases -- be generous to us in our ability to identify these miscarriages of justice with DNA. We'll learn a lot from the system about the system and how to fix it.

SESSIONS: Well, I agree. It's just scary, if that's all you have, is an eye witness. There's one other case that I knew, and I talked to the mother -- a convenience store robbery. The young man was at her home, and he came outside, and the victim identified him, and he was tried and convicted, and he was in the home with her all night, and she knew he didn't do it.

And, eventually, they overturned the conviction and he was released, but he served, unfortunately, some time in jail. But that was an eye witness identification that's somewhat troubling.

UNIDENTIFIED SPEAKER: Actually, in that vein, Senator Sessions, if I might, I think one of the benefits of this experience has been a -- I'll call it healthy skepticism that jurors have about eye witness identification. I mean, there's an expression that I'm sure you're familiar with and we're all familiar with who have tried cases before -- give me a good circumstantial evidence case any day over eye witness identification.

SESSIONS: Exactly right. You give me the briefcase, the pistol, and the money from the bank, and you can have your -- somebody saying that's the guy. And, in fact, both of those people looked alike when they were put in the line-up. They had the same receding brown hair and receding hairline and the same thin features. It was not exactly, but you could see how a good -- a teller with good faith could make an error.

I would offer into the record a letter to this committee from the National Association of Attorneys General, signed by 30 attorney generals, asking us to be cautious with the Leahy legislation, and so I'd offer that into the record.

Anything else you have to say, Senator Leahy?

LEAHY: I do have an item.

SESSIONS: There's a vote going on, I believe.

LEAHY: We had one witness that we'd asked to have before us -- was Calvin Johnson (ph). He was exonerated by DNA after 16 years in prison. I will put his handwritten letter in the record. But let me just take a moment to read from the -- after he speaks about being released when they found they had the wrong person -- the Innocence Project released him on DNA evidence. This is in the last part of his letter.

"But at 42 years of age, I have so much catching up to do. Where would I have been if those 16 years had not been stolen from me?" -- the 16 years he stayed in prison. "Would I have a family of my own? Would I own my own home? Would I have money saved for my children's future? Could I go to a bank and obtain a loan? My answer is yes. And now after 16 years with no family of my own, no home of my own, no real credit established, all I want is the opportunity to fulfill my dreams, to help my parents in the later years of their life, to live the American dream, and to be a productive and active citizen in our society.

"Frankly, being innocent, being locked up, whether facing the death penalty or life imprisonment, being in the situation Mr. Fritz was, being in the situation Calvin Johnson (ph) was, I suspect if that happened to any member of the United States Senate, he or she would probably go insane," and I think that we owe it to all these people to do the right thing.

And, Mr. Stevenson, you know, there's some suggestion the appropriate standard for counsel is the standard announcement of the Supreme Court in the Stripling (ph) case. Do you feel that?

STEVENSON: No. I think we have to do better than the way in which that decision has been interpreted, and even the court, I think, is beginning to rethink that, as the most recent decision handed down a few months ago suggests. We can do a lot better, and I don't think there's much disagreement about how we can do that. It's just can we get the resolve to make it happen.

LEAHY: Thank you. And I'll put in the record a memo of my own, Mr. Chairman, saying my bill does respect state sovereignty and does not violate any federalism principles.

SESSIONS: All right. I think it's time for us to go vote. We've got just a few minutes. And I would just conclude by saying something I think is fundamentally important for the American people to understand.

In the overwhelming number of cases that come forward, there is strong to overwhelming evidence of guilt. There are some that are close calls. I think, in some ways, if I could have a magic wand, I'd focus more on the close cases than we do on the others.

But every case now is provided with attorneys. They go file sometimes 15, 16 years -- we had two executions in Alabama when I was attorney general. One was 15 and one was 18 years in the making, with appeals going on for that long.

I think we need to bring finality to the cases in which there is powerful evidence of guilt, and we should be open to evidence that would indicate some may not be guilty, and I think that's the philosophy we ought to take.

Thank you very much. It was an excellent panel.


Unknown - Indicates speaker unknown.
Inaudible - Could not make out what was being said. 
off mike - Indicates could not make out what was being said.


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