[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 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 C O N T E N T S ---------- 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. 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