[Senate Hearing 110-873]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 110-873



                               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
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
            Bruce A. Cohen, Chief Counsel and Staff Director
      Michael O'Neill, Republican Chief Counsel and Staff Director

51-813                    WASHINGTON : 2009
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                            C O N T E N T S




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


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



                      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.


    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?
    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 
    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?
    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.
    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.
    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.

                   JUSTICE, WASHINGTON, D.C.

    Mr. Fine. Mr. Chairman, thank you for inviting me to 
testify about the Department of Justice's oversight of grant 
    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 
    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.

                   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 
    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 
    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 
    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 
    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 
    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 
    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.


    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 
    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 
    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.


    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 
    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. 
    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 
    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 

                  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 
    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 
    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 
    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 
    Chairman Leahy. Sure.

                       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 
    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 
    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 
    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