[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
REAUTHORIZATION OF THE INNOCENCE PROTECTION ACT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
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SEPTEMBER 22, 2009
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Serial No. 111-74
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Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.govFOR
SPINE deg.
REAUTHORIZATION OF THE INNOCENCE PROTECTION ACT
REAUTHORIZATION OF THE INNOCENCE PROTECTION ACT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 22, 2009
__________
Serial No. 111-74
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
----------
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Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida STEVE KING, Iowa
STEVE COHEN, Tennessee TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr., LOUIE GOHMERT, Texas
Georgia JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico TED POE, Texas
MIKE QUIGLEY, Illinois JASON CHAFFETZ, Utah
LUIS V. GUTIERREZ, Illinois TOM ROONEY, Florida
BRAD SHERMAN, California GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York
Perry Apelbaum, Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on Crime, Terrorism, and Homeland Security
ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman
PEDRO PIERLUISI, Puerto Rico LOUIE GOHMERT, Texas
JERROLD NADLER, New York TED POE, Texas
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee TOM ROONEY, Florida
ANTHONY D. WEINER, New York
DEBBIE WASSERMAN SCHULTZ, Florida
MIKE QUIGLEY, Illinois
Bobby Vassar, Chief Counsel
Caroline Lynch, Minority Counsel
C O N T E N T S
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SEPTEMBER 22, 2009
Page
OPENING STATEMENTS
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Chairman, Subcommittee
on Crime, Terrorism, and Homeland Security..................... 1
The Honorable Louie Gohmert, a Representative in Congress from
the State of Texas, and Ranking Member, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 3
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Chairman, Committee on the
Judiciary...................................................... 4
The Honorable Mike Quigley, a Representative in Congress from the
State of Illinois, and Member, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 5
WITNESSES
Ms. Lynn Overmann, Senior Advisor, Office of Justice Programs,
U.S. Department of Justice, Washington, DC
Oral Testimony................................................. 7
Prepared Statement............................................. 9
Mr. Barry C. Scheck, Co-Director and Co-Founder, The Innocence
Project, Benjamin N. Cardozo School of Law, New York, NY
Oral Testimony................................................. 20
Prepared Statement............................................. 22
Karen A. Goodrow, Esq., Director, Division of Public Defender
Services, c/o McCarter & English, Hartford, CT
Oral Testimony................................................. 170
Prepared Statement............................................. 174
Mr. Peter M. Marone, Director, Virginia Department of Forensic
Science, Richmond, VA
Oral Testimony................................................. 202
Prepared Statement............................................. 206
Mr. Stephen B. Bright, President and Senior Counsel, Southern
Center for Human Rights, Atlanta, GA
Oral Testimony................................................. 213
Prepared Statement............................................. 216
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of John F. Terzano, President, The Justice
Project, submitted by the Honorable Robert C. ``Bobby'' Scott,
a Representative in Congress from the State of Virginia, and
Chairman, Subcommittee on Crime, Terrorism, and Homeland
Security....................................................... 256
APPENDIX
Material Submitted for the Hearing Record
H.R. 5107, the ``Justice for All Act of 2004''................... 289
REAUTHORIZATION OF THE INNOCENCE PROTECTION ACT
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TUESDAY, SEPTEMBER 22, 2009
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:30 p.m., in
room 2141, Rayburn House Office Building, the Honorable Robert
C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
Present: Representatives Scott, Conyers, Cohen, Quigley,
and Gohmert.
Staff Present: (Majority) Jesselyn McCurdy, Counsel; Karen
Wilkinson, Fellow, Federal Public Defender Office Detailee; Ron
LeGrand, Counsel; Veronica Eligan, Professional Staff Member;
(Minority) Caroline Lynch, Counsel; and Robert Woldt, FBI
Detailee.
Mr. Scott. The Innocence Protection Act, a part of the
Justice for All Act of 2004, is set to expire on September 30,
2009. There is currently no pending legislation for
reauthorization of the IPA.
Today we will hear testimony about issues surrounding the
actual, specifically the issues that have developed during its
implementation and what we have done to address those problems.
The Post-Conviction DNA Testing Grant Program and the Capital
Representation Improvement Grant Program are also going to be
considered.
Now, the Bloodsworth Grants Program authorizes the Attorney
General to grant funding for States for post-conviction DNA
testing to help ascertain whether individuals have been wrongly
convicted. The Innocence Project reports that to date there
have been 242 post-conviction exonerations through DNA testing
in the United States, spanning 34 States. Seventeen of the 242
exonerees were on death row, and true suspects and/or
perpetrators have been identified in 104 of the DNA exoneration
cases. The average length of time served by exonerees is 12
years. Total number of years served is approximately 3,019. The
average age of exonerees at the time of their wrongful
conviction was 26.
The most recent exoneree is Mr. Kenneth Ireland, who is
with us here today. Mr. Ireland spent 21 years in prison
wrongfully convicted of rape and murder of a female factory
worker and mother of four until DNA testing of crucial evidence
excluded him as a contributor of the DNA specimen. To date the
actual murderer has not been identified.
The success of post-conviction DNA is evident by the
exonerations it has yielded and has the potential to exonerate
what is estimated to be hundreds more who are wrongly
convicted. Initially, post-conviction DNA testing under the
Bloodsworth Grant Program was seriously underutilized due to
unattainable standards for grant applications. Congress had
funded a total of $5 million per year for the grants for fiscal
years 2005 to 2009, but the funds were not distributed until
fiscal year 2008. We learned that statutory language in the act
had set the evidence retention standards for authorizing the
grants so high as to make it almost impossible for any State to
qualify. Only three States, Virginia, Connecticut and Arizona,
had applied for the grants in the first cycle, but none were
successful.
We eventually corrected the problem through appropriations
language, but it is disappointing to know that such a technical
problem went as long as it did before correction, given that
the lives and freedom of wrongfully convicted people hung in
the balance. For fiscal year 2008 Congress appropriated an
additional $4.8 million and asserted a temporary change in the
statutory language that OJP suggested so that applicant States
would be able to meet the requirements for grant under the
Innocence Protection Act.
Thus, $11.8 million became available along with the new
temporary language intended to facilitate the grant post-
conviction DNA testing funds. I understand that five States
have applied for those grants, and I am looking forward to
hearing testimony about whether the new standard achieved the
desired outcome for those applications. I also look forward to
working with my colleagues to determine whether or not the
temporary language inserted into the fiscal year 2008 should be
made permanent or whether we should make other corrections in
the law.
DNA technology has given us the means to identify the
wrongly convicted. We now have the responsibility to use those
means. DNA testing has indeed been an invaluable tool for
ensuring that the guilty are identified beyond a reasonable
doubt, and that the wrongfully accused and convicted are
cleared of suspicion with their reputations restored.
However, like any tool, it is only successful to the extent
to which it is employed. We will hear today from some of those
most qualified to provide insights and suggestions as to ways
of correcting any remaining problems in the act and both the
Bloodsworth grant and the Innocence Protection act generally.
We will also hear testimony about the Capital Defense
Improvement Grants Program. Part of the Innocence Protection
Act, section 421 of the act, authorizes the U.S. Attorney
General to provide grants to States for the purpose of
establishing, implementing, or improving an effective system
for providing competent legal representation of indigent
defendants in capital cases. In like manner, section 422
provides for grants of an equal amount to be awarded to
prosecutors at the same time in order to enhance their ability
to represent the public in State capital cases. Neither of
these grant programs permit the funds to be used directly or
indirectly for the representation or prosecution of specific
capital cases. Essentially the funds are limited to training
and support for both defenders and prosecutors.
While this type of grant program represents a departure
from the historic trend of Federal funding going solely to
State prosecution, some of the indigent defense advocate
community have complained that this equitable grant requirement
of the program does little, if anything, to decrease the
disparity between the indigent defense and prosecution
functions in State capital cases.
Every State has a funded competent prosecution structure in
place. The same is not true for indigent defense. There are
States like Connecticut and North Carolina that have funded,
organized indigent defenders or Public Defender systems. Then
there are others.
In a briefing paper submitted to the Committee earlier this
year, a coalition of advocates comprised of the ACLU, the
Brennan Center for Justice, the Constitution Project, the
Innocence Project, and the NAACP Legal Defense and Education
Fund, and others declared that, and I quote, the indigent
defense services in the United States are in a state of
perpetual crisis. In 1999, a Department of Justice report
concluded that indigent defense was in a chronic state of
crisis.
So everybody agrees that indigent defense, as a whole,
needs more funding. Studies clearly show that lack of adequate
funding has led to crushing caseloads, insufficient pay for
defense attorneys, lack of proper training and oversight of
defense attorneys, insufficient funding for investigators,
experts and mental health professionals, lack of independence
by defense and, ultimately, the wrongful conviction of the
innocent.
In Texas, six people have been executed without any habeas
corpus review because their lawyers missed the statute of
limitations. Three of the six were represented by the same
lawyer. The lawyer falsely claimed that he tried to file, but
the time stamp machine at the courthouse was broken. It was
not. Believe it or not, the lawyer is still practicing; is
currently representing over 400 people accused of crimes.
Many States have been either unwilling or unable to
adequately fund and administer indigent defense systems.
Instead the judiciary is permitted to inject itself into the
defense function, forcing attorneys to carry excessive
caseloads, failing to provide attorneys with investigators,
experts and support services they need to uphold the basic
responsibilities of adequate representation, neglecting to
provide any type of meaningful supervision to hold lawyers
accountable for less than zealous representation, and failing
to make available ongoing training to keep attorneys abreast of
ever evolving criminal justice sciences. These poorly
administered and underfunded systems compromise the ability of
lawyers employed by or under contract with those systems to
meet their constitutional and ethical obligations to their
clients.
So I look forward to hearing from our witnesses on the
progress with the implementation of the Innocence Protection
Act. And now it is my pleasure to recognize the esteemed
Ranking Member of the Subcommittee, the gentleman from Texas,
Judge Gohmert.
Mr. Gohmert. Thank you, Chairman Scott. I do appreciate the
holding of this hearing on the reauthorization of Kirk
Bloodsworth Post-Conviction DNA Testing Program in the capital
case litigation initiative, both of which were authorized by
the Innocence Protection Act of 2004. President Bush announced
his DNA initiative in 2003 to provide funds and attention to
the areas of DNA backlog issues, post-conviction testing and
capacity enhancement. He did so with the understanding that the
responsible and timely use of DNA technology would serve the
interests of justice in courtrooms and communities throughout
this country.
I point this out because all too often our forensic
capabilities, particularly post-conviction DNA testing, is
portrayed as a left or right issue. Nothing could be farther
from the truth. We should be about seeking justice regardless
of party or position on the political spectrum. From its
outset, the DNA initiative sought to harness DNA's tremendous
potential to simultaneously serve victims, aid law enforcement
and protect the innocent. Today, 44 States and the Federal
Government provide for post-conviction DNA testing where
circumstances dictate, many modeled on Federal legislation
requiring the post-conviction retention of biological samples
and providing for testing upon legitimate claims of innocence.
A little over a year ago the Department of Justice had
received just eight grant applicants in 4 years of the Kirk
Bloodsworth program, with only five grant awards, all in fiscal
year 2008. At that time, I asked the Department why this
program was being underutilized. Today that number has grown to
18 applicant States and 14 grant recipients. While the progress
is notable, it is just as important for Congress to understand
what is behind these numbers as it was when only five States
applied for grants.
With 44 States providing for post-conviction DNA testing,
and the public outcry each time even a single person is
exonerated through the use of DNA, it is obvious that these
numbers don't add up, particularly in light of Congress's
efforts to make the program language less restrictive in 2008.
Given these facts, I am curious why only 18 States have
applied, and I look forward to hearing our panel's views on
what the future of this program holds, how we might improve it,
and whether or not more needs to be done. And I do thank you
for being here because I know the pay is not all that good
since it is zero. But we do appreciate your being here today
and look forward to your input.
Thank you.
Mr. Scott. Thank you. The gentleman from Michigan, the
Chairman of the full Committee, Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman. I congratulate you
and Judge Gohmert on this hearing because it is so important.
The amount of injustice that is going on in the criminal
justice system is criminal. I mean, it is really so bad and it
has been going on so long that people are getting kind of used
to it; like that is just the way it is; there is nothing that
can be done about it. And this hearing is a statement that
there are some of us who think that there is something that can
be done about it.
Attorney Diana Oo was with me in Angola prison in
Louisiana. We were visiting three inmates. No, two inmates, one
had been released somehow. But they were all sentenced to life
imprisonment in solitary confinement. That means you get out 1
hour a day every day for exercise or the yard, and that is it.
You go back into solitary confinement. And what did the
prisoners do there? Well, we went to one place where they were
building their own coffins. How do you like that for training
on the job?
And so I come to this as one who has had a lot of problems
with this. There is a University of Michigan study that
documented that many of the people that were found innocent
served an average of 10 years in prison before release. The
number of false convictions can possibly be in the tens of
thousands in the United States of America. So we have got a big
job on our hands. I have been meeting with the Michigan public
defenders and they tell me about, that they can't get
reimbursed even anywhere near adequately to compensate for what
they would have to do to put on a halfway decent defense. So it
is not good. And pro bono is not all that high either. There
are some low numbers there.
So, Mr. Chairman, Judge Gohmert, this is where the rubber
hits the road in the whole idea of justice because--and I don't
want to start any class warfare, but it is only the people
without any income that have to have public defenders, that
have to have pro bono, have to have young lawyers assigned
cases that fall asleep or forget to--how could you have a case
and forget that there is a limitation period on the appeal that
could be the difference between whether a person is executed or
not?
This is the beginning of an incredibly enormously important
hearing, and I commend you both.
Mr. Scott. The gentleman has time remaining. Were you going
to yield time to the gentleman from----
Mr. Conyers. Quigley? Never. No, nothing for Quigley. Well,
okay.
Mr. Quigley. Thank you, Mr. Chairman and Mr. Chairman. And
I just want to focus on what the Ranking Member discussed, and
that was the issues of justice here. For what it is worth, a
10-year veteran of 26 in California and Chicago as a criminal
defense attorney, I had a ringside seat to the inequities that
exist. And from my own home State, Illinois, the record is a
sad one. We have exonerated, which I guess is the good news,
more people on death row than we have executed. But it is a
sorry record of the initial convictions.
In addition, a good friend of mine is the Public Defender
of Cook County now, former Judge A.C. Cunningham. Earlier this
year, he was within a day of withdrawing from all their capital
cases because their entire amount of funding from the State of
Illinois was going to be cut off. So for those who think this
is a problem from a while ago and DNA has cured it, it is
simply not the case. It is extraordinary to watch this.
And when I left 26th Street I was elected as a Cook County
Commissioner. My first task was to help settle a case called
the Ford Heights four, wildly notorious, where we found four
people who were innocent guilty. They were put on death row.
One was within days of being executed. And if I can't strike at
the hearts of those who don't like this sort of thing, I would
remind them that we settled for $36 million, something which
sadly takes place all too often in our country.
So I appreciate the indulgence of the Chairman, and our
panelists' time and effort. Thank you.
Mr. Scott. Thank you. We will you now introduce our
panelists. The first witness is Ms. Lynn Overmann, Senior
Advisor, Office of Justice Programs, with the U.S. Department
of Justice. Ms. Overmann is an alumni of Bryn Mawr College and
New York University School of Law. Immediately prior to coming
to the Justice Department in May of this year, she was in
private practice. Prior to that she served as Assistant Public
Defender with the Miami-Dade Public Defender's Office.
Our second witness will be Barry Scheck, who is a Professor
of Law At Benjamin Cardozo School of Law in New York. He and
his colleague, Peter Neufeld, co-founded and co-direct the
Innocence Project, an independent, nonprofit organization that
is closely affiliated with the law school which uses DNA
evidence to exonerate the wrongly convicted. In 17 years of
existence the project has either represented or assisted the
representation of the vast majority of the 242 individuals who
have been exonerated through post-conviction testing. And Mr.
Scheck and Mr. Neufeld were moving forces in getting the
Innocence Protection Act initially passed.
Third witness is Karen Goodrow, who is the Director of the
Connecticut Innocence Project, a unit within the Public
Defender services of the State of Connecticut. She is an alumni
of Western New England College School of Law, and has worked
primarily in the public sector. 2006, she used the post-
conviction DNA testing. Through the use of post-conviction DNA
testing she and attorney Brian Carlow secured the release of
James Calvin Tillman, a gentleman who served 18\1/2\ in prison
for crimes he did not commit. Has also represented Mr. Miguel
Roman and Mr. Kenneth Ireland, both of whom were exonerated
through post-conviction DNA testing after having been
incarcerated in excess of 20 years.
Next witness is Peter Marone, Director of the Commonwealth
of Virginia Department of Forensic Sciences, and I am proud to
introduce him because Virginia has a reputation of being in the
forefront of DNA testing. I believe the first conviction for
DNA testing was in Virginia. If it wasn't the first it was one
of the first. It was the first?
Mr. Marone. One of the first.
Mr. Scott. One of the first and we have been in the
forefront, his department has been in the forefront of forensic
sciences for many years. He graduated from the University of
Pittsburgh with both bachelor's and master's degrees in
chemistry, and he was appointed Director of the Virginia
Department of Forensic Science in February 2007. He is a member
of numerous professional forensic science organizations.
And finally Steven Bright is President and Senior Counsel
of the Southern Center for Human Rights in Atlanta, teaches at
Yale and Georgetown Law Schools. His work at the center has
included representatives of people facing death penalty trials
and appeals in the State and Federal courts, class action
lawsuits to remedy human rights violations in prisons and jails
and challenges to inadequate representation provided to poor
people accused of crimes. He has received the American Bar
Association's Thurgood Marshall Award in 1998, named news maker
of the year in 2003 for his contributions in bringing about the
creation of a Public Defender system in Georgia, and he
received the Defense Lawyers Lifetime Achievement Award from
the National Association of Criminal Defense Lawyers in 2008.
Each witness's written testimony will be entered into the
record in its entirety, and I would ask each witness to
summarize his or her testimony in 5 minutes or less. To help
stay within that time limit there is a device on the table. It
will start green, turn to yellow when you have approximately a
minute to go, and it will turn red when your 5 minutes have
expired.
Ms. Overmann.
TESTIMONY OF LYNN OVERMANN, SENIOR ADVISOR, OFFICE OF JUSTICE
PROGRAMS, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC
Ms. Overmann. Mr. Chairman, Ranking Member Gohmert, and
Members of the Subcommittee, I am pleased to have the
opportunity to discuss the Department of Justice's efforts to
implement the Innocence Protection Act of 2004. We appreciate
the Subcommittee's interest in this matter.
During a recent speech to the American Council of Chief
Defenders, U.S. Attorney General Holder renewed the
Department's commitment to improve the quality of indigent
defense. In his speech, the Attorney General candidly
acknowledged that there is a crisis in indigent defense in this
country. Resources for Public Defender programs lag far behind
other justice system programs, constituting only about 3
percent of all criminal justice expenditures in some of our
Nation's largest counties. We know that defenders in many
jurisdictions carry huge caseloads that make it difficult for
them to fulfill their legal and ethical responsibilities to
their clients.
Our challenge is to ensure that the accused have a
competent defense and that, in the event that an innocent
person is convicted, that person will ultimately be exonerated.
At the Office of Justice Programs, or OJP, we understand
that this challenge is not new. As a result, OJP has taken
several steps to address this issue. We have multiple
initiatives covering both our National Institute of Justice, or
NIJ, and our Bureau of Justice Assistance, BJA.
NIJ administers the Kirk Bloodsworth Post-Conviction DNA
Testing Grant Program. The program helps States defray the
costs associated with post-conviction DNA testing of rape,
murder, and nonnegligent manslaughter cases. To date, NIJ has
awarded over $17.6 million to 14 States through this program.
Fiscal year 2009 is the second year that NIJ awarded
Bloodsworth grants. In fiscal year 2008 five States applied for
and received awards totaling over $7.8 million. This year NIJ
received 13 applications and awarded grants to nine States for
a total of more than $9.8 million.
All of the funds appropriated for this program from fiscal
year 2006 through fiscal year 2009 have now been awarded. I am
aware that there have been concerns about the delay in awarding
these funds. I have addressed the reasons for this delay in my
written testimony. But I wanted to highlight some of the steps
OJP took to help address the problem.
In fiscal year 2008, OJP worked closely with the House and
Senate Appropriations Committees to ease the statutory
requirements that presented problems with awarding the
Bloodsworth funds. In both fiscal year 2008 and fiscal year
2009, NIJ conducted extensive outreach to ensure that key State
and local government officials, as well as forensic
professionals, were aware of the program to help encourage even
more applications in fiscal year 2009. These efforts included a
post-conviction symposium with practitioners from 46 States. We
are pleased that this outreach helped lead to the increase in
applications in fiscal year 2009 and the resulting increase in
awards this year. We plan to continue to seek input from the
field in the future.
Although the Bloodsworth program may have gotten off to a
slow start, we are confident that it is now moving in the right
direction. We look forward to continuing to work with Congress
to ensure that contingent on funding availability the program
continues to grow.
Another key OJP effort is the Capital Case Litigation
Initiative, or CCLI, which BJA established in fiscal year 2005.
CCLI is a partnership to create specialized training for trial
judges, State and local defense counsel, and prosecutors who
litigate death penalty cases. In fiscal year 2009 BJA focused
CCLI funding on making available high quality training on a
competitive basis to capital case litigators in States that
demonstrate the greatest need. By the end of September, BJA
will have awarded more than 1.8 million in funding to eight
States. Per the Innocence Protection Act, funding is split
equally between prosecutor and defense purposes. BJA's goal
with CCLI remains ensuring that the limited funds available are
used in the most productive ways possible to improve justice
for all.
OJP's support for indigent defense and exoneration
initiatives goes beyond the programs established by the
Innocence Protection Act. In fiscal year 2009 BJA initiated two
new programs. One program focuses on improving the functioning
of the criminal justice system and includes funding for
indigent defenders. The second program, the Wrongful
Prosecution Review Program, provides funding to nonprofit
organizations and Public Defender offices dedicated to
exonerating the innocent.
We are also planning a National Indigent Defense
Conference, which will be held February here in Washington.
Public defenders from each state will be invited to bring with
them a key state stakeholder to help foster collaboration
within the States.
Finally, the Attorney General has convened a working group
within the Department of Justice to address the ways the
Department can work with our State and local partners to help
improve indigent defense services. Please be assured that
Attorney General Holder, the Department of Justice, and OJP in
particular are committed to working with our State, local, and
tribal partners to protect innocent people who are wrongfully
convicted.
We are also committed to working with Congress on this
issue. As the Attorney General recently said, when a system
breaks down we all lose.
This concludes my statement, Mr. Chairman. Thank you for
the opportunity to testify today. I welcome the opportunity to
answer any questions the Subcommittee may have.
[The prepared statement of Ms. Overmann follows:]
Prepared Statement of Lynn Overmann
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Scott. Thank you very much.
Mr. Scheck.
TESTIMONY OF BARRY C. SCHECK, CO-DIRECTOR AND CO-FOUNDER, THE
INNOCENCE PROJECT, BENJAMIN N. CARDOZO SCHOOL OF LAW, NEW YORK,
NY
Mr. Scheck. First I would like to thank Chairman Scott,
Ranking Member Gohmert and, of course, Chairman Conyers. I will
never forget going to Angola prison, and you should note that
Herman Wallace's Federal habeas--Albert Woodfox's Federal
habeas application has been granted by the district court since
we were there. It is now on appeal to the, Fifth Circuit, and I
am hopeful that he will be exonerated.
I would like to get right to the point because we have put
in extensive testimony, and we are indebted to this Committee
because you were able to get changes in the appropriation
language so we could open up that Bloodsworth money.
But I would like to go back to the very beginning. And if
you look at the Justice for All Act, there were actually three
other provisions aside from 412, which is Bloodsworth, but
there were three other provisions: section 303 that dealt with
DNA training and education for law enforcement, correction
personnel, and court officers; section 305, DNA research and
development; section 308, DNA identification of missing
persons. And originally, all of those provisions were supposed
to be tied to section 413, which required that each State come
up with schemes for evidence preservation, and that they also
pass a post-conviction DNA statute that was comparable to the
Federal act.
When the Bush administration began implementing the Justice
for All Act, it appropriated by itself, with the President's
initiative, monies for 303, 305 and 308, and detached it from
413. And most of the money is in 303, 305 and 308. And as Ms.
Overmann and I were discussing, a lot of that money actually
goes toward services that crime labs use to preserve evidence
and for administration. So our proposal very, very simply is,
number one, when you reauthorize this act, put section 413
requirements on 303, 305 and 308.
Now, as far as those evidence preservation requirements are
concerned, obviously the changes made in the appropriations
language were very helpful in opening up the money. But, as Mr.
Marone and I were talking before the hearing, we at the
Innocence Project recognize as we go from State to State that
we have to be completely realistic about what States can do in
terms of preserving evidence. And so what we are proposing now
is that there ought to be a national working group on evidence
preservation that can come up with some good and realistic
schemes and definitions, things, requirements that the States
can meet. We don't want States not to get money under 303, 305,
308, much less the Bloodsworth Act, by being unable to meet
overly stringent and unrealistic evidence preservation
requirements. But those should be in place for everyone's sake.
We included, you know, just as atmospherics, a chart in our
testimony here detailing exonerees in each jurisdiction of
every Member of this Committee, where there had been what I
would like to call an Innocence Project trifecta, a DNA
exoneration, a DNA data bank hit, and an innocent perpetrator
apprehended. And when we calculated these numbers, in terms of
the number of--I am sorry--exoneration of an innocent, a data
bank hit on the real perpetrator, and the subsequent
prosecution of that real perpetrator. And we were very careful.
For those friends of ours in Florida, there is one case
here, Jerry Frank Townsend and Frank Lee Smith. Frank Lee Smith
was sentenced to death, was on death row. He died when the DNA
exonerated him.* Jerry Frank Townsend, who collected $4 million
yesterday in Florida courts in a compensation case, pled guilty
as a mentally retarded man to eight rape murders that he didn't
commit. And all of those crimes, Frank Lee Smith's crime, when
he was convicted, and Jerry Frank Townsend were committed by
one man, Eddie Lee Moseley. And law enforcement officials in
the Florida and Dade County area believe that Eddie Lee Moseley
committed 62 rapes and murders for which he was not apprehended
while these two people are in jail, one of them on death row.
---------------------------------------------------------------------------
*On December 15, 2000, 11 months after his death, and 14 years
after his 1986 conviction, Frank Lee Smith was exonerated based on
exculpatory DNA testing results.
---------------------------------------------------------------------------
Now, the Innocence Project's cases that Bloodsworth
addresses are really cold cases. And if evidence preservation
requirements are put into place, police can also, in an
expeditious way, solve cold cases. So this is helping everyone.
And that is why you should extend 413 requirements across the
board to all categories.
Two other simple fixes that we think would help this
legislation, and it has to do with the Federal Post-Conviction
DNA Act. We believe that there ought to be a provision in the
act, common sense, that a Federal district court judge and
hopefully the States will begin to apply this as well, on an
application from a defense lawyer, either before the trial or
after the trial, where there has been a DNA profile created by
a CODIS approved laboratory, a judge on a showing of good cause
or in the interest of justice can order that profile run in the
CODIS data bank to get a hit. Unfortunately, in some instances
we have run into situations in States where police or
prosecutors will not run DNA profiles from crime scenes in the
data bank, either before the trial or after the trial. And we
need judges to have the authority to order that when necessary
in certain cases. It is just common sense. And that is
something that should be added, as well as a slight definition.
In the Federal Act, they say that you have to show that,
quote, identity was at issue in your trial. And some have
construed this to mean that if somebody gave a confession, then
identity wasn't at issue. And I don't have to tell this panel
the number of cases where DNA exonerations have proven that
there were false confessions. There is just too many of them to
even go into, whether it be Earl Washington in Virginia or
Eddie Joe Lloyd in Michigan, or Chris Achoa in Texas, just to
name a few, or God knows how many in Illinois, Mr. Quigley.
Those are my remarks.
[The prepared statement of Mr. Scheck follows:]
Prepared Statement of Barry C. Scheck
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Scott. Thank you.
Ms. Goodrow.
TESTIMONY OF KAREN A. GOODROW, ESQ., DIRECTOR, DIVISION OF
PUBLIC DEFENDER SERVICES, c/o McCARTER & ENGLISH, HARTFORD, CT
Ms. Goodrow. Thank you for having us here today. My name is
Karen Goodrow. I am the Director of the Connecticut Innocence
Project. In Connecticut we are part of the Public Defender
Services Division, so we are a unit of the Public Defender's
Office.
Present with me is Ricky Ireland. Kenneth is his formal
name, but we call him Ricky. And he has been out since August
5, I think he can tell us the number of days, 2009, after post-
conviction DNA testing established his innocence. He was
exonerated on August 19, 2009, when all of the charges were
dismissed. He was convicted of killing Barbara Pelkey, a mother
of four, during the Labor Day Weekend of 1986. The case was
cold for a couple of years and he was arrested on August 11,
1988, spent the first year or so in a county jail and then,
after trial, was convicted just a day, we calculated earlier in
the cafeteria, the day after his 20th birthday, where he has
been until just a few short weeks ago.
The amazing story--I know you have heard and read about
these stories all the time. The amazing thing is getting up at
5 in the morning to hopefully make my son's lunch, you know,
before I get out the door to pick Ricky up. He lives about 40
minutes from me. And I am thinking, 6 or 7 weeks ago I was
visiting Ricky at the prison where he had been. We had been
delivering news to him that, yes, the DNA evidence establishes
what we always knew, that you are innocent, and the other two
people that were never arrested that the State believed
committed this offense, they are not on that DNA either. And we
were discussing that with Ricky.
I don't think he is concerned that I am going to tell you
this. And he just didn't believe, A, that that was the
evidence, B, that this was going to get him anywhere, because
after all we are public defenders. We are part of the same
State system that got him in this place. And after some time we
said, you know, you are going to be going to court, Ricky. And
I said you are going to have to work with us here because they
are not going to take you back to the prison. Once the judge
grants the petition for new trial based on the DNA evidence and
you are ordered released you are not going to be coming back
here.
And we joke about that a little bit, just to tell you and
to demonstrate the level, the level of despair for these men
and women who are innocent and have been convicted and every
step along the way they have been shot down. At trial he was
convicted. He was represented by a public defender. The
appellate court said nope, this conviction is solid. There is
sufficient evidence to hold this up. The habeas court, he went
through a number of different lawyers, one of whom was
ultimately disbarred.
This is in Connecticut where, frankly, you probably know
this already. In Connecticut they like to think that we don't
make mistakes. Horrible mistakes happen. Sometime around August
of 2004, if we can go back just about 5 years before Ricky was
released, the chief public defender in Connecticut went to a
conference and they were talking about innocence stuff and I
think Barry and/or Peter were there. And he came back and he
said, you know, we should start an Innocence Project in
Connecticut. But we didn't have any extra funds, so he asked me
and Brian Carlow would we cochair this project while we ran
courthouses anyway and just cobble together maybe a few hours
once or twice a week to work on innocence cases.
So that is how we breathed life into an Innocence Project
in Connecticut. We obviously had lots of help from our friends
in New York. Barry, specifically, Rebecca, who is here, and
Steve and others. And then somewhere around February of 2006
the law firm of McCarter & English, just on a pro bono basis
said, gee, you need some space. You don't have any funding.
Here. You can live here with us. So they have housed us and
provided pro bono assistance since that time.
Right around 2006 we applied for that cycle of Bloodsworth
money. And my understanding was that Connecticut and Arizona
and a third State that I have lost in my brain, were the only
three to apply, and that only Arizona and Connecticut were
eligible. For reasons that are still not clear to me today the
money was not granted.
There is no question in my mind that Mr. Ireland could have
been released earlier had we had those additional funds
because, remember that at that point, we had not received our
State funding yet. We were still literally going around with a
box in our hand that said in red magic marker, CTIP,
Connecticut Innocence Project.
In June of 2006, still underfunded by the state, but with
the help of our friends from New York and the help of our
friends from McCarter and the help of the Public Defender's
Office, we managed to get testing for Mr. Tillman. And Mr.
Tillman was released on June 6, 2006 after spending 18\1/2\
years in prison for a rape that he didn't commit. Mr. Tillman
was compensated in the amount of $5 million the following year
by the State legislature. There was, at that point, no
compensation statute, but they passed a special act for him.
Then we received our funding from the State and it is about
less than $500,000. And that covers me, a second lawyer, a
secretary, and an investigator. And of course we don't have to
pay for our offices because we are getting that pro bono, thank
goodness, from the law firm.
In November of 2008, Mr. Roman, who served approximately
19\1/2\ years in prison for a murder he did not commit, was
released based on post-conviction DNA testing. And I am
confident again that had there been money in place prior in
2006, Mr. Roman would have gotten out earlier. Mr. Roman was
exonerated in April of 2009 when the charges were dismissed.
And that brings us to August with Mr. Ireland, when the
post-conviction testing established his innocence.
I can't tell you how critical it is the decision that is
about to be made in terms of continuing this funding. These are
real live individuals and, unfortunately, the people certainly
in the Public Defender's Office who are doing this work, are
doing the best they can do, but we need assistance as well. And
I am very concerned about some of the States where they don't
have the kind of support that I have. I recognize that I am
running a very fortunate shop. But there are many people out
there in many projects that need to have this funding. I would
just urge you to continue.
One thing, to follow up with what Barry said on the
importance of evidence preservation, we have been very lucky in
Connecticut and I think part of that luck, frankly, is that we
are a small State geographically. We have only one State
forensic lab. That is the lab I tend to use with my cases
because I like them and they do good work, which is not to say
that we couldn't hire privately if we wished to. But we have a
very small State and we have good relationships. And I have
been doing this work for about 25 years. I think I was 10 when
I started. About 25 years. And we all know each other and I can
call the lab and say, gee, you know, any luck with that CODIS
search, and they are very collaborative, very cooperative. In
each one of these cases we had the full cooperation of the
State's Attorney, the forensics lab, and the Police Department.
I also understand that that is not the norm. But in terms of
evidence preservation, the key physical evidence that
exonerated Mr. Tillman was a dress and stockings from the rape
victim that had been put into evidence at the courthouse at the
time of the trial and subsequently, during a habeas proceeding,
was sent to a private DNA lab that then went under. That
evidence was ultimately found at the habeas lawyer's archives.
It should have been sent back to the clerk's office where it
came from. That was the order of the court. But because it was
sent there under the old technology and there wasn't any real
result the first time around, nobody--I think, I am filling in
the blanks, but I am guessing that nobody thought this evidence
was very important. And that is where it ended up. Yet, because
of the diligent people at Legal Aid of Hartford, they were able
to finally find that evidence. We were able to establish the
chain of custody and have it tested.
Same situation with Mr. Roman. For a while, we understood
the evidence wasn't to be found. This was key ligatures used to
bind and strangle the victim that were in the possession of the
Police Department in Hartford and at first they couldn't find
them. Then, with more tracking, they were able to find them
because they were kept in a separate place than they originally
thought. Again, Mr. Roman spent nearly 20 years in prison.
With regard to Mr. Ireland's case, the evidence essentially
was found where it was believed to be found, or was believed to
be, however, without getting into too much detail I will tell
you that there were some mysteries attached to that evidence as
well.
So it is critical that the Federal Government give the
States some guidance as to the appropriate way to preserve the
evidence. And my understanding is that is something that can
occur through this grant process.
Thank you.
[The prepared statement of Ms. Goodrow follows:]
Prepared Statement of Karen A. Goodrow
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
ATTACHMENTS
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Scott. Thank you. And Mr. Marone.
TESTIMONY OF PETER M. MARONE, DIRECTOR, VIRGINIA DEPARTMENT OF
FORENSIC SCIENCE, RICHMOND, VA
Mr. Marone. Thank you, Mr. Chairman, Ranking Member
Gohmert, Chairman Conyers, Members of the Committee. Thank you
for inviting me to speak. I am Peter Marone, the Director of
the Virginia Department of Forensic Science.
One of the issues I want to address, and there is two, is
obviously the reauthorization of the Bloodsworth Post-
Conviction Program. And it is a long story, but it gets to the
point, so bear with me.
On September 30th, 2004, after the existence of cuttings
that were retained in our case files were discovered, Governor
Warner directed the Virginia Department of--then Division, now
Department of Forensic Science to review 10 percent of the
cases from 1973 to 1988. These are the time periods when we had
an examiner who had a habit, she liked to use them for
demonstrative purposes during court, literally took the
analysis ends when she was doing absorption solution testing
for ABO, she literally took the cuttings that were left,
normally people threw them away, and scotch taped them to her
case file. Now we don't do that because of biohazards and
everything else, but she was doing that then. There was nothing
to prohibit it then.
At any rate, she took those biological samples but no DNA
analysis was done on them or had been previously conducted on
them. And the Governor said, I want you to look for those
samples, take a 10 percent sampling. At the time we thought it
was 600 boxes of case cells because there was no automated LIM
system to keep track of them, roughly a little over 100,000
files. We had to look through them one by one to see whether it
was a firearms case, a drug case, and so forth, and first to
see if there was biological evidence there. And he said okay.
Biological evidence, a named suspect, find out if that suspect
has been convicted. And we started off with sexual assault. So
those were the original primary criteria that we had.
The purpose of that review was to locate these data and
find out whether or not we could come up with any results of
it. The original review resulted in 31 cases that we sent on
for testing. Again, it was a pilot project. We hand picked
those cases to make sure we had cases where there was obviously
a significant amount of material left over. Among the original
31 cases tested, a suspect was found not to be the contributor
of the foreign DNA source in six cases. Of those six cases,
four of the listed suspects were found to have been properly
convicted. This was something that we didn't do. The
prosecutors and so forth followed up on it. Cases, for example,
where the prosecutor said yes, looking at the whole case, we
don't expect to find him there. He was the individual holding
her down while the other individuals were doing the act. So,
you know, properly convicted.
At each one of those steps when we had to look first to see
if the individual was convicted, and we went to the
prosecutors, the State police, the individual police
departments, and the clerk's offices to find out that
conviction data, I can't tell you the cooperation we got. I
can't express the cooperation we got from all levels of law
enforcement and judiciary. I mean, a lot of people think that
people are hesitant to drag up the skeletons and such. We
didn't find that to be the case. Everybody was falling all over
themselves to help with this project.
Of the two individuals who were found to actually be
eliminated, we call them eliminated, the judicial system does
the exoneration process. One of these two individual cases
originated in Alexandria, resulted in the identification of
another individual who has since been convicted. Given the
results of that 10 percent review, DFS recommended and the
Governor concurred that a complete search of the remaining 90
percent of such case files would be subjected to DNA testing.
What we originally thought was 160,000 case files from that 10
percent sampling, we realized that this individual had worked
cases from other laboratories in our system, and we looked at
600 boxes of files, 534,000 case files, all checked page by
page by hand.
To make a long story short, we identified about 3,000 cases
with biological evidence. Twenty-two hundred of those cases had
a named suspect, and 800 cases were identified where we had
evidence, a named suspect, and that person had been convicted
of that crime.
Currently, we have issued about 144 reports on those. It is
a long process just to identify them and now we are in the
reporting out phase.
But I give that as an example. We had a starting point. We
knew which cases were involved because we knew which cases had
biological evidence. We had a case number, we had a
jurisdiction. The problem that we are dealing with nationwide
is if you don't have anecdotal information, somebody remembers
the case, or the Innocence Project has taken it on as a
research project, or the defendant specifically requests it,
people don't have a place to start. They have no way of
identifying these cases. And that is the problem.
Certainly, that symposium, the post-conviction symposium
went into a training program to bring these issues up and to
enlighten folks, and that has helped a lot, but it is not the
end of it.
The issue of evidence handling certainly is an important
issue, and it has actually acted, as we can see, as a punitive
measure to getting these funds. I would hesitate to say we need
to do that same thing for the other methods of funding. What I
would suggest is, say, if you are going to do that, we are
going to place these restrictions on it and but we going to do
it in a couple of years so get ready for it so you can prepare
for it and not make it punitive. In other words, you will shut
everything down if you do it that way. We need to be realistic
about how we impose these criteria.
Another issue I would like to address is the selection of
the types of cases for eligibility for post-conviction testing.
Right now the current categories are murder, nonnegligent
manslaughter, and forcible rape. When you look at it, different
States put these crimes into different categories and it is a
crime reporting aspect of it and it is not necessarily the true
aspect of the case. What I would recommend is broaden that
terminology to be violent cases against a person. And it is a
uniform reporting, but what it does is where this particular
category of murder, nonnegligent manslaughter, and forcible
rape excludes some sexual assaults that aren't counted in here.
But the violent crimes against person would be included. If we
are going to do it, let's do it right and make it a little bit
broader.
Mr. Chairman, I cannot express enough how truly dedicated
laboratory staffs are, prosecutors, police departments, nobody
wants the wrong person in jail. Nobody wants the person
wrongfully incarcerated. We have seen nothing other than just
positive, positive response from the law enforcement community.
Thank you for your consideration, and I am open to any
questions people have.
[The prepared statement of Mr. Marone follows:]
Prepared Statement of Peter M. Marone
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Scott. Thank you.
Mr. Bright.
TESTIMONY OF STEPHEN B. BRIGHT, PRESIDENT AND SENIOR COUNSEL,
SOUTHERN CENTER FOR HUMAN RIGHTS, ATLANTA, GA
Mr. Bright. Mr. Chairman, thank you very much. Mr.
Chairman, Judge Gohmert, Chairman Conyers, Members of the
Committee, it is an honor, as always, to be before this
Committee. And Mr. Chairman, I want to take up with what you
addressed in the last part of your statement.
Many people think that DNA testing is the silver bullet
that is going to protect us from ever convicting an innocent
person. But of course only about 20 percent of the cases have
biological evidence in them that is going to provide material
for testing. And to get to what you mentioned, Mr. Chairman,
what is going to be required is competent legal representation.
And as you pointed out, every State has prosecutors offices,
every State has organized prosecutors offices by judicial
district. And my, in a nutshell, testimony to this Committee is
that in many jurisdictions we don't have a system of indigent
defense. There is no program there at all. It is an absolute
nonsystem. And the result of that is that innocent people, the
most basic protection against convicting innocent people is
competent legal representation and a working adversary system.
And yet, we have in places in this country no system at all,
individual, sole lawyers appointed to cases who may not even
defend--specialized in criminal cases.
The Supreme Court will take up next month a death penalty
case in which the penalty phase was handed by a person 5 months
into practice. Now, the Constitution says you can't execute
mentally retarded people. But you can execute mentally retarded
people if the jury doesn't know the person was mentally
retarded. And the jury didn't know it in that case because the
lawyers didn't go right there to the schoolhouse, right there
in the town and talk to the teachers who would have said he was
educatably mentally retarded. His IQ was 66. They didn't talk
to any of the people who would have documented that.
We know from the New Yorker article that came out just
recently that a man was convicted and executed in Texas because
the lawyers representing him had no idea how to defend an arson
case. The lawyers on post-conviction who represented him had no
idea how to defend an arson case. They didn't know when that
witness testified that the glass had this pattern on it and
that showed there had been an accelerant that actually the
reason the pattern was on there was because the glass was hot
and when the water hit it when they were putting out the fire
it made the pattern.
There was another person convicted of an almost identical
arson, a fellow named Ernest Ray Willis, who was represented by
a good law firm that had the resources to actually have the
forensic experts and the fire consultants look at the evidence
and put on the testimony to show what happened, and he is free.
And as we see so often, Members of the Committee, if you switch
the lawyers, you switch the outcomes in the two cases. One man
gets executed. One man goes free.
I filed a brief earlier this month on behalf of a man that
3\1/2\ years he has been waiting for a trial on a death penalty
case. For over 2 years there was no money to fund his case,
absolutely no money. Another person, Stacey Sims in Georgia,
gets appointed in 2005 a lawyer in his death penalty case. A
year and half later the lawyer says we haven't been paid. So
the judge let's them withdraw and appoints two more lawyers.
Last December they said we haven't been paid. So he allows them
to withdraw. Three years now. The man has been facing the death
penalty for 3 years. And so far there hasn't been one penny
spent for even his defense lawyers to go to the jail and
counsel him, to interview him.
Now, what kind of adversary system is this when one side,
the prosecution is fully funded, has its lawyers, has its law
enforcement officials, has all the people necessary, and on the
other side we don't have any funding for even the most basic,
just so the client can talk to his lawyer about the situation
that he is in. We have one district of five counties in Georgia
that went for a whole year without providing lawyers to people
in conflict cases. It was like the 1950's, like Gideon v.
Wainwright had never been decided, felony cases in which people
didn't have lawyers. And the judges there, three judges who had
taken an oath to uphold the Constitution of the United States,
processing people through the courts who don't have lawyers.
In Alabama, as I pointed out in my statement, we had one
lawyer file a brief that all it was was the dissent, Justice
Ginsburg's dissent in the Baze case about lethal injection. It
had absolutely nothing to do with the case before the Court. No
issue in the case. It wouldn't have helped the client anyway.
Lethal injection has been decided. Another client whose lawyer
just abandoned them mid case.
We have the Texas cases where lawyers have filed briefs
from previous years where they have talked about previous cases
in the brief that had absolutely nothing to do with the case
before the Court. They have mentioned witnesses who were from a
case 7\1/2\ years old in their brief, and I must say I can't
for the life of me understand why any court would accept a
brief like that in a case.
As you mentioned, Mr. Chairman, six people have missed the
statute of limitations. Three more have also missed it and are
waiting to be executed in Texas, three of those represented by
the same lawyer, who should have been disbarred after the first
time.
What I am saying, just to--I see my time has run--it is
going to take a lot more than training. It is going to take an
acknowledgment of how great the failure is in this area and the
need to build programs in the places where we don't have them
and to say that we cannot continue to tolerate lawyers who
continually miss the statute of limitations. And to provide
both requirements but also to come up with some funding
mechanism to recognize the fact that the Federal grants that
have been going to the State prosecutors and law enforcement
over the last years is one reason why the system is so out of
balance and that something has to be done if we are going to
say we have an adversarial system.
If we want to switch to an inquisitional system, then that
is a whole 'nother question. But if we say we are going to have
an adversary system, if we are going to keep the slogan Equal
Justice Under Law over the Supreme Court building, then we
really need to deal with this with a great deal of urgency.
Because what we have in our courts right now is an absolute
disgrace to our legal profession and to our country, and it is
a violation of our Constitution. It is happening on an ongoing
basis, and there is an urgent need for the Congress and the
Justice Department and the States and the bar associations to
do something about it.
Thank you.
[The prepared statement of Mr. Bright follows:]
Prepared Statement of Stephen B. Bright
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Scott. Thank you. I thank all of our witnesses for your
testimony, and now we will begin with panelists asking
questions.
First, Ms. Overmann, I think I mentioned 11.8. I added my
numbers up again. I think it was 9.8. And is that all of the
money available this year has been allocated, as I understand
it?
Ms. Overmann. Yes. We have--all of the accumulated funds
starting in 2006 have now gone out. So we have spent all of the
funds that were appropriated.
Mr. Scott. Mr. Scheck, you have indicated that we will need
to run these cases through the DNA databank if the profile has
already been done. What is the cost of running it through the
databank after the profile has already been done?
Mr. Scheck. I would have to consult with the FBI for the
exact costs, but I think it is virtually nothing. I mean, it is
literally--if it is a CODIS-eligible profile, that is, by a
laboratory that has met the standards of the CODIS system, it
is literally an issue of somebody in a State or local
laboratory putting that into the system and seeing if it hits
another offender.
Mr. Scott. The cost is doing the profiling to begin with.
Mr. Scheck. That is right. It costs nothing, I guess you
could say.
Mr. Scott. Ms. Goodrow, you indicated it took a long time
to get these tests. Why did it take so long? And if you had
enough money, how soon could those tests have been run for Mr.
Ireland and the others?
Ms. Goodrow. Part of the issue with Mr. Ireland's case was
that it came to us approximately 2 years prior. So his case
came to us prior to us--about 8 or 9 months prior to us getting
the State funding. When we applied in 2006, I think at least in
theory, had we had those funds, we could have worked on the
case full time. I was not able to work full time on the
Connecticut Innocence Project cases until we got our funding in
the summer of 2007. I had a real job, if you will, a full-time
position with the State as a public defender. So this Innocence
Project work we were doing, Mr. Carlow and I, part time as we
could. That was part of the issue.
Mr. Scott. So there are a lot of cases languishing for just
lack of staffing?
Ms. Goodrow. There were. Presently, I would echo the
comments of Attorney Bright, most of our cases that we are
looking at are actually not DNA-determinative cases. I would
say that the percentage--we have an ongoing approximately 80 to
100 cases that we are regularly looking at. They are at some
phase of the review process. And the large majority of those, I
would venture to say more than 90 percent, are nonDNA-
determinative cases.
Mr. Scott. Mr. Marone, when you went back and looked at all
of those cases, I didn't get a good sense of what the
percentage of wrongful convictions was, those where you had--
you just went and found that there was evidence, and you went
to test to see if the right person had been convicted.
Mr. Marone. Right. If you are going to look at the
statistics--and I don't know that it would be a valid jump to
make--if we have 800 cases, we are looking at two or three. You
know, when we are finished, there may be a few more. But I
don't know that that puts the appropriate handle on it. On the
other hand, you know, if you have got one, to me that is too
many.
Mr. Scott. What would be the cost to preserve evidence, as
this technician had done, to just preserve evidence in cases so
10, 20 years from now, at least while the person is
incarcerated, the evidence is there? How much would that cost
your system?
Mr. Marone. Unfortunately--and I am not trying to evade
your answer. Unfortunately, the way she preserved it would not
be the way we would preserve it properly. What we are looking
at is you would probably have a long-term space paperwork
issue. Right now, Virginia has that retention, but the
retention of a particular case is only done after the
litigation is finished. And all the defendant really has to do
is request that it be stored. If they don't request it, we
don't store it. But on capital cases it is automatically
stored.
And, right now, quite honestly, for us the cost is so low
we are just absorbing it. I would think, you know, you are
looking at minimal cost. That cost is going to increase,
depending upon the volume that you have. But it is a few
hundred dollars per case. And, again, as the number goes, then
you have to start looking at increased storage and so forth.
But it wouldn't be that much. It is more of a logistical issue
than a cost issue.
Mr. Scott. Then why shouldn't we, as Mr. Scheck has
suggested, condition grants on fixing the preservation of
evidence?
Mr. Marone. I don't have a problem with doing that. But
like what happened with the post-conviction testing, you put in
place a requirement that nobody knows is coming, and you don't
have time to prepare for it. Therefore, nobody is eligible for
it. So I am saying, if you want to do that, that is fine, but
let people know you are going to have to prepare for this. And
if you expect to get the funding, you should be prepared to do
it in the future. It is like you are trying to do things
retroactively, and that is just not right.
Mr. Scheck. Mr. Marone and I are in complete agreement on
this. The proposal we are making about conditioning, I guess it
is 305, 308, and 302, if I have the numbers correct. On the 413
evidence preservation requirement, it should be essentially
grandfathered in after there is a national working group that
can help set up these definitions. Because I think we are in
agreement you don't want to have it so strict that people feel
I have to preserve everything.
And, on the other hand, we have to have intelligent
preservation systems. I mean, in the Virginia case what is
amazing is that, as you know, this analyst, Mary Jane Burton--
--
Mr. Marone. Mary Jane Burton.
Mr. Scheck [continuing]. She was just stapling these things
on the written serology reports. And we were trying to get
Marvin Anderson out of jail; and Paul Ferrara, Mr. Marone's
predecessor, was saying, well, I can't find it. I can't find
it. And he said, oh, I am going to go back and look. And he
looked at the actual written reports, and then we found all
this stuff.
Now, if we had Laboratory Improvement Management Systems,
LIMS systems, like they have, for example, in North Carolina--
they have done a great job in Charlotte, literally bar coding
the evidence as it comes in--you would be able to keep track of
the evidence in old cases, cold cases. We could tie the
evidence to the actual court cases. Because, you know, what
often happens is we have to go back and try to find the cases.
Let's say we had a bad analyst who was doing a bad job and
we have to do an audit of their cases. We can't tie the lab
cases often to the court cases around the country.
So much can be done now if we give an incentive to the
States with Federal assistance to really professionalize--and
Mr. Marone can be one of the people to tell you exactly how to
do it--the laboratory systems. It is really good for every
party in law enforcement and the overall improvement of the
system. It is really, in some ways, what the President is doing
with laboratory medical records. You know, why not discovery in
the criminal justice system? Why not forensic lab data? Why
shouldn't all of this essentially be coded, electronic, and
easily available? We can do that in this society.
Mr. Scott. Thank you.
Judge Gohmert.
Mr. Gohmert. Thank you again, Chairman.
Well, just following up on that, Mr. Scheck, you and Mr.
Marone suggest that there ought to be a couple years anyway to
give States a chance if we are going to add the requirements.
And in your testimony it was 303, 305, 308, 303 being DNA
training and education for law enforcement, correctional
personnel, and court officers; 305, DNA research and
development; 308, DNA identification of missing persons. Do you
see a problem if we gave a couple of years to allow States to
be prepared to move into those requirements?
Mr. Scheck. No, not at all. And I think the way that could
be done is if you just reauthorize the Justice for All Act the
way it was originally passed, with 413 as the condition
precedent to the funding of these other pots of money, so to
speak. And you can either do that directly, you know, in the
bill, put the moratorium in, or there could really be--Justice
Department could help with that just the way they did before in
the appropriation language. Because I think everybody agrees on
what that process ought to be and how it could work.
And I want to point out, just because it is Texas, I mean,
everybody looks at Dallas, because in Dallas we have more DNA
exonerations than any State except for New York and Illinois.
Just one city. And it is not because the criminal justice
system is worse in Dallas. It is because we can find the
evidence in Dallas. That is it. And if we were able to find the
evidence in other jurisdictions, you know, in the future, this
technology improves. So it is really important to do this in a
professional and intelligent way.
Mr. Gohmert. Mr. Bright had mentioned that about 20 percent
of the cases have biological evidence that could be tested for
DNA, as I understood you to quote the statistics. Is that
right, Mr. Bright? Isn't that what you quoted?
Mr. Bright. That was my estimate.
Mr. Scheck. Actually, I think it is 10 percent.
Mr. Gohmert. You think it is closer to 10?
Mr. Scheck. Yeah.
Mr. Gohmert. Is that because of the fact there just isn't
the biological evidence to be found, or would it be more than
that if there were additional training for the law enforcement?
Mr. Marone. No, sir. It is actually 10 percent of all the
case work that laboratories get is DNA.
Mr. Gohmert. Oh, I see.
Mr. Marone. Ten percent of them are applicable to DNA. And
that one particular case might have DNA, it might have latent
fingerprint, it might be firearms, whatever.
I would like to take the opportunity, while I have the
mike, to clarify a little bit what Mr. Scheck saying. I am not
necessarily totally agreeing with a panel to come up with--
although I think evidence retention is a good idea, I am saying
if you choose to tie it to the other ones, which I can see that
going bad----
Mr. Gohmert. I understand. You are not advocating that. You
are saying, if we are going to do that, at least give us----
Mr. Marone. And the other problem with that is the evidence
is retained at localities. There is going to be a significant--
at the State level, there is going to be a significant issue
with communication as to who is going to store it. Is it going
to be stored at the State level or the locality level or so
forth.
But, for example, I can see if it goes through, for my
purposes, and it ends up with all the evidence at every stage
is going to have to be retained by my laboratory, now we are
talking about significant numbers. Now we are talking about
logistical issues and costs.
Mr. Scheck. And that shouldn't happen. In other words, as
we go across the country and try to enforce this evidence
preservation requirement with the States, we completely
believe----
Mr. Gohmert. We might need to spend some of that money on
microphones.
Mr. Scheck [continuing]. We completely believe that what
you want with the localities, with the States, because each
State has completely different systems----
Mr. Gohmert. And I know there has been a number of
references to lawyers who miss filing deadlines, and that is
abominable. When that happens, some lawyer has not met his
requirements.
But I also have to say I have heard attorneys talk about if
you really believe the death penalty is wrong and you don't
have anything else, then why not set up, you know, the blame on
yourself and pull it down on yourself in order to give your guy
a chance to blame you for bad lawyering. And that gives him
another shot. I have heard that discussed.
And I have to state that I have even brought up the issue
in court at the bench to attorneys. If you are trying to set up
some kind of record for ineffective assistance, then you are
headed for trouble yourself. You do the best you can or you are
not going to be on this case anymore.
So I have gotten that impression. I have heard people talk
about it. And sometimes I wonder. I know most lawyers, they are
just going to do the best job they can. But sometimes there are
those who feel so strongly against the death penalty that they
are willing to commit some type of alleged malpractice just to
give their client a chance to raise that on appeal.
Mr. Bright. You know that is interesting, Judge. I have
been litigating capital cases since 1979, about 30 years. I
have never once encountered that. So that is very interesting.
Mr. Gohmert. I wouldn't expect that you ever would.
Mr. Bright. Well, I have litigated a lot of ineffective
assistance of counsel cases, and I have litigated them against
a lot of really bad lawyers. And most of the cases, what I have
found is lawyers who have failed to do investigations and who
have not known what was going on. I have actually cross-
examined lawyers who have not been able to name a single
Supreme Court case, for example. But all those lawyers have
claimed that they made tactical decisions or strategic
decisions, and what their goal was was to defeat the claim of
ineffective assistance, even though those assertions were
preposterous, because it was clear that they weren't in a
position to make a strategic decision because they hadn't done
any investigation on which to make a strategic decision on.
And certainly missing the statute of limitations, that
kills your client. Those people in Texas that have been
executed where they missed the statute of limitations, if those
lawyers did that on purpose, I don't know what their point was.
In my view, the first time that happened, those lawyers--that
lawyer should have been disbarred. And the fact that he----
Mr. Gohmert. You and I are in complete agreement.
Mr. Bright. The fact that he would be assigned a second
case and then a third case and that he is still practicing law
right now and has, you know, a huge caseload----
Mr. Gohmert. You are right. I agree with you. One should
have done it.
Mr. Bright. It is just hard to imagine what judge or how
the bar association there would tolerate that.
Mr. Gohmert. Well, I sat in on some--I presided over some
disbarment cases, and I was surprised at the deals that got
cut, because I took a much harder line on those things than
apparently the bar did, those cases that were brought before
me. But, anyway, thank you.
Mr. Scott. The gentleman from Michigan, the Chairman of the
full Committee, Mr. Conyers.
Mr. Conyers. Thank you, Chairman Scott and Judge. We
appreciate this hearing and its significance.
I would like to ask unanimous consent that Mr. Ricky
Ireland be permitted to respond to a question or two or to say
something.
Mr. Scott. Without objection.
Mr. Conyers. Hello, Mr. Ireland.
Mr. Ireland. How are you?
Mr. Conyers. Pretty good. This is a pretty important
hearing, isn't it?
Mr. Ireland. Yes, it is a very important hearing. I agree.
Mr. Conyers. A lot of people being affected by this, aren't
they?
Mr. Ireland. There are. There are a lot of people being
affected. A lot of people that are still inside that need a
chance to be proven innocent.
Mr. Conyers. What would you tell a concerned congressional
Committee that they ought to do to change what you know about
all the people that have suffered miscarriages of justice?
Mr. Ireland. I believe the funding and the support of the
Innocence Project is of the utmost importance. I spent 21 years
inside; and prison is a horrible, horrible place. Nobody wants
to be there. And there are people in there that are innocent.
And 21 years between the ages of 18 to 40 is what I spent in
there.
Are there any more vital years than them years? I don't
have a family. I don't have any means for support. I don't have
nest egg socked away, no job skills. You know, that was all
taken from me.
And so when the Innocence Project contacted me and took my
case, it was like a ray of hope for me. And it was like the
first ray of hope, you know, in my entire time in. And so I
know there is other people in there. Statistically, there has
to be other people in there that are innocent. And the fact
that had there been funding earlier for the Connecticut
Innocence Project then I would have been out earlier, a
significant time earlier, you know, it kind of hurts me.
Mr. Conyers. Well, we thank you for coming out.
Do you have a job?
Mr. Ireland. Yes, I am employed now.
Mr. Conyers. Great.
Mr. Ireland. Thank you.
Mr. Conyers. I wish you the very best----
Mr. Ireland. I appreciate it.
Mr. Conyers [continuing]. In the future. And I hope that
you keep working with some of us in the Congress, in the
practice of law, in public service, and just citizens in
general that all feel very much the same way you do about what
is happening to so many other people in America.
Mr. Ireland. Thank you. I fully support the Innocence
Project, and I am here to champion their cause. And in any
way--any Innocence Project in any State, any way that they can
use me or utilize me, I am willing to help.
Mr. Conyers. That is great. I will be calling you.
I want to thank all these witnesses, too, Chairman Scott,
but I wanted to ask Ms. Overmann a question. You did some kind
of work like this as a lawyer yourself in Florida.
Ms. Overmann. I was a public defender for 5 years.
Mr. Conyers. Pretty lousy system there, too, isn't it?
Ms. Overmann. We certainly suffered from excessive
caseloads.
Mr. Conyers. And maybe that is why you got in this job, as
a matter of fact. That probably stood out in your resume.
Now all the funds are spent. So that means that hundreds of
thousands of people are going to be disenfranchised.
Ms. Overmann. In some States. I believe it is down to eight
States that automatically disenfranchise people with felony
convictions. But I believe Florida is one of those that
continues that practice.
Mr. Conyers. Well, I meant the funds that are being used to
help remedy the situation that brings us here. If the funds are
all spent, there is no more to go around. Most States are
mostly in the red anyway.
Ms. Overmann. Well, I do believe that we have requested
additional funding in the President's budget to continue
providing funding under the Bloodsworth program.
And I also wanted to highlight one of our new cases that we
have provided $3 million for, which is specifically geared
toward Innocence Projects. It addresses several of the issues
that were raised here today by Mr. Bright and also by Mr.
Ireland.
This funding is specifically provided to Innocence Projects
not based on DNA testing but recognizing that a significant
portion of post-conviction cases are cases that don't involve
DNA testing, and those cases require extraordinary amounts of
time and effort by defenders to reinvestigate. And our goal of
the initiative was to provide quality representation to the
wrongfully convicted to help alleviate some of the burdens
placed on criminal justice systems from these post-conviction
litigation efforts and hopefully to help identify, when
possible, the actual perpetrator. So we have tried to work as
closely as we can with the field to find out their needs and
address them where we can.
Mr. Conyers. Well, that is very sentimental.
May I have unanimous consent for some more time?
Mr. Scott. The gentleman is recognized, without objection,
for two additional minutes. Is there objection? Two additional
minutes.
Mr. Cohen. Three minutes.
Mr. Conyers. See, here is the problem. Eric Holder, an
experienced lawyer, Judge, now Attorney General, there are some
that say that this is going to be his biggest challenge, his
biggest test as Attorney General. Is he going to let this
unchecked system that judges, lawyers, Congressmen, citizens--
are we just going to say, well, Congress wouldn't give us any
more money, so that is--what can we do? This is the way the
system works. When they want more money for wars or military,
nobody has any problem getting that. So you have a huge
responsibility, because this is going to be on Eric Holder, not
on you. Do you put out any reports throughout the year about
where we are on this thing that you do?
Ms. Overmann. Well, we certainly internally, for our grant
management, get progress reports from our grantees.
Mr. Conyers. No, we want public reports.
Ms. Overmann. I don't know if we actually specifically
address the Innocence Protection Act. I don't believe that that
was part of the legislation, but I can certainly check and get
back to you on that.
Mr. Conyers. Well, we want to get some reports. We want to
make up some reports so that we can figure out where we are on
this. We may not see you again for the rest of the year.
Ms. Overmann. I am always happy to come back when invited.
And I do want to stress the Attorney General has made it very
clear to all of us in the Department, and he has announced
this----
Mr. Conyers. He hasn't made it clear to the Congress. He
hasn't made it clear to me.
Ms. Overmann [continuing]. Is a priority for this
department.
Mr. Conyers. He hasn't made it clear to this Committee.
Ms. Overmann. We have worked with what we could in this
first year of the Administration to provide funding.
Mr. Conyers. I know. I gave you all the brownie points in
the Rayburn Building. But that doesn't get it. Sentiments. We
are all as sentimental as we can be. Now, I just want you to
understand that this is not just a little afternoon hearing.
Now, Pete Marone, Mr. Marone, I just calculated this, I was
practicing law when you were graduating from school.
Mr. Marone. That is a long time, sir.
Mr. Conyers. Here is the problem. You said that nobody
wants anybody in that shouldn't be in. What are those numbers
about police? You said that, didn't you?
Mr. Marone. Yes, sir.
Mr. Conyers. How did you know that? What led you to that
conclusion?
Mr. Marone. Well, it is my personal experience, and the
folks that we have been involved with, whether they be
prosecutors or law enforcement, when we have asked them to
cooperate on these issues, nobody has said no. They have done
whatever they can do to help us expedite the matter. Now, under
that context, that is what I am saying. That has been my
experience, that nobody has said, no, we are not going to help.
Mr. Conyers. That is just you have met a lot of nice people
that makes you think that nobody would want this miscarriage of
justice to go on.
Mr. Marone. In my experience, sir, I found nobody to be
uncooperative.
Mr. Conyers. Well, you haven't talked to--how many of the
837,000 law enforcement officers have you talked to about this
problem?
Mr. Marone. I can only say I have talked to those people
who have been involved in these cases.
Mr. Conyers. Okay. How many judges have you talked to about
this problem?
Mr. Marone. A few dozen in Virginia.
Mr. Conyers. How many lawyers have you talked to about this
problem?
Mr. Marone. Several hundred.
Mr. Conyers. And everybody feels real bad about this. But
she has run out of money. This is the first hearing I can ever
remember being held in the Judiciary Committee, and you know
how long I have been here, so somebody doesn't give a damn, or
there are some somebodies that all feel it is too bad, you
know. I don't believe that nobody wants these people to all be
set free. And you do.
Mr. Marone. Again, in my experience----
Mr. Conyers. Yeah.
Mr. Marone. I will give you an example.
Mr. Conyers. Okay.
Mr. Marone. There has been at least two instances I
specifically know where prosecutors, once they determined that
that individual was improperly convicted, didn't wait for the
process to send it back to the defense counsel. They literally
went to the judge and started the process going on their own. I
don't see that as somebody being just sentimental.
Mr. Conyers. Let me ask you this. Have you ever heard of
police that framed people and sent them to jail?
Mr. Marone. I have heard, yes, sir; and I am not arguing
that point.
Mr. Conyers. Oh, Okay.
Mr. Marone. What I am saying is, in my experience----
Mr. Conyers. Let me ask you this. Have you ever heard of
prosecutors that knew they had the wrong people and they
prosecuted? Ireland, have you?
Mr. Ireland. I know of many cases.
Mr. Conyers. Have you?
Mr. Marone. I have heard of them.
Again, I couched my response----
Mr. Conyers. I know what you couched your response in. All
I am saying to you, my friend, is that I have files of cases of
police misconduct, prosecutorial misconduct, judicial
misconduct, and it wasn't accidental.
So, you know, this let's all get together and say this is a
terrible thing and it is too bad we don't have any money and we
are in hard times, I just--you know how long I have been here.
I have heard all the gasps and the tears and the sympathy and
all that, but it still goes on. And, right now, we are only
dealing with a small part of it.
Now, what lawyer here doesn't know that the first job a
lawyer gets, if he is trying to get started in practice, is you
are assigned a criminal case for a hundred bucks, maybe 50. I
forgot how--but they know you don't know any criminal law
because you just passed the bar. And they want you to plead
guilty anyway. They don't even expect you to do a trial. Your
job is to talk the defendant into taking a plea. As a matter of
fact, if you don't, you might not get any more assignments.
Right, Judge?
Mr. Gohmert. Not in my court.
Mr. Conyers. No, not in your court, no. But I mean they
don't want somebody coming in and playing Clarence Darrow, do
they, Attorney Bright? A trial by jury, are you out of your
mind, attorney of 6 months?
So, Mr. Chairman and Judge Gohmert, I think we ought to
meet with the Attorney General on this subject. And we can
determine how we can do that without the presence of all these
fine witnesses. And I am sure glad that they are all here and
that you held this hearing.
Mr. Scott. Thank you. I have just a couple other questions.
Ms. Overmann, did I understand you to say that eight States
disenfranchise people upon conviction of a felony?
Ms. Overmann. I am speaking out of school, but I know that
there are still States when you are talking about voting
disenfranchisement and eligibility for certain State
contracting licenses. But this is not, obviously, the topic of
the hearing.
Mr. Scott. Okay. Because I think there may be eight or so
that do it permanently, but almost all of them there is
certainly disenfranchisement upon conviction.
There is a suggestion that we kind of reinstate the
condition, the 413 conditions, evidence preservation as a
condition of other grants, and we kind of phase it in. Will you
be able to work with Mr. Scheck and Mr. Marone and Mr. Bright
and Ms. Goodrow to make a recommendation as to what we should
do legislatively?
Ms. Overmann. Certainly. We always look forward to working
with our partners in the field, and I believe that our OJP
works very closely with Mr. Scheck very frequently. And I
believe Ms. Goodrow also learned today that she is going to be
one of our new grantees. So we will be working with her in that
capacity. I know Mr. Bright has either met with or will be
meeting with the Attorney General shortly. So we are very
actively engaged in listening to the field to get their input.
And, of course, we are always happy to work with Congress.
Mr. Scott. Okay. And, Mr. Bright, you indicated that, for
purposes of nonpayment, people would drop out of several cases,
it sounded like, sequentially----
Mr. Bright. Yes.
Mr. Scott [continuing]. After a certain length of time.
Have you permanently denied a person the right to a fair trial
if their lawyer is coming in so late that the evidence is no
longer available?
Mr. Bright. Well, that is the appeal that I have raised.
Because I think that if you deny somebody a lawyer during the
critical time pretrial, you deny them the ability to prepare,
the ability to investigate and all that until the trail is
cold.
As I said, what kind of adversary system is this? One side
is fully geared up, ready to go, has full-time people, and the
other side is completely held back. And then all of a sudden
you say, well, here is some money; come try the case in a
couple of months. I think that is a violation of any notion of
due process, fairness, or an adversary system.
And that is the appeal that I just filed. And I have asked
the Justice Department to file an amicus brief just on the
question of the denial of the right to counsel. I think the
denial of the right to counsel pretrial for over 2 years, it is
unprecedented in my experience that somebody would be denied in
a death penalty case. You might not have much of a counsel, but
usually you at least have some sort of token representation
prior to trial.
This is no representation at all. This is none whatsoever.
And it is happening. It is basically the pattern in Georgia,
because there is not any money there. So it is sort of a shell
game that is played in which money is not available.
If I were these lawyers in the Sims case, I wouldn't have
moved to withdraw. I would have moved to dismiss the case.
Because I think the Utah Supreme Court pointed out here
recently that the State should either provide the money to
defend the case or it should dismiss the death penalty. If they
want the death penalty, then pony up the money to defend the
case. Because that is part of the constitutional requirement,
is that there has got to be the defense. But, unfortunately,
some jurisdictions want to do it on the cheap. And,
unfortunately, the judiciary, unfortunately, doesn't always
stand up and say, if we are going to do this, we are going to
do it as the Constitution requires, with a lawyer and with the
expert witnesses and the investigation that is required in
order to have a fair trial.
Mr. Scott. Thank you.
And, finally, Mr. Scheck, of the people that come to you
claiming evidence for which there is DNA available evidence,
what portion are found to be, in fact, innocent?
Mr. Scheck. That is the incredible part. That is the most
astonishing statistic at all.
Mr. Scott. Can you bring your mike a little closer to you?
Mr. Scheck. Yeah.
Mr. Scott. Okay.
Mr. Scheck. That is the most remarkable part of all, that
by the time we go through the cases and see if there is
evidence that we can test--you know, many people claim
innocence, but we can't find the evidence. It is lost or
destroyed. You know, the numbers change over time. In the last
few years, we found half of them the DNA results are favorable.
I mean, it changes, but it has been running between 40 and 60
percent. So that is----
Mr. Scott. Of people that claim to be innocent, if there is
evidence that can be checked, 40 to 60 percent are found to be
actually innocent?
Mr. Scheck. Yeah, between that--in that time period. The
results turn out in their favor. And it usually results in
either the real perpetrator being found or the case being
dismissed.
I would like to address, if I may, just for a minute, you
know, we have done all this work proving people innocent with
DNA testing. The Innocence Protection Act was passed in part
because everybody realized the importance of this technology.
But it is, as we have all told you, only 10 percent of the
cases. And what about those other 90 percent of the cases? That
is what we have really learned from DNA evidence.
And I have to say that I have worked with Mr. Marone and
his predecessor, I find lots of prosecutors and law enforcement
officials who are really interested in getting to the bottom of
it. But I must say over the last 17 years I have met quite a
number, Pete, that have resisted this, irrationally, and people
who have covered it up. And there have been lots of cases where
there have been, you know, documented instances of criminal and
ethical misconduct. That happens, as well as horrible, horrible
lawyering.
Now, I have seen the Attorney General's statements lately.
He has given his talk to the Vera Institute, to the National
Legal Aid and Defender Association; and this Attorney General
has said some really remarkable and important things about
actually dealing with the issue of indigent defense. It is in
crisis.
And the problem with the Justice for All Act, you know, it
was all passed, and it focuses on DNA, and it is kind of 50-50,
and we are working with law enforcement to get to the bottom of
this, but that is not addressing the problem that Chairman
Conyers has raised and I know you all understand very, very
well. And there has to be an initiative. The Administration is
indicating that it is going to do it, and we all look forward
to it. But there is something significant and large that they
have to do, and there is a very appropriate and meaningful
Federal role for really doing something about the indigent
defense system in this country, which is in crisis.
And it is not an issue of balancing, well, we give some
money to the prosecutors and we will give some money to the
defense. That just isn't the reality of our system. One side of
this has been underfunded for far too long, which is not to say
that the prosecutors or law enforcement are getting, you know,
all the money that they need or deserve, but one part of this
system is in absolute crisis. And if you deal with that, so
many of these issues that caused the passage of the Innocence
Protection Act and all of these issues we have with forensic
science could have been avoided.
I mean, if we had had competent defense lawyers in Texas,
we wouldn't have had that problem in the Houston Police
Department Crime Lab. If we had had them in West Virginia,
where this Fred Zain and all this dry-labbing and these tests
that weren't even done, a lot of these things would have been
exposed, whether it is Arnold Melnikoff in Montana or Joyce
Gilchrist in Oklahoma or even Dr. Erdmann, the forensic
pathologist in Texas. The funding of an adequate defense is
good for the entire system. It is not just protecting the
innocent or the accused. It helps the entire system. And that
is the one underfunded area that is in crisis.
And so I am hopeful that we will be coming back here in a
few months asking or testifying on behalf of a very, very
significant initiative by this Administration to do something
about indigent defense. And we hope you will reauthorize the
Justice for All Act and take some of these suggestions. But we
are really looking forward to the next hearing, where we do
something big.
Mr. Scott. Thank you.
The gentleman from Texas.
Mr. Gohmert. Thank you.
Just following along there--and by the way, Mr. Scheck, I
see you put the microphone back, and you have witnesses here.
If anybody ever accuses you of being a microphone hog, that we
have to constantly ask you to pull the microphone and speak
into it.
But I sure hope that the majority, the vast majority of the
people in law enforcement, judiciary, prosecutors have wanted
to get the right guy. I know there are exceptions to that. I
have tried law enforcement in my court, because nobody should
be above the law, especially law enforcement. But, hopefully,
your experience has been that the vast majority do want to get
the right guy. Is that fair?
Mr. Scheck. Well, I think that people have those good
intentions, but sometimes, certainly in the early days when we
started the Innocence Project, when we would get involved in
these cases and you walk in the door and say we want to do a
DNA test on a case which could disclose that somebody was
wrongly convicted, unfortunately, there was a lot of
resistance. Because people make mistakes. Exculpatory evidence
is hidden. There has been misconduct on the part of people who
tried the case or other law enforcement, or there, frankly, has
been misconduct or ineffective assistance on the part of the
defense lawyers.
I can't begin to tell you the number of times that I have
called defense lawyers and said, guess what? Remember that
person you represented 15, 20 years ago? That guy is innocent.
And they go, you got to be kidding. You know, and they never
even believed for a second what their own client told them
about being innocent or did a diligent investigation or did
anything to find the evidence of innocence.
So it is a broken system. And it is not that people sit
there thinking, gee, I am going to go out and frame somebody
tomorrow. It is that when lots of people aren't doing their
jobs it breaks down at every stage.
I have no doubt if there were a competent defense attorney
in many of these cases that said, oh, I see a mistake by the
law enforcement guy here, or something that was missed in the
crime lab, and they went to a prosecutor and said, here is the
error--you know, I see this all the time--prosecutor will say,
wow, that is a problem. Or the judge will correct it. But the
if the defense lawyer's not doing that job, you know, the whole
thing can result in a miscarriage of justice. And then it gets
real hard to uncover that without people getting defensive
and----
Mr. Gohmert. I understand that. But I guess I was
fortunate--but, normally, if a defense attorney came in, we had
the prosecutors, and I can think of a number of cases where I
said, wow, you are right, must not be the guy. We got to change
course here. I mean, that was my experience. The vast majority
wanted justice done. But, as a society, we certainly ought to
go after those who don't want to see justice done and make sure
they get justice.
Mr. Scheck. What concerns me are the number of cases where
the defense attorney was so bad--and, frankly, this happened a
lot, happens a lot in Texas, right, because not enough money
has been put toward indigent defense.
The Fair Defense Act in Texas is a recent bill that was
passed in the legislature. What about all the cases where
nobody came forward with the evidence that proved that it was a
bad case? You never heard about it as a judge. The prosecutors
never heard about it. Because the defense lawyer just never did
the job. And we see that too much.
Mr. Gohmert. I come back to the Chairman, my friend,
Chairman Conyers mentioned 837,000 law enforcement. I haven't
talked to 837,000 law enforcement, but if I felt like the vast
majority of those law enforcement officers or even a
significant part of them didn't care about getting the right
guy, I would throw up my hands and move. But I just feel like
most--my experience is most of the people involved in the
justice system still have that still voice that says you don't
go after somebody who is innocent. And so I think we all want
to get to the same conclusion, where we have a justice system
that is just.
I just know how hard some of the law enforcement work. You
know how hard. They are really trying to get the right guy. I
didn't want them to be painted with a broad bush that is unfair
and demeaned the life they have committed to being moral and
ethical and trying to do the right thing.
And in those cases where there is just laziness or one
problem or another, or lack of funding, then we need to address
that so that we continue to move toward a higher and better
justice system.
So we appreciate your time. Thank you very much.
Mr. Scott. Thank you, and I would like to thank our
witnesses for your testimony today.
Members may have additional written questions, which we
will forward to you, and ask that you answer as promptly as you
can so the answers may be part of the record. The hearing
record will remain open for 1 week for the submission of
additional materials.
And I would like, without objection, to have written
testimony from the Justice Project entered into the record. Any
objection?
Without objection, so ordered.
[The information referred to follows:]
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Mr. Scott. Without objection, the Subcommittee stands
adjourned. Thank you very much.
[Whereupon, at 4:18 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
H.R. 5107, the ``Justice for All Act of 2004''
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