[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

                               ----------                              

                           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FOR 
                               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

                               ----------
                         U.S. GOVERNMENT PRINTING OFFICE 

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                       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

                              ----------                              

                           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

                              ----------                              


                      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

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                               __________

    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

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                              ATTACHMENTS

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                               __________

    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

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                               __________
    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

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                               __________

    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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