[Senate Hearing 110-873]
[From the U.S. Government Publishing Office]
S. Hrg. 110-873
OVERSIGHT OF THE JUSTICE FOR ALL ACT: HAS THE JUSTICE DEPARTMENT
EFFECTIVELY ADMINISTERED THE BLOODSWORTH AND COVERDELL DNA GRANT
PROGRAMS?
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
JANUARY 23, 2008
__________
Serial No. J-110-69
__________
Printed for the use of the Committee on the Judiciary
COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Michael O'Neill, Republican Chief Counsel and Staff Director
U.S. GOVERNMENT PRINTING OFFICE
51-813 WASHINGTON : 2009
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C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of
Delaware, prepared statement................................... 67
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 23
prepared statement........................................... 78
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 131
WITNESSES
Fine, Glenn A., Inspector General, Department of Justice,
Washington, D.C................................................ 4
Hammond, Larry A., Partner, Osborn Maledon, Phoenix, Arizona..... 21
Marone, Peter M., Director, Virginia Department of Forensic
Science, Richmond, Virginia.................................... 17
Morgan, John, Deputy Director for Science and Technology,
National Institue of Justice, Department of Justice,
Washington, D.C................................................ 6
Neufeld, Peter J., Co-Director, The Innocence Project, Cardozo
School of Law, New York, New York.............................. 15
QUESTIONS AND ANSWERS
Responses of Glenn Fine to questions submitted by Senators Leahy
and Kennedy.................................................... 29
Responses of Larry Hammond to questions submitted by Senator
Kennedy........................................................ 36
Responses of Peter M. Marone to questions submitted by Senators
Kennedy and Sessions........................................... 39
Responses of John Morgan to questions submitted by Senators
Leahy, Kennedy and Sessions.................................... 43
Responses of Peter Neufeld to questions submitted by Senators
Sessions and Kennedy........................................... 60
SUBMISSIONS FOR THE RECORD
Bloodworth, Kirk Noble, Justice Project, Washington, D.C.,....... 71
Fine, Glenn A., Inspector General, Department of Justice,
Washington, D.C., statement.................................... 79
Hammond, Larry A., Partner, Osborn Maledon, Phoenix, Arizona,
statement and attachment....................................... 90
Marone, Peter M., Director, Virginia Department of Forensic
Science, Richmond, Virginia, statement......................... 134
Morgan, John, Deputy Director for Science and Technology,
National Institue of Justice, Department of Justice,
Washington, D.C., statement.................................... 144
Neufeld, Peter J., Co-Director, The Innocence Project, Cardozo
School of Law, New York, New York, statement................... 153
OVERSIGHT OF THE JUSTICE FOR ALL ACT: HAS THE JUSTICE DEPARTMENT
EFFECTIVELY ADMINISTERED THE BLOODSWORTH AND COVERDELL DNA GRANT
PROGRAMS?
----------
WEDNESDAY, JANUARY 23, 2008
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, Pursuant to notice, at 10 a.m., in room
SD-226, Dirksen Senate Office Building, Hon. Patrick J. Leahy,
Chairman of the Committee, presiding.
Present: Senator Feingold.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT, CHAIRMAN, U.S. COMMITTEE ON THE JUDICIARY
Chairman Leahy. Good morning. We will have somewhat limited
attendance here this morning. I should explain that the
Republicans have a caucus-wide meeting all day long today which
will cut down somewhat. But with the schedule that we have
ahead of us this year, I did not want to put off this hearing
because of its importance.
Now, as many of you know, in the year 2000 I introduced the
Innocence Protection Act, a bill that aimed to improve the
administration of justice by ensuring that defendants in the
most serious cases have access to counsel and, if it's
appropriate, have access to post-conviction DNA testing to
prove their innocence in those cases where the system got it
grievously wrong.
Now, as one who has spent 8 years as a prosecutor, I saw
both sides of the crises that DNA testing has illuminated in
clearing those wrongfully convicted. The first tragic
consequence was what our system of criminal justice is designed
to prevent, the conviction of innocent defendants.
The second thing that sometimes we forget about is a
criminal justice nightmare, that if you convicted the wrong
person, that means the actual wrongdoer remains undiscovered,
possibly at large, thinking, I got away with it once, why can't
I get away with it again, and ends up committing the same
crime. So you have an innocent person behind bars and the
criminal is still out there, and the public is not safe.
Now, some of those who inspired the bill, the Innocence
Protection bill, are with us today. Kirk Bloodsworth was a
young man just out of the Marines when he was arrested,
convicted, and sentenced to death for a heinous crime. The
problem is, he didn't commit the crime. DNA evidence ultimately
freed him and identified the real killer, and he became the
first person in the United States to be exonerated of a death
row offense with the use of DNA evidence.
The years he spent in prison were hard, and actually his
journey since then, since being vindicated, has not been an
easy one. But instead of becoming embittered, he chose to use
his experience to help others. He worked hard to get the
landmark legislation passed, and the Congress rightly named it
after him because he was such a pioneer. And Kirk, I don't mean
to embarrass you, but would you please stand so everybody here
can see Kirk Bloodsworth?
[Applause].
Of course, as a parent of a young Marine, I also take
interest in this.
But also with us is Peter Neufeld, who, along with his
partner Barry Scheck, penned the extraordinary book Actual
Innocence, and if you haven't read it, you should. Their work
in the Innocence Project was fundamental to the changes in the
law we have achieved.
Shawn Armbrust was then a young student, and I was just
talking with her out back. I mentioned her so many times around
the country. She had taken part in a journalism class at
Northwestern University and she was assigned to just
reinvestigate a capital conviction in Illinois. Now, this was
something where the trained professionals, the law enforcement
people, the whole criminal justice system, the judges, the
defense attorneys, the prosecutors had looked at this.
This young journalism student came in, looked at it, and
found, you know, you've got the wrong guy, and she was able to
intervene just in time to keep somebody from being wrongfully
executed. And, boy, this was a light bulb going off about a
young student, even a very bright young student like she is. No
matter how well motivated, if they could find what escaped
everybody in the system, then the system's wrong. It's not just
that the students were bright, but the system was wrong.
She went on to law school. She now heads the Mid-Atlantic
Innocence Project at American University.
It took hard work and time, but in 2004 Congress passed the
Innocence Protection Act as an important part of the Justice
For All Act. We recognized the need for important changes in
criminal justice forensics, despite resistance from this
administration.
It was an unprecedented bipartisan piece of criminal
justice reform legislation. Democrats and Republicans came
together on it. It is intended to ensure that law enforcement
has all the tools it needs to find and convict those who commit
serious crime, because we should do our best to get the people
who have committed a crime, but also make sure that innocent
people have the means to establish and prove their innocence.
It is the most significant step that Congress has taken in many
years to improve the quality of justice in this country to
restore public confidence in the integrity of the American
justice system.
I am very thankful to the Senators of both parties,
especially those who are former prosecutors, as I was, who
joined me on this legislation. We gave law enforcement
resources and training to ensure that forensic testing,
particularly DNA testing, could be used to identify those who
committed horrendous crimes, as well as establish standards and
practices to ensure the accuracy of those findings.
More than 120 people have now been freed from death row,
according to the Death Penalty Information Center. It's a truly
alarming number, not an alarming number because the innocent
have been freed, but an alarming number that 120 people were on
death row, and they had the wrong person.
It's in everyone's interests for the guilty parties to be
found and punished, and comprehensive and accurate forensic
testing, along with adequately trained and funded counsel on
both sides, will help to convict the guilty, but also free the
innocent. With us today are a few more of those who served many
years for crimes they did not commit before being freed based
on DNA testing.
Charles Chatman was freed earlier this month by a judge in
Dallas, Texas after serving 27 years--27 years--for a crime
which DNA evidence now shows he's innocent. Mr. Chatman, would
you please stand just so we can see you?
[Applause].
And Marvin Anderson, of Virginia, was exonerated in 2001--
he's been here before this committee before--based on DNA
evidence. Again, a heinous crime. He served 15 years in prison.
It was a crime that the person convicted should serve prison,
but he wasn't the one who committed it. I thank you, Mr.
Anderson for being here. Please stand so you can be recognized.
[Applause].
Today we're going to focus on the Kirk Bloodsworth and the
Paul Coverdell Grant Programs and see how they're being
handled. The Kirk Bloodsworth Post-Conviction DNA Testing Grant
Program is one of which I am particularly proud. It is intended
to provide grants for States to conduct DNA tests in cases in
which somebody has been convicted, but key DNA evidence hasn't
been tested. It is exactly the kind of testing that ultimately
exonerated Kirk Bloodsworth, the person for whom it was named,
and has also vindicated many others.
Also, by consent I'll put a statement of Mr. Bloodsworth's
in the record at the appropriate point in this record.
[The prepared statement of Mr. Bloodsworth appears as a
submission for the record.]
Chairman Leahy. But when he and I celebrated the passage of
the Justice For All Act in 2004, 4 years ago, we hoped that
this legislation would spare others the ordeal that he and Mr.
Chatman and Mr. Anderson went through. But I am troubled to
find that, more than 3 years later, the Congress having
appropriated almost $14 million--again, Republicans and
Democrats alike having come together to appropriate nearly $14
million to the Bloodsworth program--not a dime has been given
out to the States for this worthy purpose. That is wrong. That
is scandalous. That is irresponsible.
This money has sat in Department of Justice coffers without
any of it going to help innocent people like Kirk secure their
freedom or to help law enforcement to find the real culprits.
We shovel billions of dollars to Iraq with no strings attached,
open ended. We're talking about $14 million that we've
appropriated specifically for this, for Americans, in the
American criminal justice system. We've wasted billions on the
Iraqi criminal justice system, but this is a tiny amount of
money for our own that can be spent.
The problem is, the Department has interpreted the law's
reasonable and important evidence preservation requirement so
restrictively, that even States like Arizona, which have
comprehensively documented their DNA preservation efforts have
been rejected. It's not what I intended when I wrote this
legislation. It's not what Republicans and Democrats alike
intended when we passed it.
So I hope we will hear that the Department now intends to
implement the law and to solicit and award the millions of
dollars of Bloodsworth grants that have been delayed these past
years. I hope we're not going to be disappointed again, because
it will be an issue that will be asked about when the Attorney
General testifies here next week.
The second program we're considering today is one that
Senator Sessions and I worked to pass to establish the Paul
Coverdell Forensic Science Improvement Grants Program. It is
named for a former Republican Senator from Georgia, somebody I
served with. These grants were intended to help States improve
the quality of their forensic science.
We're going to hear from Inspector General Glenn Fine and
we'll find out why the Department has largely ignored the
requirement that States must have a qualified, independent
entity to investigate allegations of lab misconduct.
As I said before, I'm not trying to get guilty people off.
I just want to make sure guilty people--guilty people--are
convicted, not innocent people. Not a single one of us are
safer if the wrong person is in jail. Now, Glenn Fine is the
United States Department of Justice Inspector General. He's
held that position since December of 2000. It probably feels
longer, some days.
[Laughter.]
He has served in the Inspector General's Office since 1995,
first as Special Counsel to the Inspector General, and
subsequently has directed a Special Investigations and Review
Unit. He also served in the Department of Justice as Assistant
U.S. Attorney for the District of Columbia from 1986 to 1989.
He received a bachelor's and master's degree from Oxford as a
Rhodes Scholar, a law degree from Harvard Law School. He's
highly respected by both Republicans and Democrats.
Mr. Fine, it's over to you.
STATEMENT OF GLENN A. FINE, INSPECTOR GENERAL, DEPARTMENT OF
JUSTICE, WASHINGTON, D.C.
Mr. Fine. Mr. Chairman, thank you for inviting me to
testify about the Department of Justice's oversight of grant
programs.
For many years, the Office of the Inspector General has
examined the work of the Department's Office of Justice
Programs in awarding and monitoring the $2 to $3 billion in
grant funds it awards each year. In particular, in two reports,
one issued last week, we assessed OJP's oversight of the Paul
Coverdell Grant Program's external investigation certification
requirements.
Pursuant to that requirement, Coverdell Grant applicants
must certify that a government entity exists and an appropriate
process is in place to conduct independent external
investigations into allegations of serious negligence or
misconduct substantially affecting the integrity of forensic
results. This requirement was designed to provide an important
safeguard to address serious negligence and misconduct in
forensic laboratories.
Our first audit report on the Coverdell program, issued in
December of 2005, found that OJP had not exercised effective
oversight over this external investigation requirement. For
example, we found that OJP's 2005 Coverdell program
announcement did not give applicants necessary guidance on the
certification requirement and did not direct applicants to
provide the name of the government entity that could conduct
independent external investigations.
In response to our 2005 review, after significant
discussion, OJP only reluctantly agreed to implement some of
the report's recommendations. Because we were concerned by
OJP's response, we decided to conduct a followup review, which
we issued last week. This followup review found continued
deficiencies in OJP's administration of the Coverdell program.
While OJP has started requiring applicants to provide the
name of the government entity, OJP still is not ensuring that
the named entities were actually capable of conducting
independent investigations. For example, the OIG contacted 231
of the 233 government entities that were identified by the 2006
Coverdell grantees, and we found that at least 34 percent of
the named entities did not appear to meet the requirements of
the certification.
In fact, OJP could not ensure that the applicants who
completed the certification had identified any entity at all.
Five certifying officials told the OIG that when they completed
the certification they did not have a specific entity in mind
and merely signed the document OJP provided.
In addition, we found that OJP did not provide adequate
guidance to ensure that grantees actually referred allegations
of negligence and misconduct to the certified entities for
investigation. In one instance, we found that OJP had advised a
grantee, and the grantee had advised the forensic laboratories,
that they did not have to refer allegations of serious
negligence and misconduct to the government entity.
OJP's response to our recent review was, again, narrow and
legalistic. While OJP agreed to implement two of the
recommendations, it argued, in essence, that the Coverdell
statute required only a certification from the grantee, that
OJP had complied with this requirement, and that therefore its
oversight of the program was not deficient.
Yet, we believe that OJP's responsibilities extend beyond
the bare minimum of compliance with the literal terms of the
statute. Rather, OJP has a responsibility to ensure that the
required certifications are meaningful and that grantees
actually have the means and intentions to follow through on
their certifications.
Our concern with OJP's administration of the Coverdell
Grant Program is exacerbated by its record of monitoring other
grant programs. In our reviews over the years, we have
identified a variety of management concerns regarding OJP's
oversight of other grant programs, which are detailed in my
written statement. As a result, for the past 6 years the OIG
has identified grant management as one of the Department's top
management challenges.
Finally, I believe it is important to note that OJP has
been slow to staff its own internal office to monitor and
assess grants. In January, 2006, as part of the Department of
Justice Reauthorization Act, Congress gave OJP the authority to
create an Office of Audit, Assessment, and Management to
coordinate internal audits of grantees.
The Act provided that OJP could use up to 3 percent of all
grant funds each fiscal year to fund that oversight office.
Unfortunately, OJP has made slow progress in staffing this
office in the last 2 years. While it moved around several
existing positions within OJP to create the office, it still
has not fully staffed the office and, to date, has not hired a
permanent director.
In conclusion, our findings on the Coverdell Grant Program
mirror problems we have found over the years with OJP's
administration of other grant programs. We believe that OJP
must improve its oversight to ensure that the billions of
dollars appropriated for important grant programs are
effectively administered, overseen, and monitored.
That concludes my statement and I would be pleased to
answer any questions.
[The prepared statement of Mr. Fine appears as a submission
for the record.]
Chairman Leahy. Well, thank you, Mr. Fine. Before we go to
you, we'll go to John Morgan, who is the Deputy Director for
Science and Technology at the National Institute of Justice. He
directs a wide range of technology programs for criminal
justice, including DNA, less lethal technologies, and body
armor programs.
He provides strategic science policy advice for the
Director of the National Institute of Justice, and throughout
DOJ. Prior to his government service, he conducted research at
the Johns Hopkins Applied Physics Laboratory, focusing on the
detection and mitigation of weapons of mass destruction.
Correct me if I've got any of these facts wrong.
Dr. Morgan. You're doing fine, Senator.
Chairman Leahy. You received your Ph.D. from Johns Hopkins
University, bachelor's degree from Loyola College in Maryland.
Please, go ahead.
STATEMENT OF JOHN MORGAN, DEPUTY DIRECTOR FOR SCIENCE AND
TECHNOLOGY, NATIONAL INSTITUTE OF JUSTICE, DEPARTMENT OF
JUSTICE, WASHINGTON, D.C.
Dr. Morgan. Thank you, Mr. Chairman, for the opportunity to
come before you today.
Chairman Leahy. Is your microphone on?
Dr. Morgan. Can you hear me? Thank you, Mr. Chairman, for
allowing me to come before you today to address these very,
very important issues. I am John Morgan, the Deputy Director
for Science and Technology. And on a personal note, Mr.
Chairman, I fully share, and I came to the Department of
Justice to implement, the kinds of programs and vision that
you've talked about today.
Our mission at NIJ is to advance scientific research,
development, and evaluation to enhance the administration of
justice and public safety. I really am excited to be here today
to talk about the programs that we've been able to implement to
improve forensic science in this country.
With the funding provided by Congress, NIJ has helped State
and local forensic laboratories address backlogs of untested
evidence and expand their long-term capacity to process
evidence, for example, through the purchase of modern
equipment, hiring of more staff, and training of new analysts.
State and local law enforcement agencies have been funded
to test nearly 104,000 DNA cases from 2004 to 2007, and 2.5
million convicted offender and arrestee samples for the
National DNA Data base, an amazing record of success for the
Federal Government. Over 5,000 hits or matches to unknown
profiles or other cases have resulted from these efforts.
This past week, in my hometown of Annapolis, Maryland,
county police announced five more hits in local murder and rape
cases that were funded using these very Federal DNA
appropriations, and in 2007 we expect to fund the testing of a
further 9,000 backlogged cases, and more than 834,000
backlogged convicted offender and arrestee samples. This is an
outstanding record of success for all of us.
We have also sponsored new research and development
programs that have dramatically improved high through-put DNA
analysis, DNA testing of small or compromised evidence, and
testing of sexual assault samples to really take advantage of
this revolutionary technology for the criminal justice system.
One NIJ-funded project uses Y chromosome technology to
obtain DNA profile from sexual assault evidence collected more
than 4 days after a sexual assault occurs. Another study has
demonstrated that DNA can be a powerful tool to improve the
clearance rate for burglaries by a very large margin, a factor
of 4:7. Research in other forensic disciplines, such as
impression evidence, toxicology, crime scene investigation, and
many more has also been greatly expanded under this funding.
We are developing a method to allow fingerprint examiners
to report the statistical uniqueness of latent prints captured
from crime scenes and we are doing similar studies for
handwriting analysis, ballistics identification, and other
forensic disciplines. These research programs will continue to
revolutionize the power, speed, and reliability of forensic
science methods and will help the post-conviction issue, too,
because it will help to resolve those cases more effectively.
Congress has recognized the importance of the full range of
the forensic sciences with the Paul Coverdell Forensic Science
Improvement Grants Program, through which NIJ has provided over
$60 million since 2004 to State and local crime labs and
medical examiner/coroners' offices in all 50 States.
Again, this is one of the few sources of funds for medical
examiner/coroners' offices that has ever been provided by the
Federal Government, a very important set of funding. These
funds have been used to decrease laboratory backlogs and
enhance the quality and timeliness of forensic services,
purchasing new equipment, training and education,
accreditation, certification, personnel renovations. The
program has been very successful.
In Pennsylvania, the Commission on Crime and Delinquency
reduced its overall forensic casework processing time from 60
to 30 days. Anchorage was able to reduce its 1,200 backlogged
cases to 250 with a Coverdell grant from 2006, one of the ones
under examination here.
The Department of Justice seeks to ensure that all these
funds are spent wisely and that the criminal justice system can
rely on the forensic results reported from these crime
laboratories. As part of our program management, we actually do
many, many other things to--many, many things to enhance the
management of these programs. We collect four different
certifications, including the one at issue here in the OIG's
report under Section 311.
We also subject applicants for competitive Coverdell awards
to independent peer review. We monitor each reward to ensure
compliance with various Federal statutes, regulations, and
policies designed to provide assurance that Federal funds are
used appropriately. We review their budgets to ensure they're
in keeping with the work promised in the grant application and
consistent with the statutory and policy requirements.
We enforce roughly 17 special conditions on each grant and
we sent experts into each laboratory. Under our Grants Progress
Assessment Program, we assess 100 percent of the grants in the
DNA and Coverdell programs over a 2-year cycle. We have made
854 such visits already. This is where independent experts--
these are people who have been in the crime laboratory for 10,
20, 30 years, going in and looking at these laboratories in an
independent way. It's one of the most important independent
reviews of crime labs in the United States, done under the
Coverdell program as well as our other DNA programs.
We need to balance these compliance activities with the
good things that the Coverdell grants achieve. Many of these
grants are for $100,000 or less, especially those for small
States or local governments, and we believe that many of these
potential grantees would not benefit from the program if we
enforced severely restrictive program requirements. In the real
world of moving the forensic community forward one step at a
time with these programs, we can't afford to make the perfect
be the enemy of the good.
We also manage the post-conviction testing grant program,
the Kirk Bloodsworth Program, which was established under the
Justice For All Act, and requires very specific practices in
law regarding the preservation of biological evidence and post-
conviction testing procedures. Unfortunately, these
restrictions were so difficult that only three States even
replied to the solicitation for post-conviction testing.
On review of their applications, it was determined that
none were compliant with the legal requirements of the statute
and we immediately began working with Congress to address this
when it became clear that we would not be able to award grants
in conformance with the law, which is our primary requirement.
We appreciate that we were able to work together on this
problem, and last month's appropriation bill provides a
solution that will permit us to apply the unspent funds from
2006 and 2007, as well as the new money appropriated in 2008,
to this need, and we have a grant solicitation on the street
today that will do that, and we will keep the committee
informed concerning the progress on this. We remain committed
to ensuring the exoneration of any wrongfully convicted
individual. It will be one of my proudest moments in my career
when that money goes out the door to actually do this work.
Chairman Leahy. Well, let me follow on this. Let me follow
on this a little bit. You know, you look at--the need is
obvious.
Dr. Morgan. Yes, sir.
Chairman Leahy. I mean, the need is demonstrated by the
three gentlemen sitting behind you. Look at today's paper. It
says, ``Man Imprisoned for Nine Years is Released in Wake of
DNA Evidence.'' Again, a heinous crime, Ft. Collins, Colorado.
There's no question, if I was a prosecutor, I'd want to put
whoever did that behind bars. I think we'd all agree, every one
of us. But they got the wrong person.
And I understand what you're saying about the Coverdell
program. Paul Coverdell, rest his soul, was a friend of mine.
We served together here in the Senate. If he were alive, I'm
sure he'd be delighted to see how well that's going.
But I am not quite as sanguine on the reasons why that is
doing very well, but the Bloodsworth program, we seem unable to
do it. There's been no money under the Bloodsworth DNA program
that's been awarded, despite--what, it was about $14 million
over the past 3 years we've put into it? It's vitally
important.
Again, I'd mention Mr. Anderson, Mr. Chatman, Mr.
Bloodsworth. I could name a whole lot of others. We passed an
important requirement as part of the Justice For All Act that
says in order to qualify for grants under the Bloodsworth
program States have to demonstrate they have procedures in
place for the preservation of DNA evidence in serious criminal
cases. I think we all agreed on that. Funds would do no good if
you sent the funds, but they're not preserving the evidence.
But what I worry about, is it looks like the Department has
interpreted this so restrictively that even States like
Arizona, which have comprehensively documented their
preservation efforts, to their credit, they've been rejected.
Can you tell me why? Maybe I've overlooked this. Why isn't
the Department working with States seeking that money? I mean,
I looked at some of these applications. They were simply
rejected with no official explanation. If we're going to really
follow the intent of this, wouldn't it be a lot better to say,
hey, we've got a problem with this, let's sit down and let's
make it work? I mean, if even Arizona can't make it, I'm
beginning to wonder if there's any State in the Nation that
could make it.
Dr. Morgan. Senator, I share your frustration and we have
worked for some time to try to resolve this. And as I said, we
did come to Congress and let you know about this--about this
issue and worked with you, and the flexibility we achieved in
the Budget Bill will allow us to get this money out the door.
The biggest step is--
Chairman Leahy. But even getting here--even getting here,
in the Coverdell program, you only need a brief certification.
The Department is not even allowed to look behind it. But the
Bloodsworth program has a demonstration so high, I don't know
how you can get around it. It almost looks to me like, OK, if
you're under the Coverdell program you're home free, if you're
under the Bloodsworth program, even though you may be
exonerating innocent people, sorry, there's no way you can get
over the hurdles.
I mean, there's got to be some kind of a middle ground here
because otherwise there's going to be a feeling around the
country that one is a favored child of the Justice Department
and the other is kind of the locked-up stepchild, without
getting into the Grimm fairy tales.
Dr. Morgan. Yes. Senator, the biggest difference in the
statute between the two, is the Coverdell statute says
``certify'' and the Kirk Bloodsworth statute says
``demonstrate''. So in order to get the money in Coverdell,
somebody needs to certify. They need to put a certification in.
And we rely on the State and local official in each case to
make that certification, to sign that form, and say I'm taking
responsibility here that this process is in place.
Chairman Leahy. OK. Now, you started to say something about
the new legislation. Are you going to be able to do something
similar to that on the Bloodsworth program?
Dr. Morgan. Yes, sir. Exactly. In the solicitation we put
out for Bloodsworth, what we've done is, instead of requiring
them to demonstrate, as they had to under the statute as it's
written now, we have now replaced that with a certification in
this area, so they now need to certify that they have a process
in place for post-conviction testing, and that they preserve
the biological evidence in the serious felony cases.
That certification must be made by the chief legal officer
or, for example, the Attorney General of the State that is
applying. Once we have that certification in place and that
person signs on saying we have the policies in place that
you're talking about, then they will qualify and they will be
able to receive the funds.
Chairman Leahy. Do you agree with me that it's important
that the Bloodsworth Act worked?
Dr. Morgan. Absolutely, Senator. I've made it one of my
chief goals in life the last couple of years. I want to get
this money out. I don't have any hidden agenda.
Chairman Leahy. I'm not suggesting--
Dr. Morgan. We've worked very closely with the three States
and we really do want to do this.
Chairman Leahy. I'm not suggesting you do.
Dr. Morgan. Thank you.
Chairman Leahy. I didn't do my usual procedure of swearing
in witnesses today. I'm just trying to learn what's happened.
Dr. Morgan. Yes.
Chairman Leahy. I went to the National Institute of
Justice's website and I didn't do it exhaustively, but there's
dozens of instances where States have to demonstrate they met
some kind of requirement. But I don't see any of them where
they're required to do all of the exhaustive documentation and
the proof that there is in the Bloodsworth program. In other
words, it's kind of like, this one sort of stands out.
Dr. Morgan. Well, in most cases we enforce those kinds of
things through certifications, and when the statute gives us
the ability to do so, that's what we do, because we're
administering over $200 million worth of programs with my
Federal staff of about 20 or so. So we can't be going in and
requiring this in most of our grant programs. We like to do
certifications because it allows us to be able to do more good
and still have some benefit with respect to the compliance
activities, some ability to say, well, this certification means
something that we can rely on. So, we do that in most cases.
There are cases where we have to do more kinds of
compliance than that and we have to do more oversight than
that. For example, in environmental protection areas, we
actually have to--we've actually delayed some Coverdell grants
because the labs have had to come back and do environmental
assessment work before they're able to draw down funds.
In some cases, that has delayed the funding under Coverdell
by over a year because of those environmental assessments. So
it depends on what the statute requires and what we feel we
have the staff resources to do. It's kind of a tradeoff. It's
about cost effectiveness and our ability, with the staff we
have available, to enforce what we've got.
Chairman Leahy. Dr. Morgan, you understand, from what I
have said and what others have said, what it is we want to do
here in the Congress.
Dr. Morgan. Yes.
Chairman Leahy. Can you state to me--probably more
importantly, can you state to Mr. Bloodsworth, who's sitting
right behind you--
Dr. Morgan. Yes.
Chairman Leahy. Can you tell us that you will work in every
way possible to make this program work in the way we wanted it
to?
Dr. Morgan. Yes, Senator, I will.
Chairman Leahy. OK.
Kirk, you heard that.
Mr. Bloodsworth. I did.
Chairman Leahy. OK.
Mr. Fine, in response to your report, the Justice
Department said it has met its legal obligation to enforce the
requirement that States receiving Coverdell grants have an
independent entity to investigate allegations of serious
negligence or misconduct just by making sure there's a piece of
paper, or a certification, in their files.
The Department, as I read the letter that responded to your
report, suggested that it did not have legal authority to do
anything more than receive the certification and it could not
make sure the certification was accurate by calling the agency
or checking the accuracy of the certification.
Do you think the Justice Department has a legal authority
to check on the accuracy of these certifications?
Mr. Fine. Senator, yes, it does. I think that was its
initial response, and eventually it acknowledged that it does
have the ability to go beyond these certifications. That's what
we see as the problem, what you pointed out. In one instance
they imposed very onerous requirements, and in this instance,
the Coverdell, they simply collected the certifications and
said that's their only responsibility; because Congress has not
specifically directed them to do more, they weren't going to do
more.
We think that is wrong and that they have a responsibility
to effectively administer the program, particularly when,
apparently on its face, sometimes, the certification seemed
deficient. When we pointed out to them there were problems with
the certifications, they need to ensure that the certifications
have meaning, what we were responded to with was reluctance,
hesitation, and unwillingness to go beyond merely collecting a
paper without significant prodding from us. Eventually they did
agree to do a little more, but we think there's more to be
done.
Chairman Leahy. So if there's misconduct in a crime lab,
they don't have to just say, well, we've got a certification,
we can't look beyond it. They can look into that misconduct.
Mr. Fine. Well, they could give guidance to the grantee to
make sure that when there is an allegation of serious
misconduct, that it actually gets referred to the independent
external investigation authority. They even, as I stated in my
testimony, said, well, we're not required to do that--While
it's consonant with the statute to give guidance to do that,
it's not required by the statute.
Again, if the statute doesn't specifically tell them to do
something, they were reluctant to do it, in our view, and we
think that that is narrow, legalistic, and not effectively
administering the statute. I recognize they have a limited
staff. That's part of the reason I pointed out that it has the
ability to beef up its Office of Assessment and Management. It
has not done so. It's been very slow to do so, and we think
that not only giving out the money expeditiously, but ensuring
compliance with the terms of the grant, is an important
consideration that needs attention.
Chairman Leahy. Well, your report that you issued last
week, I understand the principal recommendation was for the
Justice Department revise its template for the certifications
to ensure that the investigating agencies had the authority and
the independent resources and process for handling allegations
of misconduct or serious negligence. Did the Justice Department
accept that recommendation?
Mr. Fine. No, they didn't. They did not want to revise the
template. They wanted to simply collect the certification. They
did agree in the past to have the entity named, but they did
not agree to do more to ensure that the entity actually does
have the independence, resources, authority, and ability to
conduct independent external investigations.
Chairman Leahy. How do you react to that response?
Mr. Fine. We asked them to reconsider. We tried to--we
don't have the authority to make them do it, but we tried to
bring to light the importance of it, the need for it, and the
reasons why we think that they should do more to enforce this
very important requirement that will uphold and improve the
integrity of forensic results.
Chairman Leahy. When you first did a review of the
Coverdell program back in 2005, I believe you found a number of
problems. Certifications sometimes didn't even name the
agencies responsible for conducting investigations of forensic
labs. You asked the Department of Justice to work on correcting
that. Did they?
Mr. Fine. Eventually they took action, but it was a
struggle, and it is a struggle. We met with them. We pushed
them. They were reluctant to even have the entities put on the
form the name of the organization that they had in mind when
they were certifying it, so they had to have an organization in
mind. All we were asking them to do was to revise the form, to
write it down. They were unwilling to do that initially. We had
to meet with them.
I met with the Director of OJP and argued with them to do
it because I thought it was important. Eventually, after much
prodding, they've agreed to take that step. But that's sort of
the reluctance that we see to enforce compliance with the
intent of the statute.
Chairman Leahy. Well, Dr. Morgan, I listened to what
Inspector General Fine has said. I also see the statement that
NIJ has fully implemented the statutory requirements of JFAA
Section 311. I know that sounds like gobbledygook to some, but
it sounds like you haven't.
Dr. Morgan. Well, it's a very important statement to us
because our primary obligation, first, is to make sure we
comply with the statute. And so we want to make sure that at
least we do that, so that's a very, very important thing to me,
that the Inspector General has made that conclusion that we did
comply with the statute.
Now, we're in violent agreement with the Inspector General
concerning the need to ensure--
Chairman Leahy. Violent agreement or disagreement?
Dr. Morgan. Agreement.
Chairman Leahy. OK. I just want to make sure we get that on
the record.
Dr. Morgan. On the details, we have some issues, but we're
in violent agreement with the Inspector General concerning the
need to ensure the integrity of forensic results. Our argument
really is, looking at this one certification, is only looking
at a very small part of an overall effort here, of which there
are many, many other elements, and we've made certain
management choices about what's the most critical thing to do.
And I'll say again, I'll talk again about the Grants
Progress Assessment Program. Eight hundred and fifty-four
laboratories actually visited, with experienced forensic
scientists, to see what practices are in place, to review
whether they're actually accredited, to make sure they're
following generally accepted laboratory principles, as required
under the law also. There are many, many other things in place
here that are very important to enforce, and we need to do a
balancing act with respect to putting the good out there in the
field and not spending all the money on the compliance--
Chairman Leahy. Nobody is going to disagree with that, but
I'm going to have my staff followup further with you because I
worry that we maybe have a case where we're following the
letter of the law, but not the spirit of the law. If we need
even more changes, we'll do that. But I think everybody knows
what we want to do here.
Dr. Morgan. Yes, sir.
Chairman Leahy. And I don't--in many ways, I hope this kind
of a headline becomes something we won't see in the future, not
because we didn't get people falsely imprisoned out, but
because we don't falsely imprison people. And I understand,
again, I have the same attitude I had when I was a prosecutor:
I want guilty people locked up, especially those involved in
violent--we're talking about violent crimes here. We're not
talking about minor things. We're talking about violent crimes,
we're talking about heinous crimes. I want those people locked
up.
But I don't want the State to make the mistake of locking
up the wrong person, because that means, somewhere, the guilty
person is still out there. We have two terrible miscarriages of
justice, one by having an innocent person behind jail--I don't
know how somebody could stand 1 day behind jail knowing they're
innocent, not 27 years, and 10 years, and 8 years, and 12
years, and 9 years, and others we've seen. But the other part
is, as a people, we're not safer. We're not safer locking up
the wrong person. We have extended our resources for nothing.
We might get a nice headline, but we haven't locked up the
right person. So, if I might, I'm going to have my staff
followup with both of you gentlemen if we can.
Dr. Morgan. Yes.
Chairman Leahy. Let's try to make this thing work.
We'll take a 5-minute recess while we set up for the next
panel. Thank you.
[The prepared statement of Dr. Morgan appears as a
submission for the record.]
[Whereupon, at 10:48 a.m. the hearing was recessed.]
AFTER RECESS [10:59 a.m.]
Chairman Leahy. If we could come on back. Sometimes at
these hearings when so many people in the audience know each
other, there's a good chance to get caught up, which is what I
was just doing.
Our witnesses today, the first witness, is Peter Neufeld,
who was mentioned already. But Mr. Neufeld is well-known to
this committee. He co-founded, and he co-directs, the Innocence
Project. It's an independent nonprofit organization affiliated
with the Benjamin Cardozo School of Law. He's a partner in the
civil rights law firm of Cochran, Neufeld & Scheck. The last 10
years, he served on the New York State Commission on Forensic
Science that has the responsibility for regulating all State
and local crime laboratories.
Prior to his work with the Innocence Project, Mr. Neufeld
taught trial advocacy at Fordham University Law School, and was
a staff attorney at the Legal Aid Society of New York. He
received his law degree from the New York University School of
Law, bachelor's from University of Wisconsin.
Mr. Neufeld, please go ahead.
STATEMENT OF PETER J. NEUFELD, CO-DIRECTOR, THE INNOCENCE
PROJECT, CARDOZO SCHOOL OF LAW, NEW YORK, NY
Mr. Neufeld. Thank you very much, Mr. Chairman. It's a
pleasure to be here.
Chairman Leahy. Is your microphone on?
Mr. Neufeld. Now it is.
Thank you very much, Mr. Chairman. It is, indeed, a
pleasure to be here.
I think the last time I was testifying before this
committee was 4 years ago in the work-up to the passage of the
Innocence Protection Act and the Justice For All Act. I recall
not only the high hopes that everybody that that particularly
the innocence provisions that you were the author of would be
adopted and change the landscape of wrongful convictions in
criminal justice in this country, but there was particular
interest, particular bipartisan interest, in the notion that
crime lab scandals and problems defied categorization by
Republican or Democrat, and that everybody here on both sides
of the aisle, without exception, felt that we needed to have
rigorous, independent, external audits whenever problems arose
in the crime laboratories. So, that and the Bloodsworth
provisions were such a wonderful moment of great hope.
And I'm going to not talk as much about the Bloodsworth
grant because we have Larry Hammond here from Arizona who will
be able to address that point, and I'm going to focus more on
Coverdell. But before I do, before I get to Coverdell, the one
thing I do want to say here, which is just so upsetting, and
you were much too kind, but the absolute clear disparity of
treatment between Coverdell, which simply gives out all these--
not enough money, by the way, but provides money to crime
laboratories to work on non-DNA disciplines, but giving them,
you know, free clearance not to really have a rigorous program
of internal, external--I'm sorry. Of independent external
auditing when things go wrong.
Well, on the other hand, it was so much a part of the
legislation to encourage the States to preserve evidence, to
encourage the States to pass statutes allowing inmates to have
post-conviction DNA testing, to see that part of this marvelous
legislative package be rendered toothless, that kind of
disparity is just so mean-spirited, quite frankly, Mr.
Chairman, I think it's an insult to crime victims, to the
wrongly convicted, to Congress because it simply thwarts the
goals that Congress had set out, and it undermines the
integrity of forensic science and criminal justice in this
country. We should all be concerned that it is never too late
to get to the truth of a man who was wrongly convicted. It
should never be too late to free that person and identify the
real perpetrator.
One of the most important things that Congress did in 2004
when it passed the Innocence Protection Act and the Justice For
All Act, was it realized that, just as it passed the
preservation bill for Federal crimes and a post-conviction
testing bill for Federal crimes, they wanted to encourage the
States to do the same thing. Well, the States have done that
with respect to post-conviction statutes. Almost 43 or 44
States now have meaningful post-conviction DNA statutes, and
Congress should be applauded for the role it played in that in
the Justice For All Act.
On the other hand, the track record on preservation has not
been as good. There are about 5 or 6 States that meet the most
rigorous preservation standards, perhaps another 10 or 15 that
have some form of preservation rules. But we all know how
important preservation is not only to exonerating the innocent,
because obviously if the evidence is lost an inmate can't get
access to it, and we also know how important it is to good
police work. I can't tell you how many dozens of detectives
I've spoken to over the years across the country who tell me,
you know, darn it, I can't reopen these old, cold cases because
the evidence simply hasn't been preserved. So, Congress wanted
to encourage both things.
The Virginia experience perhaps is very appropriate because
it points out this kind of duality. You introduced, before,
Marvin Anderson. Marvin Anderson comes from Virginia. Virginia,
at the time that Marvin was convicted, did not have any
meaningful preservation standards at all. Indeed, it was the
practice that all evidence would be returned from the crime
laboratory to the local counties and then be destroyed.
Fortunately for Marvin Anderson, somebody serendipitously
made a mistake in the state crime laboratory and, rather than
returning it with the rape kit to the submitting sheriff's
department, she glued it inside her notebook. So fortunately
for Marvin Anderson, even though he had been convicted almost
20 years earlier, we were able to get access to that evidence
and prove his innocence.
And then guess what happened? Two more people got access to
that same evidence because it serendipitously wasn't destroyed,
and proved their innocence. That was a wake-up call to then-
Governor Warner. Governor Warner was very, very troubled by
this and Governor Warner asked the state crime laboratory to do
a random check of old cases, and he did the random check of old
cases and he found that, of 18 cases, there were 2 more
exonerations. So, he ordered thousands of cases to be
reexamined.
The State set about trying to do all that and, in part--in
part--they've been stymied by the failure of NIJ to give them
the money to do that post-conviction testing. It's outrageous.
Compare that to Mr. Chatman, who's here today, who's one of 15
people--15 people--cleared in Dallas, Texas for one reason and
one reason only: because the crime laboratory in Dallas saves
the evidence in every single case. Compare that to New York.
With New York, we have 19 cases where we can't even do testing
because New York can't find the evidence. They've lost the
evidence. So, preservation is very important and we can't lose
contact with it.
On to Coverdell. And I'll be very quick, Your Honor. Your
Honor? See, I'm so used to appearing in court. You can
appreciate that. You've been there, Senator.
Chairman Leahy. This is not the first time that someone has
done that.
Mr. Neufeld. All right.
Chairman Leahy. We always know when lawyers are here
testifying.
Mr. Neufeld. Coverdell.
Chairman Leahy. But please wrap up, because we are going to
have to--
Mr. Neufeld. The whole point of Coverdell was to make sure
that if something goes wrong, there's going to be an
investigation into what went wrong, how we can fix it so it
won't happen again. I think the most mean-spirited thing that
the General Counsel at OJP did was to tell a grantee that, hey,
just certify that you got an entity, just certify that you've
got a process, but you don't have to use that process. Don't
bother with it.
I consider that an obstruction of the will of Congress. To
me, Senator, that's no different than if this Congress passed a
bill requiring the CIA to preserve videotapes of interrogation
and the CIA said, OK, we'll preserve them, we'll keep them in a
garbage dump, because no one told us how to preserve them, no
one told us where to preserve them. That's in bad faith. The
Senate has to do something to make sure that these external
audits go forward.
We have presented written testimony which shows examples of
good external independent investigations and bad ones, and it
has to be fixed. Until it's fixed, Senator, I assure you, no
matter what representations are made by NIJ, there will
continue to be wrongful convictions and there will continue to
be instances where the real bad guy is out there committing
more crimes.
[The prepared statement of Mr. Neufeld appears as a
submission for the record.]
Chairman Leahy. Well, we intend to have it fixed. I don't--
on a day when the Senate is, in effect, not in session, I can
assure you, being here, I'm here because I want to make sure
it's fixed. Like all other Senators, there's enough calls on
your time and I am--that's why I am here.
I also ask consent that other Senators who have statements,
that they be placed in the record, including Senator Biden's.
[The prepared statement of Senator Biden appears as a
submission for the record.]
Chairman Leahy. Peter Marone is the Director of the
Virginia Department of Forensic Science. He's served there
since 1978. He's a member of various professional
organizations, including the American Society of Crime Lab
Directors. He's chair of the DNA Credential Review Committee.
Most recently, he was elected chair of the Consortium of
Forensic Science Organizations. He began his career at the
Allegheny County crime lab in Pittsburgh beginning in 1971, and
he remained there until 1978. He has both a bachelor's and
master's degree from the University of Pittsburgh.
Mr. Marone, please go ahead, sir.
STATEMENT OF PETER M. MARONE, DIRECTOR, VIRGINIA DEPARTMENT OF
FORENSIC SCIENCE, RICHMOND, VA
Mr. Marone. Thank you, Mr. Chairman. It is really an honor
to be allowed to speak here. Maybe it would be a good time
right now for me to request that I might be able to provide an
updated written response, knowing now what we know about the
additional grant solicitation.
Chairman Leahy. Of course. I will keep the record open so
that anybody who wants to either add to their testimony or to
add something based on the questions asked, can feel free to.
Of course, that would include you, Mr. Marone.
Go ahead.
Mr. Marone. As you said, I'm the Director of the Virginia
Department of Forensic Science, but today I'm really speaking
as the chair of the Consortium of Forensic Science
Organizations. The CFSO is a national organization which
represents the American Academy of Forensic Sciences, the
American Association of Crime Laboratory Directors, the
National Association of Medical Examiners, Forensic Quality
Services, which is an accrediting body, the International
Association for Identification, and the American Society of
Crime Laboratory Directors' Laboratory Accreditation Board. For
reference, I'm also a member of the National Academy of Science
Committee on Identifying the Needs of the Forensic Science
Community.
The field of forensic science has received a tremendous
amount of visibility and attention in recent years,
particularly in the television media. As a result of this
attention--or as many refer to it, the CSI effect--the
perceived capabilities of our laboratories have grown, and
along with them our caseloads have increased dramatically. We
find that both law enforcement agencies, as well as attorneys,
both sides, prosecution and defense, seem to be affected by the
CSI effect and tend to request much more testing and analysis
of crime scene evidence than has ever been required before.
As a result, we've seen our case backlogs grow at a most
alarming rate. Add to that the policy changes and enforcement
issues that continue to add on, for example, enhanced penalties
for possession of a firearm with a drug arrest and an increase
in the use of the National Integration Ballistic Information
Network, NIBIN, have increased the number of firearms cases
almost exponentially. In addition, increased emphasis on anti-
child exploitation and Internet pornography has increased the
need for digital evidence, computer forensics capabilities far
beyond existing resources.
Concurrently, the laws regarding DNA data banks are also
expanding rapidly on a nationwide basis. This fact has, as
well, caused an increased caseload for data banks and data bank
laboratories and casework laboratories. Unfortunately, the
increase in backlog and caseload has not been accompanied by a
commensurate increase in funding for our laboratories. It's
difficult to obtain funding to cover both the large number of
new cases that are being presented to our labs daily and the
backlog of cases from the past that require a timely review.
While the crime labs clearly understand and concur with
some cases from the past needing to be reviewed promptly, to
address both issues is time-consuming, costly, and logistically
problematic. We have also found that, as science progresses and
crime labs expand their services, older methods previously used
by these laboratories are called into question. This, along
with some deserved criticism, caused scrutiny regarding the
capability of the labs, as well as the integrity of the crime
lab system.
Cable news coverage, including specialized programs or
segments featuring expert witnesses, have given even a louder
voice in the public arena which also leads to increased
visibility. Scrutiny is welcome when it assists in laboratory-
improving services and the methodologies that are being
employed. There is always a way to improve and any chance to do
so should be welcomed. However, one must be careful that change
is not done merely for the sake of change and does not become
necessarily cumbersome and time-consuming without specific
valid purpose and useful results.
One of the issues I wish to address is the requirements
established in order for a laboratory to receive Federal funds
to conduct post-conviction testing, specifically what is being
discussed here today, the Bloodsworth amendment to the Justice
For All Act. Mr. Neufeld stole a little bit of my thunder
there. I was going to ad lib a little bit and certainly
recognize Mr. Anderson here. He told you the story of how he
got started, but he didn't tell you the volume of what we're
dealing with. Virginia looked at, and the Governor then agreed
after those first 31 cases were reviewed, that we look at all
the cases.
That evidence, or should I say, analysis ends, weren't done
by mistake. The analyst had a particular habit of taping down
what was left over from her original observation in the case
record, not a general practice, but she did it because she
wanted to be able to tell the jury, this is where I took this
from, these are the genes that I took it from, and so forth.
That's why she kept them.
Well, let me make a long story short: 534,000 case files
later--we reviewed them all--there are 2,215 cases that meet
the criteria that Governor Warner gave us to look at. We have
looked at about 26 percent of those, and the other 74 percent
are in the process of being worked through. We got State
funding to do that first batch, but obviously the amount of
money we're looking at can't be handled all with State funds.
Those were unbudgeted funds. The governor took them out of
unknown sources, but they made a bill for it.
Chairman Leahy. I discussed that with Governor Warner at
the time. I was very proud of him in making that effort.
Mr. Marone. Some of the issues. Please bear in mind that
the time permitted to respond to these solicitations from the
Department of Justice has been 4 weeks. Unfortunately, the
solicitation requirements aren't available to any of the
laboratories prior to the announcement and, therefore, 4 weeks
means 4 weeks. Compliance with these requirements has required
implementation of new legislation, or at least amendment of
existing statutes for each one of the States.
The State of Virginia was able to comply with this because
it had statutes already in place, in some part because of Mr.
Anderson, for evidence retention. The policies were in place.
All the sign-offs by the head law enforcement agency, our
Attorney General, were in place. I submitted all of those for
the record. We were confident that this provision made the
solicitation, and we were frustrated that we were advised that
we did not meet the requirements to obtain the funding. A one-
page letter told us that.
If we had had this funding in the time we anticipated, it
would be a significant help in completing this, what we call
the Post-Conviction Project. Ironically, Mr. Chairman, my State
has been criticized, for many in the State, for not processing
these cases more expeditiously. I look forward to reviewing a
new solicitation when I get a chance to look at it.
The second issue I wish to address is the oversight boards
for forensic laboratories. Many laboratories, if you ask them,
will state their oversight is provided by the accrediting body
under which they operate. Some people will say that this is a
fox guarding the henhouse and there is something inherently
wrong about the process. But when you look at it, other
oversight boards, whether it be commercial, medical,
legislative, or legal, have oversight bodies which are
comprised of the practitioners in that profession. It makes
sense that the most knowledgeable about a particular topic
would come from that discipline, but that does not seem to meet
the current needs.
The key to appropriate and proper oversight is to have
individuals representing stakeholders, but these individuals
must be there for the right reason--to provide the best
possible scientific analysis. There can't be any room for
preconceived positions, agenda-driven positions, and
unfortunately we have seen this in some other States when
they're beginning to put these committees or boards together.
As a result, many States have taken it upon themselves to
create their own commissions, and unfortunately what this means
is no two States have the same criteria.
The Virginia Department of Forensics--OK.
Chairman Leahy. Your statement will be a part of the
record, Mr. Marone.
Mr. Marone. OK.
Chairman Leahy. I understand what you're saying on this.
Again--
Mr. Marone. Let me finish up then.
Chairman Leahy. Go ahead.
Mr. Marone. OK. The laboratories, nationally, are staffed
by truly dedicated individuals who are committed to finding the
truth, whether exonerating wrongfully accused or uncovering the
guilty. However, they are woefully underfunded and with
increasing caseloads. We are looking forward to the
recommendations of the National Academy of Sciences study, and
are confident Congress will review those recommendations and
act accordingly.
I thank you for your consideration for the opportunity to
address this issue.
Chairman Leahy. And you would agree with me, I'm sure, that
in a competently, professionally run laboratory, they're not
advocates. They're just there to find the facts. Is that
correct?
Mr. Marone. Absolutely.
Chairman Leahy. Thank you.
[The prepared statement of Mr. Marone appears as a
submission for the record.]
Chairman Leahy. Mr. Hammond. Larry Hammond is a partner in
the Phoenix law firm of Osborn and Maledon. Did I pronounce
that correctly?
Mr. Hammond. You did.
Chairman Leahy. He focuses on criminal defense and
litigation. He has published numerous articles on criminal
justice and death penalty issues. Some have been used in this
committee. He currently serves as chair of the American
Adjudicators Society's Criminal Justice Reform Committee. He
previously worked as Assistant Watergate Special Prosecutor
from 1973 to 1974.
He joined the Justice Department under President Carter as
First Deputy Attorney General and the Office of Legal Counsel.
He received both his law and bachelor's degree from the
University of Texas. We've heard a lot today about the
difficulties of Arizona and attempts to come under the
Bloodsworth law.
Mr. Hammond, the microphone is yours. Make sure it's turned
on.
STATEMENT OF LARRY A. HAMMOND, PARTNER,
OSBORN MALEDON, PHOENIX, AZ
Mr. Hammond. It is on. Thank you, Mr. Chairman. Thank you,
Senator Feingold, for joining us this morning.
As you indicated, I am the chair of what's known as the
Arizona Justice Project. Our project has been in existence for
10 years. It looks for cases of actual innocence or manifest
injustice. We have looked at many DNA cases, and other kinds of
cases as well.
Historically, our organization, like many around the
country, has been largely dependent upon volunteer
contributions by lawyers, by experts, by investigators, and by
others. We have survived for a decade based primarily upon
volunteer contributions. The Bloodsworth Grant Program afforded
us an opportunity that, in our history, we had never had.
Let me pause, Mr. Chairman, for just a moment to say a word
about the people I've associated with over the last decade.
I've been on many programs and attended many meetings with
Peter Neufeld and Barry Scheck, but I've never had the
opportunity to say in a hearing like this what has been on my
mind for a long time.
I do not know two lawyers in America who have done more for
the public interest than Barry Scheck and Peter Neufeld. What
they have accomplished in their lifetimes, and the leadership
that they have provided to others in the creation of their own
project and in the creation of the Innocence Network, which now
comprehension about 40 projects, is truly stunning. I am very
proud that our project could be a small part of a very large
undertaking that has changed the face of criminal justice in
America.
The Bloodsworth Grant Program could have, and still should,
take us to a new level. We came to NIJ with an idea and in the
early stages of the development of that idea, I must say we got
terrific help from their staff people. They improved our
project in lots and lots of ways. By the time we had worked
with them for several months, we were absolutely convinced that
we had something that would be of tremendous value to the State
of Arizona. We would have been, and I hope someday still will
be, one of the first States, if not the first State, to do an
absolutely comprehensive review of all open DNA homicide and
sexual assault cases that could be proved one way or the other
by DNA evidence.
And we had a partnership with our Attorney General, Terry
Goddard. I don't know of another State whose Attorney General
has said, I will help you find the files. I will help you find
the biological evidence. I will take away the road block that
so often stands in the place of projects like ours around the
country. And they also had the idea at NIJ of us doing a post-
mortem on every successful DNA exoneration, for exactly the
reason, Mr. Chairman, that you said this morning.
In our experience, every time someone is exonerated, the
first thing you ought to be looking at is: who was the guilty
person? We have done a post-mortem of one of our most famous
Arizona cases involving Ray Krone, the 100th DNA exoneree in
this country who has testified many times, I think, in this
committee. What we found in his case was that the real
perpetrator, left unguarded, left unapprehended, raped a 7-
year-old child after he should have been arrested. It's that
kind of post-mortem that we think can help change the face of
criminal justice in America. So we went through this great
process. We were extremely pleased.
Then at the last moment, we got a one-paragraph letter that
simply said ``you are ineligible''. Not that our grant wasn't
good enough, not that anything else was wrong with it, but they
didn't even tell us why. They didn't even tell us why we were
ineligible.
We later found out orally--Dr. Morgan was very helpful, as
helpful as I guess he could be under the circumstances, in
simply telling us, I'm sorry, you were deemed ineligible. We
had a certification, which you mentioned earlier, from Terry
Goddard, our Attorney General, that he worked very hard on and
he signed his name to, detailing the efforts in the State of
Arizona to preserve evidence. That was deemed, for reasons
never explained to us, to be inadequate.
As a result of that, we have now waited for another--it's
been what, now, almost 2 years. We've started out with 3 DNA
cases that we didn't have the funds to deal with. Mr. Chairman,
we now have 18 and we have to deal with those families, and we
have to deal with those inmates. Frankly, as far as I can tell,
nobody at NIJ has cared about that.
[The prepared statement of Mr. Hammond appears as a
submission for the record.]
Chairman Leahy. Well, Mr. Hammond, as you heard me say, I'm
worried that we are losing sight of the intent of the
Bloodsworth Act. Again, this was something passed by both
Republicans and Democrats. On this committee we have several
former prosecutors, but there are several others throughout
both the House and the Senate who have joined us on this who
worked very hard, and they range across the political spectrum.
I don't want to get into a case of telling war stories, but
I recall a heinous murder case in my jurisdiction when I was
prosecutor, so heinous that I went to the scene about 2:00 in
the morning and, within a month, at three different times came
to my desk, we've got the person who did it and here's the
evidence.
I worried about it because it didn't look substantial
enough. They went back and said, oops, wrong guy, but now we've
got the right guy, three different times. Entirely different
people. When they got the third person, he had an iron-clad
alibi, at a school reunion on the West Coast. This was in
Burlington, Vermont, we were. You know, we could have arrested
any one of those, created headlines. The public is not safer.
We've been joined by Senator Feingold. Did you want to add
anything, Senator, before we go to questions?
Senator Feingold. If I could, Mr. Chairman, I'd appreciate
it.
Chairman Leahy. Sure.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. I want to commend you for holding this
hearing. I'm very pleased to see this committee once again
address the need to improve the tools for seeking the truth in
our criminal justice system. In addition, Members of Congress
know all too well that we must follow up on the implementation
of legislation we pass when it appears that our intent is being
thwarted. So, Mr. Chairman, I appreciate that you are
conducting the oversight that is critically needed with respect
to these grant programs, as we have learned from the Inspector
General and others today.
DNA testing has played an incredibly important role in the
pursuit of truth and justice. DNA testing has identified
perpetrators or provided other important probative value to the
police and prosecutors investigating a crime.
But DNA testing has also exposed a piece of the dark
underbelly of our criminal justice system, the conviction and
sentencing of innocent people for crimes they did not commit.
Americans have become all too familiar with the stories of
people wrongfully convicted, sentenced, and sent to prison who
finally walk free as a result of DNA testing.
Several of the people in attendance here today know all too
well that this can happen. Nationwide, scores of innocent
people have been released and, according to the innocence
project, 65 percent of those wrongful convictions were caused,
at least in part, by limited, unreliable, or even fraudulent
forensics, highlighting the importance of improving our
Nation's crime labs.
Mr. Chairman, this is a particularly appropriate moment to
be taking stock of Congress' efforts to improve access to DNA
testing and to increase oversight of forensic laboratories
around the country. As a result of the Supreme Court's
consideration of challenges to the lethal injection method of
execution, we are basically experiencing a national moratorium
on executions of death row inmates.
I am pleased that the committee is taking this opportunity
to consider these issues, which are even more poignant for
those sitting on death row. Since the reinstatement of the
modern death penalty, 15 death row inmates have been exonerated
as a result of DNA testing, including one in Oklahoma just this
past year.
But it is important to remember that the flaws in the
criminal justice system are not limited to forensics.
Inadequate defense counsel, racial and geographic disparities,
police and prosecutorial misconduct, and wrongful convictions
based solely on the testimony of a jailhouse snitch or a single
mistaken eyewitness identification all taint this country's
criminal justice system and, in particular, its use of the
death penalty. And all of these factors have led to the
wrongful convictions of individuals later exonerated by DNA
evidence.
So, again, I thank you, Mr. Chairman, for your leadership
on this and for allowing me to make some remarks.
Chairman Leahy. Well, thank you. I would note that Senator
Feingold was one of the strongest backers of getting this bill
through. It was helpful, again. You know, I'm frustrated as I
listen to all the testimony. Everybody knows what we want to
do, and the frustration is that it's not being done.
In the few minutes we have left, Mr. Neufeld, do we need to
change the law yet again or can the Justice Department fix the
problem under the Justice For All Act as it exists today?
Mr. Neufeld. Well, let me address, particularly on the
Coverdell issue, Your Honor. It is so obvious that when you
have a plane crash, the National Transportation Safety Board,
an external, independent entity, does the investigation. I'm on
the board of a medical center. When we have an unexpected
death, the New York State Department of Health conducts an
independent external investigation.
Everybody on the Senate four years ago said that's what we
want, because when there is a wrongful conviction, that's a
catastrophe. You want to find out what went wrong. We have
learned, at least in ourselves, that the second greatest cause
of wrongful convictions, after misidentifications, are missteps
in the crime labs, unfortunately.
Chairman Leahy. But can we fix this under the law without
changing the law? If the law if followed, can the law be
followed the way Congress intended?
Mr. Neufeld. Absolutely. As Glenn Fine said, the Department
of Justice, OJP, and NIJ has the duty to communicate the will
of Congress, and they can do that by managing these programs
and not just giving a rubber stamp when someone says ``I
certify'', but making sure that they are external, independent
entities that will be doing the investigations. Check up on
them to see if they're doing it.
Chairman Leahy. Because that goes back to what Mr.
Hammond--when he tells about the application being made,
obviously thought out, you have a well-respected Attorney
General in your State. The Attorney General, you said, signed
the application personally, so he obviously put his reputation
on the line, and you get back a one-paragraph, sorry, it ain't
enough, it's denied. Did you ever get an official--I realize
you said Dr. Morgan was very helpful and all that. But did you
ever get an official explanation from the Department, or a
legal opinion, why they just said no?
Mr. Hammond. No. I asked for it and was told that, for
reasons that weren't explained to me, that it could not be made
available to me and that it was not reviewable. There was no
place that we could go to ask for reconsideration. And, Mr.
Chairman, let me just contrast this very, very quickly with the
Coverdell Grant Program. If you look at the appendix from Mr.
Fine's last IG audit that came out last week--
Chairman Leahy. I did.
Mr. Hammond. If you look at the Arizona page--I'm searching
for the right word--it's embarrassing. We say, and apparently
it's enough, that our medical examiner's offices are supervised
by the Superior Court. Well, you know, that, in some respects,
might not be entirely false. I guess somebody can always go to
court. But that's not independent oversight. It's not even--
it's a joke.
Chairman Leahy. And I don't know of any court that is going
to be spending a whole lot of time supervising a medical
examiner.
Mr. Hammond. And our poor Attorney General, who I deeply
respect for his commitment, is identified as the oversight
agency for all of our crime labs. He doesn't have any oversight
power over those crime labs.
Chairman Leahy. Do you think, as you listened to all the
testimony here today and you think back to your application, do
you feel it fit the bill?
Mr. Hammond. Absolutely. I don't think there was a question
about it. I believe, now that the legislation has been
clarified, I believe--I pray--that we will find ourselves
funded very promptly.
Chairman Leahy. Now, I think I know what we have to do. As
I said, one of the reasons I'm holding this hearing today is
because a week from now the Attorney General is going to be
here and I'd like to be able to ask some of the questions. Roy
Krone. He was--I know this case very well because we dealt with
it. But for those who don't, could you just give us a real
thumbnail of what happened in the Roy Krone--
Mr. Hammond. Certainly. Certainly, I can. In 1991, a woman
named Kim Ancona was found dead in a bar early in the morning
in downtown Phoenix. She was nude. She had been sexually
assaulted and stabbed to death. Ray Krone was immediately
arrested as the perpetrator of that crime. He denied
culpability from the very beginning. He went to trial. He was
convicted, he was sentenced to death. His case went up on
appeal. His conviction was reversed. He came back, was tried a
second time and was found guilty again, and went off to serve a
life sentence. Luckily, DNA, several years later, proved him to
be absolutely innocent.
In the meantime, we began to look at the reasons why it
happened. Very quickly, it turns out there are two. One, was
bogus bite mark information.
Chairman Leahy. Bogus?
Mr. Hammond. Bite mark comparison information.
Chairman Leahy. Yes.
Mr. Hammond. There was a bite mark on the victim's left
breast that was matched by someone who passed himself off as a
forensic odontologist, who testified that in fact there was a
unique dentition. Ray became known as the Snaggle-Toothed
Killer because his dentition was not perfect, and the
imperfections seemed to match the mark on the breast. We now
know that's utter nonsense, because we now know who the real
perpetrator was. He has been apprehended, he is in prison, and
he has perfect teeth.
By the way, so does Ray because of the Great American
Makeover, which got more publicity than his exoneration. But
that was one. But most importantly, was the crime lab. The City
of Phoenix crime lab overlooked 11 pieces of important
biological evidence--hair, saliva--that were not compared to
anybody. When they eventually were, they found out that it
really belonged to Ken Phillips, and now the story is over.
Ray, with all--I think he deserves a lot of credit. He's been
traveling around the country now for a couple of years.
Chairman Leahy. I know he is.
Mr. Hammond. He testifies whenever he can.
Chairman Leahy. I appreciate the fact that he has. He is
very compelling in his testimony, as are you.
Mr. Marone, the last question from me. You said you were
frustrated by the Justice Department in the application. You
thought you had filled out what you were supposed to. Did they
offer to help you and work with you in any way to change your
application or improve it so that you could get the--
Mr. Marone. After hearing Larry, I think we got the same
form letter.
Chairman Leahy. Hit your microphone. Hit your microphone,
Mr. Marone.
Mr. Marone. After listening to Larry, I think we got the
same form letter and the same response.
Chairman Leahy. Yes. Well, I can tell you, as the author of
the Bloodsworth law, this was not what was intended. I sat here
through all these hearings. I was on the floor, shepherding
that bill through. Mr. Neufeld, you have spent countless hours
also on it. You know this is not what was intended.
I have no other questions, but Senator Feingold, please.
Senator Feingold. Thank you, Mr. Chairman.
Mr. Neufeld, let me join with what Mr. Hammond said about
you and your career.
Mr. Neufeld. Thank you.
Senator Feingold. Tell us about the case of Curtis McCarty,
the Oklahoma death row inmate who was finally exonerated this
past year, after more than two decades in prison, with the help
of the Innocence Project. What lessons can be learned from his
situation?
Mr. Neufeld. Well, sure. Mr. McCarty was convicted, again,
because of missteps by the Oklahoma State crime laboratory, to
wit, one Joyce Gilchrist, who was the hair examiner and did
serological work in that laboratory. She testified in a way
that was inconsistent with the prevailing science.
Unfortunately, you know, people would say in the community,
oh, the Joyce Gilchrists, the Zains, these are outliers, these
things only happen in one or two places. What we have
discovered, Senator Feingold, is that in more than half the
States--in more than half the States, crime laboratory hair
microscopists were making the same missteps.
In more than half the States, crime laboratory serologists
were testifying--were either distorting the testimony,
distorting the evidence, exaggerating the probative value of
the evidence to allow innocent people to be wrongly convicted.
So what we're talking about here is very, very simple, in Mr.
McCarty's case, or anybody else's case. Unless we go back and
do these independent external investigations, there's no
remedial action. There's no reexamination of old cases. We at
one time had a case in Virginia where another man came within
nine days of execution, and in that case the internal
laboratory did its own internal review and they said nothing
was wrong, we did nothing wrong.
It wasn't until, again, Governor Warner ordered an external
audit. That ASCLAB Lab did so and said, no, the internal audit
in Virginia was faulty. It didn't get to the right answers, and
indeed it didn't indicate the need for remedial action. We, as
an external entity, are calling for remedial action. We, as an
external entity, are calling for reexamination of old cases.
It's not in the interest of any laboratory, or any group of
lawyers or doctors, if they do their own investigation, to come
out with a very negative report and go back and look at all
those other cases. It's a huge burden for them. They shouldn't
have to do it. It should be internal--external and independent.
And if NIJ doesn't enforce that requirement that Congress
made very specific details about, then you're going to have to
change the statute. But to the rest of us in the public, it's
absolutely clear what you meant. It's absolutely clear that
when you said there has to be an entity in place and a process,
that the process had to be implemented. Just to have a process
sitting up there on a shelf and not being used isn't any good
to the public, isn't any good to the exonerated, and isn't any
good to crime victims.
Senator Feingold. You've been a leader in educating the
American people about the value of modern DNA testing as a key
to proving the innocence of people who have been wrongfully
convicted. Of course, modern DNA testing is especially critical
in capital cases where a person's innocence or guilt is
literally a matter of life and death.
But I'm concerned a little bit that sometimes we forget
that DNA testing is not the be-all, end-all solution for all
capital cases, because in many cases no biological evidence is
available to test.
Do you agree, as valuable as DNA testing is to the
integrity of the justice system and to ensuring that innocent
people are not executed, it is a factor in only a fraction of
all capital cases, and could you discuss the other problems
that can result in wrongful convictions that must be addressed
in order to ensure the fair and just administration of the
death penalty?
Mr. Neufeld. You wouldn't have to take my word for that.
The hearings were held in this room. In fact, they were called
by your colleague, Senator Sessions. Mr. Marone's predecessor,
Barry Fisher, came in from California. He was the head of the
consortium. He said it was his opinion that only in 10 percent
of the violent crimes would you have biological evidence
amenable to DNA testing. So if you don't fix all the other
causes of wrongful conviction that DNA will be, unfortunately,
unable to address, you will continue to have innocent people
sent to death row. And that's just a no-brainer if you will.
Everybody in criminal justice knows that. This is a limited
opportunity, though, to start dealing with those other causes,
like misidentifications, false confessions, and jailhouse
informants. But one of the other causes, one of the biggest
causes, is other forensic science, not DNA, but all those other
disciplines that they do in the crime laboratory that are the
meat and potatoes of crime laboratories. Mr. Hammond mentioned
bite marks. We have five other cases where people were wrongly
convicted based on bite marks, yet people are still plying that
trade. We have 40 some-odd cases where people were wrongly
convicted based on crime lab people coming and saying the hairs
matched, yet there are folks still plying that trade. There has
to be the external entity there to fix it, make the remedial
action, and prevent these things from happening again, and
again, and again.
Senator Feingold. Thank you, Mr. Neufeld.
Mr. Neufeld. Thank you.
Senator Feingold. Thank you, Mr. Chairman.
Chairman Leahy. Thank you, gentlemen. Thank you. We will
keep the record open for any additions you want to make, and
questions others might want to make.
We stand in recess.
[Whereupon, at 11:42 a.m. the Committee was adjourned.]
[Questions and answers and submission for the record
follow.]
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