[Senate Hearing 111-424]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 111-424
 
  STRENGTHENING OUR CRIMINAL JUSTICE SYSTEM: EXTENDING THE INNOCENCE 
                             PROTECTION ACT

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                           NOVEMBER 10, 2009

                               __________

                          Serial No. J-111-60

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          LINDSEY GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
AL FRANKEN, Minnesota
            Bruce A. Cohen, Chief Counsel and Staff Director
                  Matt Miner, Republican Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin, prepared statement..................................    23
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................    54
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     3

                               WITNESSES

de Gruy, Andre, Director, Mississippi Office of Capital Defense 
  Counsel, Jackson, Mississippi..................................     7
Findley, Keith A., Professor of Law, University of Wisconsin Law 
  School, Madison, Wisconsin, Co-Gounder and Co-Director, 
  Wisconsin Innocence Project, and President, The Innocence 
  Netwoork.......................................................     9
Lykos, Patricia, District Attorney, Harris County, Houston, Texas     5
Matson, Barry, Deputy Director, Alabama District Attorneys 
  Association, and Chief Prosecutor, Alabama, Computer Forensics 
  Laboratories, Montgomery, Alabama..............................    11

                       SUBMISSIONS FOR THE RECORD

de Gruy, Andre, Director, Mississippi Office of Capital Defense 
  Counsel, Jackson, Mississippi, statement.......................    20
Findley, Keith A., Professor of Law, University of Wisconsin Law 
  School, Madison, Wisconsin, Co-Gounder and Co-Director, 
  Wisconsin Innocence Project, and President, The Innocence 
  Netwoork, statement and attachment.............................    25
Innocence Project, Benjamin N. Cardozo School of Law, Yeshiva 
  University, New York, New York, memorandum.....................    51
Lykos, Patricia, District Attorney, Harris County, Houston, 
  Texas, statement and attachment................................    56
Matson, Barry, Deputy Director, Alabama District Attorneys 
  Association, and Chief Prosecutor, Alabama, Computer Forensics 
  Laboratories, Montgomery, Alabama, statement...................    60
Sanchez, Luis A., MD, Chief Medical Examiner, Houston, Texas, 
  letter and attachment..........................................    69


  STRENGTHENING OUR CRIMINAL JUSTICE SYSTEM: EXTENDING THE INNOCENCE 
                             PROTECTION ACT

                              ----------                              


                       TUESDAY, NOVEMBER 10, 2009

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, Pursuant to notice, at 10:06 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy and Sessions.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. Good morning. Today, the Judiciary 
Committee is going to focus on a vital component of our 
jurisdiction, which, of course, is to ensure that our criminal 
justice system works fairly and effectively to advance justice. 
Five years ago, Congress made great strides toward that goal. 
We passed the Justice For All Act; that included the Innocence 
Protection Act. Today, we begin to build on that important 
step.
    I introduced the Innocence Protection Act in 2000 with the 
primary goal of making sure that death penalty cases are 
conducted fairly. Its passage in 2004 was a ground breaking 
moment. But, unfortunately, recent headlines make clear that 
our work is far from done in this area. The New Yorker reported 
this fall that in 2004, the unthinkable may have happened: the 
State of Texas may have executed an innocent man. While we may 
never know for sure the truth in that case, it is abundantly 
clear that our criminal justice system did not work as it must 
to fully test the strength and validity of the evidence. In 
that case, forensic evidence which may not have had any 
scientific basis at all went largely unquestioned.
    In Duchess County, New York, last month, a judge released 
Dewey Bozella after finding that evidence concealed for more 
than 30 years showed he was not guilty of the rape and murder 
for which he spent 26 years in prison. Think of that. Evidence 
that had been concealed that would have showed his innocence, 
he spends 26 years in prison. Key evidence had not been 
preserved. The worst part about that--and as a former 
prosecutor, this is the nightmare you always have. When you 
prosecute the wrong person, that means the person who committed 
the crime is still out there. And in this case, they destroyed 
evidence which would have allowed them to convict the likely 
perpetrator, a man who went on to commit another heinous 
murder. It is not enough just to--you want to make sure you get 
the guilty, and you want to make sure you do not lock up the 
wrong person. Because if you lock up the wrong person, that 
means the person who committed the crime is still out there. 
And in many, many cases, they are going to be a repeat 
offender. Mr. Bozella is here today with his wife and with the 
team of lawyers who prevailed after so many years.
    Mr. Bozella, would you stand up, please? Thank you very 
much for being here, sir.
    [Applause.]
    Chairman Leahy. Now, I spent 8 years as a prosecutor, as 
many of you know, and I have great faith in the men and women 
of law enforcement. I worked with them on a daily basis, many 
times at 2 and 3 and 4 o'clock in the morning. And I know that 
the vast majority of the time our criminal justice system works 
fairly and effectively. I also know though that the system only 
works as it should when each side is well represented by 
competent and well-trained counsel and when all the relevant 
evidence is retained and tested. Mr. Bozella's case is not 
unique; we learn regularly of defendants released after new 
evidence exonerates them. We have to do better. It is an 
outrage when an innocent person is punished. As I said before, 
the guilty person is still on the streets, and they are able to 
commit more crimes, and we are less safe.
    One of the key programs created in the Innocence Protection 
Act was the Kirk Bloodsworth Post Conviction DNA Testing Grant 
Program. Kirk Bloodsworth, whom I know very well, was a young 
man just out of the Marines when he was arrested, convicted, 
and sentenced to death for a heinous crime. The only problem 
was he was not the one who committed the crime. He was the 
first person in the United States to be exonerated from a death 
row crime through the use of DNA evidence, but he sat for years 
on death row. And then they found when they tested the DNA 
evidence that they were able to find the person who did commit 
the crime.
    This program provides grants to States for testing in cases 
like Kirk's where someone has been convicted, but where 
significant DNA evidence was not tested. The last 
administration resisted implementing the program for several 
years, but we worked hard to see the program put into place. We 
are going to be hearing from Keith Findley of the Innocence 
Network, who will talk about the good that is coming from 
Bloodsworth grants in his own State of Wisconsin, but I think a 
whole lot of other States, too.
    But the vast majority of capital cases and other serious 
felony cases do not include DNA evidence that can determine 
innocence or guilt. For those cases to be fairly considered, 
each side must have adequate, competent, well-trained counsels. 
Any prosecutor worth his or her salt will tell you that the 
most important thing is to have good counsel on the other side. 
Then you know where you are. And to that end, the Innocence 
Protection Act included the Capital Representation and 
Prosecution Improvement Grants. I look forward to hearing from 
Andre de Gruy, the Director of Mississippi's Office of Capital 
Defense Counsel. I will probably continue to mispronounce your 
name. Did I come close?
    Mr. de Gruy. You got it exactly, Senator.
    Chairman Leahy. His office received funds to train counsel 
in capital cases; otherwise, there would have been no 
resources.
    Houston District Attorney Patricia Lykos--Lykos?
    Ms. Lykos. Lykos.
    Chairman Leahy. Thank you, District Attorney. On a side 
thing, when I was on the board of the National District 
Attorneys Association, part of the time the Harris County 
prosecutor was a man named Carol Vance, and he was the 
president of the association. I was down there several times 
for meetings and fell in love with Houston and Harris County.
    But she has been a leader in encouraging post-conviction 
DNA and other forensic testing, and in advocating for effective 
defense counsel. As I said, I believe that the system works 
better for all involved when each side is represented well and 
all evidence is considered. And I know, District Attorney, you 
agree. I also look forward to hearing from Barry Matson, a 
prosecutor who has also recognized the need to seek the truth 
and who has been helpful in our efforts to reform our forensic 
system.
    The Justice For All Act included several other very 
important programs, including new protections for victims of 
crime, funding for State and local governments for DNA testing 
and other forensic disciplines, and the Debbie Smith Rape Kit 
Backlog Reduction Act. The Debbie Smith Act authorized 
significant funding to reduce the backlog of untested rape kits 
so that victims need not live in fear while these kits languish 
in storage. And I have worked hard to ensure that the Debbie 
Smith Act is fully funded. I have been working hard to get to 
the bottom of some disturbing findings that we have had of 
substantial backlogs that continue. Debbie Smith and her 
husband, Rob, are here today. Debbie, I just talked with you a 
minute ago. Where are you and Rob? I see you, right back there. 
I welcome them back to the Committee. If Debbie Smith had not 
been so heroic in coming forward with the horrible story of the 
crime committed against her, I do not think we would have moved 
that act forward, and I put her in my pantheon of heroes during 
my decades on this Committee.
    So we will rededicate ourselves to doing what we must to 
ensure that we have a criminal justice system where the 
innocent remain free, the guilty parties are punished and we 
get the right person, and all sides have the tools and 
resources they need.
    With that, I will yield to another former prosecutor, 
Senator Jeff Sessions of Alabama.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Thank you, Mr. Chairman, and I am sorry 
to have been running late. We had----
    Chairman Leahy. There is a lot of that going on.
    Senator Sessions. There is a lot happening. We had a very 
interesting Budget Committee hearing with a bipartisan group of 
Senators proposing ways to contain the surging debt that we 
have in the country, and it is something that I have been 
participating in. I thought I would be back on time.
    Mr. Chairman, I look forward to working on the 
reauthorization of the act, and I look forward to seeing how 
well we are proceeding with some of the laws that have been 
passed. I would note that it is troubling that we still 
apparently have backlogs in analysis of rape kits and other 
analysis of that kind. It is pretty stunning to me.
    I have a philosophy that I will sum up before listening to 
the panel. But our great criminal justice system should be seen 
as a whole. It should be coherent. It includes prisons, police, 
sheriffs, State and Federal investigators, and prosecutors. It 
includes judges, probation officers, and the billions of 
dollars spent on this system. As crime goes up, so do arrests. 
The Police arrest one suspect with a powder substance, another 
with fingerprints, another with ballistics, another commits a 
rape, and they have DNA. And there are not sufficient funds to 
expeditiously analyze that evidence, clear the innocent, 
convict the guilty, and move forward with the case. It is a 
bottleneck in this system that continues to exist.
    I would add parenthetically that if anybody went through 
this system and has a reasonable basis to assert that there is 
forensic evidence of any kind that would free them, we ought to 
figure out a way to get them that evidence. But, of course, 
people can conjure up anything when they are serving a long 
period of time in jail. You have to have some reasonableness on 
this. But, fundamentally, that is a minor cost to the overall 
system to ensure the integrity of the system.
    I would just say that somehow we have got to get our State 
and local people more committed to effective forensic evidence, 
and I hope that the Coverdell Act, which I supported, or the 
other piece of legislation out there, could help create 
incentives for our State and local governments to do a better 
job of this.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, and I think, you know, this is 
something that goes way beyond any question of politics, 
partisan politics.
    Senator Sessions. Right.
    Chairman Leahy. Especially those of us who have served as 
prosecutors, we want to get the guilty person. We do not want 
to convict the innocent person. Aside from what a blot that is 
on the justice system when you convict an innocent person, it 
means the guilty person is still out there and they can still 
commit the crime.
    So the first witness is Patricia Lykos, the District 
Attorney of Harris County, and I believe--am I correct on 
this?--that you are the first woman to hold that post since it 
was created more than 100 years ago.
    Ms. Lykos. Yes, sir.
    Chairman Leahy. In 1981, she was appointed to serve as 
judge of the 180th District Court where she presided over more 
than 20,000 felony criminal cases over the course of 14 years. 
She then served as 10 years as senior district judge and 
special assignments judge, and then she won her election to her 
current position. The judge began her career as a Houston 
police officer, worked her way through college and law school, 
was in private practice as a lawyer. She received her 
undergraduate degree from the University of Houston, her law 
degree from the South Texas College of Law.
    I think I could say parenthetically you are a district 
attorney who has seen every single side of the system.
    Ms. Lykos. Yes, sir.
    Chairman Leahy. Please go ahead.

STATEMENT OF PATRICIA LYKOS, DISTRICT ATTORNEY, HARRIS COUNTY, 
                         HOUSTON, TEXAS

    Ms. Lykos. Chairman Leahy, Senator Sessions, my name is Pat 
Lykos. I am the elected District Attorney of Harris County, 
Texas--the third most populous county in the United States of 
America. Our square miles are almost 1,800, and our county seat 
is the city of Houston, which is the fourth largest city in the 
United States. Thank you for this opportunity to testify in 
support of the reauthorization of the Innocence Protection Act.
    Wrongful convictions are abhorrent to Americans, and most 
especially these miscarriages of justice undermine the rule of 
law, which is the foundation of our Republic, which makes us 
the greatest country that the world has ever seen, bar none. 
Civil order requires that the people have faith, trust, and 
confidence in the system.
    I come to you with the perspective of a police officer, 
criminal defense attorney, criminal court judge, presided over 
thousands of felony cases, including capital cases, and now as 
district attorney.
    One of my first initiatives was to create a post-conviction 
review section that was separate and apart from our excellent 
appellate division. But, gentlemen, it is not enough to redress 
yesterday's wrongs. We must ensure that there is future 
justice.
    You all are former prosecutors, and you understand the 
profound duty that prosecutors have. We are the No. 1 law 
enforcement officer in our jurisdiction. It is up to us to 
ensure the rights of both the accused and the victim, and we 
must always, always disclose in discovery from the inception of 
a case to post-conviction any Brady material.
    We have to serve and protect our people. We have to prevent 
crime. We have to suppress it, and we have to reduce it. And we 
have to have initiatives to go after the really bad guys--and 
girls, if you will.
    Fundamental principles of law do not change, but systems 
must. And if we are to effectively safeguard our communities, 
we have to improve the processes consistent with due process.
    Felons go undetected and undeterred because reliable 
forensic capabilities are either scarce or unavailable to the 
criminal justice system. The focus on post-conviction 
situations should not obscure the greatest need, and that is, 
the timely and accurate gathering of relevant evidence and DNA 
testing at the inception of investigations.
    We have a Medical Examiner's Office in Harris County that 
is independent, that is staffed by scientists. It is located in 
the Texas Medical Center. I would urge this honorable Committee 
to consider, either through this act or related acts, we must 
fund crime labs.
    Whenever scientific evidence is introduced, it is sponsored 
by the office; it is in the name of the district attorney. It 
is our honor at stake, and we must be assured of the integrity.
    In the city of Houston, we have 3,800 rape kits that are in 
the property room and 1,000 that are in the laboratory right 
now. This is criminal.
    I am here shamelessly asking you to make us the prototype, 
the pilot project for what a 21st century state-of-the-art 
crime lab should be. This is a job stimulus that I think 
everybody can approve.
    In addition, sir, we need through the National District 
Attorneys Association training. As you well know, 95 percent of 
all the cases are prosecuted by local prosecutors. We must have 
the expertise to be able to introduce it. We must be able to 
train law enforcement in the gathering--preserving the scene 
and the collection of evidence and the preservation of the 
evidence and so forth. We must have that training.
    And, lastly, I could not agree with you more. I want 
capable defense attorneys on the other side. That's justice to 
have effective representation. I do not want to have to retry a 
case again because of ineffective assistance of counsel.
    Thank you so much for this opportunity. Honor in dealing 
justly with all is everything. Leaders see the right thing to 
do and they do it, and I cannot thank this Committee enough for 
your interest and your commitment to the rule of law.
    [The prepared statement of Ms. Lykos appears as a 
submission for the record.]
    Chairman Leahy. District Attorney, thank you very much.
    I am going to put into the record a statement by Senator 
Feingold, a member of this Committee. We will leave the record 
open for statements from either side.
    [The prepared statement of Senator Feingold appears as a 
submission for the record.]
    Chairman Leahy. This always happens when we have 
conflicting meetings going on, and I appreciate Senator 
Sessions leaving his to come here, and then we have a number of 
Senators who have gone down to Fort Hood along with President 
Obama. The Senate had a moment of silence earlier this morning, 
but, again, a case where both sides of the aisle share the 
horror of what happened in Texas. Those of us who have had 
members of our family in the military--in my case, a son--you 
worry when they are deployed into a combat area. You have a 
sense of their safety when they are in especially a place like 
Fort Hood, which is one of the finest military bases that we 
have, as you know, right there in Texas, one of the finest 
military bases in the country. And so we all share the shock 
and horror and the grief for the families.
    Andre de Gruy was appointed the first Director--am I 
correct on that?--the first Director of the Mississippi Office 
of Capital Defense Counsel on July 6, 2001. He served as 
assistant public defender of Hinds County, Mississippi. He is 
president of the Mississippi Public Defenders Association, 
served as staff attorney, later as Director of the Mississippi 
Capital Defense Resource Center. In 2001, he was selected by 
then-Governor Ronnie Musgrove to open the Office of Capital 
Defense Counsel, one of the first offices in the country to 
fund defense for capital crimes at the State level to relieve 
the burden normally placed on counties. A law degree from 
Mississippi College School of Law in 1990.
    Thank you for coming north and joining us. Please go ahead, 
sir.

  STATEMENT OF ANDRE DE GRUY, DIRECTOR, MISSISSIPPI OFFICE OF 
         CAPITAL DEFENSE COUNSEL, JACKSON, MISSISSIPPI

    Mr. de Gruy. They gave me one simple instruction, and I 
failed to follow it.
    [Laughter.]
    Mr. de Gruy. Thank you, Mr. Chairman, and thank you, 
Senator Sessions, primarily for giving me the opportunity to 
come here and explain to you the successes I feel we have had 
in Mississippi with the funding we received through the 
Innocence Protection Act, and I want to explain to you why, in 
my opinion, it is so important that we continue this and expand 
the Innocence Protection Act.
    My office is the only State-funded public defender agency 
of any kind at the trial level in the State of Mississippi. All 
other felony defense is provided at the county level, mostly 
through contract public defenders. We only have four full-time 
public defender offices in the State who actually have 
investigators on their staff.
    My office has handled over 100 cases in the 8-plus years we 
have been in existence. That is about a third of the cases that 
are indicted each year in the State of Mississippi on death 
penalty-eligible offenses.
    The Mississippi Public Defender Task Force recently did an 
evaluation of funding and found that prosecutors are funded at 
more than twice the level of the defense. That includes county 
and State funding.
    We created a defender training division about 2 years ago. 
They train everyone from youth court defenders through capital 
defenders. That, too, is funded at 50 percent of the prosecutor 
funding. Without the Innocence Protection Act funds, we would 
not have been able to have any training in death penalty cases.
    What we have done--and a little bit about Mississippi. We 
have executed ten people. We have had 11 cases reversed for 
inefficiency assistance of counsel. I think it is this funding 
disparity that contributes to more ineffective assistance of 
counsel than death sentences that are actually carried out. The 
system as it is set up in Mississippi risks the conviction of 
innocents and the execution of innocents.
    The finding of ineffective assistance in 11 of these cases, 
which is over 5 percent of the total death sentences imposed, 
is just the tip of the iceberg because the standard of proving 
ineffective assistance is so high, most of our lawyers that are 
found to have provided deficient performance, there is actually 
no reversal, including lawyers who are admitted to drug 
treatment immediately after the trial or who are disbarred; or 
in the case of Eddie Lee Howard, his lawyer, when he filed the 
appeal, the Mississippi Supreme Court took the extraordinary 
step of removing him and ordering the local court to appoint 
another attorney. That attorney also had no qualifications 
because we have no standards in Mississippi. Mr. Howard is 
still on death row.
    Kennedy Brewer was also represented by the same lawyer. 
Eventually, through DNA testing, it was proven that someone 
else raped the child he was convicted of raping and killing. My 
office took over, along with the Innocent Project and a local 
defender, and represented him at the second trial. We never got 
that far because in the defense investigation we found the 
actual perpetrator, turned it over to the State Attorney 
General's office. That man is now under indictment, and not 
only was Kennedy Brewer exonerated, in a related case in the 
same county a man who did not have DNA to get him out of prison 
was released from a life sentence because the State now 
believes that the actual perpetrator committed both of these 
crimes 2 years apart. That is what we can do with a properly 
funded defense office.
    What we have been able to do with the limited training 
funding we have received is to first send 18 capital defenders 
to national training programs during the first 2 years of the 
grant cycle. In the second 2 years, we have been able to have 
training in Mississippi, and not just a training program, but a 
training program that we have had the funding to bring in 
national experts and to follow the cases after the training is 
over. The best example of our success I believe is in Harrison 
County, Mississippi, on the Gulf Coast. They opened a full-time 
office in the wake of Hurricane Katrina. The lawyers in that 
office had never tried a death penalty case. They came to our 
first training session. We have continued to work with them 
over the past 3 years. They have handled four cases. They had a 
death sentence, they had a life sentence; they also had a 
directed verdict of not guilty based on the handling of DNA 
evidence that they learned at our training; and they had a 
defendant found not guilty--the death penalty was taken off the 
table because of mental retardation.
    We need this continued funding not only to train public 
defenders in how to handle these cases, to assist them as we go 
forward, but I was asked not only for the reauthorization of 
the act but actually expanding to allow us to hire some lawyers 
to help fill out the staff that we have.
    I realize I am over time. I thank you again for this 
opportunity, and I urge you to reauthorize the Innocence 
Protection Act.
    [The prepared statement of Mr. de Gruy appears as a 
submission for the record.]
    Chairman Leahy. Thank you, and we will have other 
questions, and your own experience, of course, is very 
important. Your whole statement will be placed in the record, 
so do not be concerned on the time.
    Keith Findley is a clinical professor at the University of 
Wisconsin Law School, co-founder and co-director of the 
Wisconsin Innocent Project, serves as President of the 
Innocence Network, an affiliation of 52 Innocence Projects all 
around the world. Professor Findley's areas of expertise 
include criminal defense work and appellate advocacy. From 1990 
to 1997, he worked as an assistant State public defender in 
Wisconsin, litigated hundreds of post-conviction appellate 
cases at all levels of State and Federal courts, including the 
U.S. Supreme Court. He received his undergraduate degree from 
Indiana University, his law degree from the Yale Law School.
    Professor Findley, glad to have you with us. Please go 
ahead, sir.

STATEMENT OF KEITH A. FINDLEY, PROFESSOR OF LAW, UNIVERSITY OF 
  WISCONSIN LAW SCHOOL, MADISON, WISCONSIN, CO-FOUNDER AND CO-
   DIRECTOR, WISCONSIN INNOCENCE PROJECT, AND PRESIDENT, THE 
                       INNOCENCE NETWORK

    Mr. Findley. Chairman Leahy, Senator Sessions, and other 
members of the Committee--I have violated, that same simple 
rule. I am so sorry.
    Spoken off microphone.
    I am here today as President of the Innocence Network, 
which is now an affiliation of 54 Innocence Projects, primarily 
in the United States but also with members throughout the 
world. I want to thank you very much for inviting me and giving 
me this opportunity to testify today before this Committee.
    I would like to first address the importance of 
reauthorizing the Kirk Bloodsworth Post-Conviction DNA Testing 
Assistance Program and the other DNA initiatives of the Justice 
For All Act. DNA testing is, of course, of tremendous 
importance in our system of justice. We all know how important 
DNA is in the investigation and prosecution of crimes. But I 
would like to emphasize how important DNA testing is as well in 
the post-conviction context.
    We in the Innocence Network are aware of at least 245 cases 
in this country now in which an innocent person was wrongly 
convicted of a serious crime and later exonerated by post-
conviction DNA testing.
    But I also want to emphasize that post-conviction DNA 
testing also serves an important public safety and law 
enforcement function, and that is because very often post-
conviction DNA testing as well not only exonerates an innocent 
person, but also identifies the true perpetrators of those 
serious crimes.
    In the Nation's first 241 DNA exonerations, the DNA testing 
also identified 105 true perpetrators of those crimes in many 
cases through a hit in the CODIS data base, that is, the 
national data base of convicted offenders. These were people 
who had gone on, because we had failed to convict the right 
person to begin with, had gone on to commit an additional 19 
murders, 56 rapes, and 15 other violent crimes.
    Post-conviction DNA testing is also important for another 
reason, and it is a reason that transcends these individual 
cases of injustice. That is, these post-conviction DNA cases 
provide us with a learning moment, a learning opportunity. They 
give us a case we can study to learn what it is that leads the 
system to make these mistakes. And in this regard, the lessons 
from these cases are benefiting both law enforcement and the 
wrongly accused. These cases are helping us to identify sources 
of error in the criminal justice system even in cases where we 
don't have DNA to come along and save the day, errors like 
mistaken eyewitness identification evidence to flawed forensic 
sciences to inadequate provision of defense counsel, as we have 
been hearing about here. And these lessons then lead to 
reforms, best practices that improve the reliability of the 
system and thereby assist both the prosecution and the accused.
    Against this backdrop, we see the importance of the DNA 
initiatives of the Justice For All Act. Among other things, the 
law provides funding for four separate DNA grant programs, 
including one, the Bloodsworth Program, for post-conviction DNA 
testing.
    Now, Congress wrote into all four of these programs 
financial incentives to the States to encourage them to adopt 
laws requiring preservation of biological evidence after 
conviction and laws giving convicted individuals a right to 
post-conviction DNA testing of that evidence when it might 
prove innocence.
    For reasons outlined in my written testimony, the program 
did not initially achieve its goals because, quite simply, it 
frankly was not implemented. No funding was disbursed in the 
first few years under these programs. But the program is now up 
and running. The Department of Justice has granted, indeed, 
significant awards in the past 2 fiscal years, and it needs to 
be reauthorized now so that its original goals can indeed be 
effectuated. And I am pleased to say that we in Wisconsin have 
been the recipients of one of those.
    The grants that we receive and other States are receiving 
are very exciting because they allow us to move forward in a 
much more proactive way to continue to identify cases of 
wrongful conviction and continue learning the lessons for 
improving the system.
    Our recommendations in a nutshell at this point, which are 
set forth more fully in my written testimony, include:
    First, reauthorize all four incentive grant programs 
attached to Section 413 of the JFAA, with their incentive 
provisions for preservation and access to DNA. And we also 
encourage Congress to address the problem posed by the fact 
that more than half of the States still lack adequate evidence 
preservation statutes. Without evidence preservation, post-
conviction DNA testing is of no use.
    The short-term solution that we propose for this is 
providing a one-time limited waiver to States that can make a 
showing that they are making a good-faith effort to comply with 
the preservation requirements.
    The longer-term solution that we encourage Congress to 
consider is to join us in asking the National Institute of 
Justice to convene a national technical working group on the 
proper preservation of biological evidence to provide the 
States with much needed technical assistance to help them 
figure out how to accomplish this goal of preserving biological 
evidence after conviction.
    Finally, we also recommend several minor amendments to 
those portions of the Innocence Protection Act that provide a 
right of access to post-conviction DNA testing for individuals 
convicted of Federal offenses, and those two recommendations we 
have in that regard are:
    First to establish clear authority for courts to order that 
DNA profiles be run through CODIS, the national data base of 
convicted offenders, because that kind of testing is often 
needed to complete the exoneration process and to help identify 
true perpetrators who otherwise evade capture;
    And, second, we ask that you clarify that individuals who 
confess to crimes are still entitled to seek post-conviction 
DNA testing. Many States have statutes that prohibit people who 
have confessed or pled guilty from obtaining post-conviction 
DNA testing, yet we know that nearly a quarter of the post-
conviction DNA exonerations involve people who confessed or 
pled guilty to their crimes. And, therefore, if we are truly 
interested in rooting out innocence in our system, then we need 
to make that testing available to those people as well.
    I thank you.
    [The prepared statement of Mr. Findley appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much.
    Mr. Matson is from Alabama, so, one, I am delighted--and I 
welcome you being here, Mr. Matson, but I am going to yield to 
the Senator from Alabama and let him give the introduction.
    Senator Sessions. Thank you, Mr. Chairman.
    Barry Matson is really a fabulous prosecutor with great 
experience. He is now the chief prosecutor of the Alabama 
Computer Forensic Laboratories in Hoover, Alabama, where they 
train people from all over the country in how to utilize 
evidence lawfully from a computer to identify criminal activity 
and prosecute those cases.
    Also, before this position, he was a chief felony 
prosecutor in Talladega, Alabama, where he tried a lot of 
murder cases and serious crimes, so he has a lot of in-depth 
person experience both at the academic level--he is also the 
editor of the Alabama Prosecutor; I do not know how you find 
time to do all these things--as well as leading the forensic 
laboratory.
    So, Barry, we are delighted to have you back again. You 
have testified previously on related matters, and we are 
delighted to hear your testimony today.
    Chairman Leahy. Did you mention Deputy Director of the 
Alabama District Attorneys Association?
    Senator Sessions. No. He is the Deputy Director of the 
Alabama District Attorneys Association.
    Chairman Leahy. Do you sleep at all?
    Mr. Matson. I also cut the grass and take out the trash.
    [Laughter.]
    Chairman Leahy. Trust me, even Senators do that. Go ahead, 
Mr. Matson.

 STATEMENT OF BARRY MATSON, DEPUTY DIRECTOR, ALABAMA DISTRICT 
 ATTORNEYS ASSOCIATION, AND CHIEF PROSECUTOR, ALABAMA COMPUTER 
          FORENSICS LABORATORIES, MONTGOMERY, ALABAMA

    Mr. Matson. Thank you. Chairman Leahy, Senator Sessions, it 
is an honor to be here to talk on something that is so vital to 
the preservation of justice in our country.
    I want to talk to you first, though, and tell you a story 
about Tracy and Loretta Phillips, and I would ask you--in my 
written testimony, it is detailed in greater detail. But Tracy 
and Loretta Phillips lived on Coffee Street in a community that 
I grew up in, and they were renovating a house, and they were 
planning a yard sale the following morning. They lived a life 
like most people. Tracy had a small business and Loretta kept 
the children.
    On Friday afternoon, Loretta went out to put yard sale 
signs up for the following morning. She met a guy named John 
Russell Calhoun who inquired about the yard sale and asked what 
she was selling in the yard sale, and there was a television he 
was interested in. So he came back to the house on Coffee 
Street and looked at the television, decided not to buy on 
Friday, and left.
    That night, the children were upstairs watching some 
television program, had spend-the-night company, and Loretta 
and Tracy settled in downstairs to watch a movie that they had 
rented. A child in the yard behind them called and said, 
``Loretta, there is somebody in your back yard looking in your 
house.'' Tracy went out to investigate, came back in, said, 
``Loretta, I did not see anybody out there.''
    All of a sudden, John Russell Calhoun burst into that 
house. She recognized him immediately. And Tracy fought John 
Russell Calhoun and tried to defend that family. Loretta ran 
upstairs and barricaded herself and put those children on the 
balcony. She heard the fight downstairs and later heard steps 
coming up those hardwood floor stairs that they were redoing 
and resurfacing.
    There was a knock on the door, and it was Tracy. He said, 
``Loretta, open the door, he has got a gun to my head.'' She 
opened the door and there stood Tracy, beaten and disheveled, 
with John Calhoun with a gun to his head.
    They came in. Tracy pled for the family's life. The 
children were motionless on the balcony. Calhoun did not want 
money. He did not want property. He wanted Loretta, and he told 
her to remove her clothes. Tracy begged for the family. 
Ultimately, Loretta acquiesced. She laid back on the bed. 
Calhoun forced Tracy's face between her legs, and he shot him 
in the back of the head and killed him.
    Now, this is graphic, horrible cases that happen every day. 
After Tracy fell to the floor dead, the children ran out to 
their father, and they were locked in a bedroom without a 
telephone. Loretta suffered for the next 45 minutes to an hour, 
and she was raped and sodomized.
    Ultimately, the police came. Calhoun fled the scene, was 
found days later. In that case, there is DNA semen evidence, 
there is ballistics, there is eyewitness testimony. There is 
the car that was parked outside that the police found that 
belonged to Calhoun, a sports car with a driver's license in 
it.
    I prosecuted that case that was made by law enforcement, 
and he received the same sentence he gave Tracy Phillips, which 
was death. And I hope that that sentence one day is carried 
out.
    But what we have to understand is--and I honor the work 
that the Innocence Project has done to free people that were 
wrongfully convicted, and no one should ever serve a day for a 
sentence they did not commit. But what you have to understand 
is that it is not just those 200-some-odd cases that have been 
attacked and ultimately the person who was wrongfully convicted 
was freed. It is every case every day.
    I know that in the next 10 years the case involving John 
Russell Calhoun will be assaulted, and I as a prosecutor--and I 
represent about 90 percent of the prosecutors in this country, 
which are small counties, small cities, with very small 
budgets. And I know that in the next 10 to 15 years I am going 
to be called everything in the book, that that case is going to 
be assaulted. And about 15 years from now, when I am retired, 
dead, or dying, along with everybody else in that case, there 
is going to be a request or pleadings or something to attack 
that conviction that should not be attacked. And that happens 
in every case, and we have to understand that it is not just 
those cases. It is every case in this country, because small 
jurisdictions are not--it is not really an Atticus versus 
Goliath.
    In Alabama, I think it is important to note that we have 67 
counties with 42 DAs. There are 12,000 lawyers in our States 
and just a little over 300 prosecutors. We had 200,000 reported 
crimes in 2008, and 20,000 of them were violent offenses. In 
1997, the indigent defense funds in our State was $14 million. 
The budget for the DAs in our State was $17 million. In 2007, 
the budget for indigent defense in our State was $70 million. 
Do you know what the budget was for the DAs? $44 million.
    That is a trend in most States. Funding for indigent 
defense should be there. It is open ended, and it is moving 
that way across this country. And we support that funding, but 
most of the jurisdictions in our State and across this country 
are small DA's offices with one prosecutor, two prosecutors, 
maybe a secretary, and we are now the Atticus versus Goliath in 
most jurisdictions because the funding for expert testimony for 
witnesses for the defense is open ended and is growing 
exponentially.
    In our State, the average assistant DA's salary is $40,000. 
I know up here $3 million for efficiency in Washington, D.C., 
is pretty average, but in Alabama, it is not. But $40,00 is the 
average salary. In my State, if I represent somebody as an 
indigent that is charged with capital murder, it is nothing for 
me to get a fee of $120,000 in that one case.
    So you have to understand the tables are turning, and what 
I am here asking you to do with this act--and I applaud 
Congress for recognizing the need to have an effective judicial 
system. And I am not attacking the criminal defense bar at all 
because I know, just like Chairman Leahy said, it makes me a 
better prosecutor and it makes us more effective to have a 
strong criminal defense bar. But prosecutors need training, and 
we need funding, and we need to be equipped to be able to 
represent the people out there who are suffering, for the 
Loretta Phillips of the world and for the Tracy Phillips of the 
world, who are damaged and hurt every day. And we are not.
    I know that Mr. Bright testified before this Committee on 
this act recently and talked about the disparity in prosecution 
and defense, and I know that has been mentioned here. But you 
have to understand that there are those pockets of that, but 
the trend is that prosecutors' offices are not sufficiently 
funded, and we need funding and we need training.
    I echo the sentiment of my colleague at the end of the 
table that we need funding for the DNA backlog, we need funding 
for training, and we need funding for our offices.
    I thank you very much.
    [The prepared statement of Mr. Matson appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much, and thank you again 
for being here. You have visited us before, and I appreciate 
it.
    Mr. Findley, you describe in your testimony examples from 
around the country of collaborative efforts to bring both law 
enforcement and the local Innocence Projects together to 
evaluate credible claims of innocence.
    Now, I think in Wisconsin the post-conviction DNA testing 
project has a partnership between the Wisconsin Innocence 
Project, the Wisconsin Department of Justice, the Department of 
Corrections, and the State Public Defenders. Is that correct?
    Mr. Findley. That is correct, Senator.
    Chairman Leahy. What is the significance of the Bloodsworth 
grant program to this? Does it help? Does it hinder? Tell us 
more about it.
    Mr. Findley. The Bloodsworth Post-Conviction DNA Testing 
Assistance Program is of vital importance to the work we do. 
And what is really exciting about what is happening with these 
grant proposals is that it is bringing together all 
perspectives in the criminal justice system, people coming 
together from prosecution, police, and the defense, recognizing 
that we have a shared interest.
    We heard pleas here today for more funding for the defense. 
We heard pleas for more funding for the prosecution. And the 
reality is we need both, and that is what we are recognizing 
right now through these exoneration cases, is that we all have 
an interest in identifying true perpetrators, convicting the 
truly guilty, and making sure that we do not convict the 
innocent.
    So what is happening, in particular through these 
Bloodsworth grant programs right now, is that representatives 
of all perspectives in the criminal justice system are coming 
together, and most of these grants, ours included, represent 
situations where prosecutors and defense attorneys are working 
together to try to implement this post-conviction DNA testing. 
And it is of vital importance because the resources otherwise 
simply are not there to do this post-conviction DNA testing.
    And what these programs are allowing us to do now is move 
one step beyond what we have been, which is sort of a reactive 
process, waiting for people in prison to self-identify, and 
allowing us to proactively go out and search the landscape to 
find cases where DNA testing could be of benefit.
    Chairman Leahy. Because one of the things struck by Mr. 
Matson--and I have heard this from other prosecutors--is: When 
do you reach finality? Now, the case he described would appear 
to be a fairly open-and-shut case. I had open-and-shut cases, 
and I would wonder when the appeals would finally stop. I won 
them all, but I wondered when they were going to stop.
    Does this kind of collaborative effort get us somewhere 
toward the finality that Mr. Matson properly raises as a 
problem?
    Mr. Findley. Yes, I think it does. This is why post-
conviction DNA testing is a win-win proposition. Finality is an 
important interest in our system, but finality in convicting 
the wrong person serves no one's interest.
    What the post-conviction DNA testing can do, the reason we 
say if there is DNA there that can be dispositive, that can be 
conclusive, it should be tested post-conviction, is because it 
is either going to do one of two things, most likely: Either it 
is going to prove that the individual is, in fact, guilty, in 
which case we have indeed enhanced finality. The case now 
finally comes to rest without further questions. Or it will 
prove that the person is wrongly convicted, in which case no 
one has interest in the finality of that judgment.
    Chairman Leahy. Well, Ms. Lykos, let me take it from the 
district attorney's point of view. Do you have a similar 
collaborative approach in Harris County? You have to press 
the----
    Ms. Lykos. I did not realize that failure to follow a 
simple rule was contagious.
    Chairman Leahy. If you knew the number of times I forget, 
you would not feel badly about it. Go ahead.
    Ms. Lykos. We are working collaboratively, sir, and, in 
fact, we have initiated ourselves testing of biological 
information. But it is so vital that from the inception of an 
investigation that we do have the access to the crime labs. You 
cannot have law enforcement boots on the ground competing for 
the same dollars as a crime lab. And I cannot beseech you 
enough. We can create a new paradigm for what a crime lab 
should be, and there is really no comparison between the 
defense bar and the prosecution because of our multiple 
responsibilities. And just one simple thing, you know, our 
mandate to always disclose Brady material. The defense, of 
course, does not have that with respect to inculpatory 
evidence. But, in addition, there are hired lawyers 
representing them, and our role is just not merely prosecuting 
vigorously those who are guilty. And I do not want to be 
repetitious as to the myriad of other responsibilities we have.
    Chairman Leahy. You know, I am intrigued by what you have 
done in the lab. I am trying to think whether I can actually 
get down there to see it or we could send some of the key staff 
from here down to see it. You would make sure if we did that 
that we got in there to see everything?
    Ms. Lykos. Mr. Chairman, the planets are aligned in Harris 
County.
    [Laughter.]
    Ms. Lykos. I mean, Republicans, Democrats, this is not a 
political issue.
    Chairman Leahy. This strikes me, and, you know, we struggle 
with how do you--and you struggle with this all the time, and 
everybody--Senator Sessions and I have been prosecutors--
struggled with it. You want to convict the guilty. You do not 
want to make a mistake on getting an innocent person in there, 
as we have seen the horrible results when it happens. And you 
want to get finality--all the things that I think every one of 
us can agree on. It is how we reach it.
    I looked at what Mr. de Gruy said. We had a case when 
Mississippi had executed ten people, the State saw 11 
convictions or sentences reversed because of ineffective 
assistance of counsel. I remember when Gideon v. Wainwright 
came down. The book ``Gideon's Trumpet'' was one of the things 
that really inspired me when I was going to law school. But are 
you saying that we do not always have that right to competent 
counsel that Gideon promised?
    Mr. de Gruy. Actually, 30 years before Gideon in Powell v. 
Alabama, the Supreme Court recognized the right to competent 
counsel in death penalty cases. We are approaching 80 years, 
and I can say that we are coming really close in Mississippi in 
probably 50 percent of the cases. We cannot wait another 80 
years to get it done.
    Chairman Leahy. I have gone over my time, and I apologize 
to Senator Sessions, and please take whatever amount of time 
you would like.
    Senator Sessions. And I do have a matter, Mr. Chairman, 
involving my State's seafood industry, and I have to slip out 
in a few moments. But I do think that our judges do take 
special interest, do they not, Mr. de Gruy, in a capital murder 
case, they take it more seriously and in general more intensely 
watch the case?
    Mr. de Gruy. Many of our judges do. In fact, the reason 
that State funding came about was because several judges took 
it so seriously that they did what Mr. Matson talked about and 
said, ``I am going to find the most experienced, the most 
qualified lawyer, and, county, you are going to pay him what it 
takes.'' And one of those cases, that gentleman is probably 
going to be executed within the next year.
    Senator Sessions. I think the fact that you have, in 
Mississippi, 11 cases overturned as a result of ineffective 
assistance of counsel indicates that the appellate courts are 
monitoring these cases closely, and, you know, it is not 
necessarily incompetence if a lawyer makes a mistake in a death 
penalty case. He just made a judgment. He thought it was going 
go one way, and it went another way, and a witness, instead of 
helping, hurt. Those kinds of things happen.
    But I do think that we are doing a better job about 
competence of counsel, and the training strikes me as a very 
valuable thing.
    Mr. Matson, what happens if there is a--well, first of all, 
would you agree, as a prosecutor who has tried these cases, 
that the DNA should be done up front when the case is tried?
    Mr. Matson. Exactly, and I think that is what you are 
seeing now. Many if not all of the exonerations by DNA are 
cases, you know, 20, 25 years ago where we were doing serology 
and blood typing comparisons. And now if there----
    Senator Sessions. That is before DNA.
    Mr. Matson. That is before DNA, before 1990 with the 
proliferation of DNA, and now we have mitochondrial DNA and 
those types of sciences. But most of those cases are from that 
time. Now, law enforcement, they collect that evidence, it is 
preserved, and it is either tested by the State or it is 
available to be tested by----
    Senator Sessions. Defense lawyers can request----
    Mr. Matson. Certainly.
    Senator Sessions. And, Ms. Lykos, with regard to that, is 
there some danger that a defense lawyer who is committed to a 
number of DNA samples tested that they might not ask for all of 
it to be tested for important reasons they think in their 
defense, that it might confirm the guilt of their defendant and 
that then on appeal another appointed lawyer might say that is 
incompetent counsel, and you have got to give a new trial or 
re-test this evidence? Are those realistic problems that can 
cause extra effort in trying to maintain these convictions?
    Ms. Lykos. I think you are spot on, Senator, but more 
importantly, in my jurisdiction if it is relevant biological 
evidence, we test it prior to trial. The sin is and what is so 
unconscionable is the capability, we do not have it there, to 
have almost 4,000 rape kits in a property room. Epithelial is 
not being tested where we could solve all sorts of property 
crimes and other offenses because we cannot get to the rape 
kits.
    Senator Sessions. Well, I agree. It is my observation that 
is what happens. The shortfalls in the forensic science funding 
is because they are such a small part of the system, they do 
not have the clout that the DAs and the sheriffs and the police 
chiefs have with the State legislatures. Do you think that 
could be a problem in reality?
    Ms. Lykos. Yes, sir, and I am looking forward to you all 
remedying that.
    Senator Sessions. From Washington.
    Ms. Lykos. Yes, sir.
    Senator Sessions. Well, we are not going to fund everything 
from Washington. The State, you know, we help it. We give it 
money. But we were just having a budget hearing down the hall. 
That is where I came from. We are spending a lot of money, I am 
telling you. The entire debt of the United States of America 
will triple in 10 years, and they have got four different plans 
to create a commission to contain spending. So we just cannot 
do everything, I would tell you.
    Mr. Matson, I will just give you a moment here to just 
briefly express the other side of the forensic situation, the 
post-conviction motions. I am sure you have been through some 
of those and seen them. Are there some abuses that we could 
eliminate as we seek to ensure that every defendant has the 
right, post-conviction, to have evidence examined that possibly 
could make a difference in their conviction?
    Mr. Matson. Yes, Senator. What you see is--and you will 
hear about a story where somebody makes a request to have some 
evidence tested, and maybe there is a opposition or maybe the 
judge does not rule or there is some delay. But what is really 
untold is that that happens in every case. So every circuit 
judge has those petitions in every case, and you are trying to 
sift through a legitimate request for someone who earnestly 
wants to have something tested versus, you know, the hundreds 
or maybe thousands of requests that are not grounded, that 
have, you know, no significant basis for having the evidence 
retested.
    Senator Sessions. Let me just interrupt. OK. So here is a 
case before the judge. Are you telling me that good defense 
lawyers have a form motion on their computer that demands 
forensic examination of everything that possibly impacts the 
case, and 30 years ago you had a confession and an eyewitness 
testimony and that was sufficient to go to trial with?
    Mr. Matson. Certainly. You have cases where you have--I had 
one that I thought about talking about where a fellow broke 
into his ex-wife's home and beat her, drug her out, and, you 
know, shot her in front of witnesses, told people he was going 
to do it, sat there and waited for the police, and his first 
words were, ``A man's got to do what a man's got to do.'' And 
then there are requests to have the gun tested for touch DNA 
now. You know, the gun is 20 years old, and it has not been in 
law enforcement. It was an exhibit at trial.
    So a lot of times, evidence that is an exhibit at trial, 
the chain of custody means the court reporters had it in their 
drawer or in a bag in a filing cabinet or in a vault in the 
courthouse for some time, not in the presence of law 
enforcement. So now you have that person on death row. By the 
way, they have gotten three trials, and three juries have said 
he should receive death. And now we are looking at having 
evidence tested again.
    Senator Sessions. Thank you.
    Chairman Leahy. Thank you very much.
    Senator Sessions. Sorry I have to leave.
    Chairman Leahy. No, no. I understand.
    I am going to put some other questions in the record, but 
picking up on what Mr. Matson said about the evidence 
retention, and, again, from my own experience, this is and can 
be a problem whether you are in a large office or a small 
office, as many prosecutors are. It is a key component of the 
Bloodsworth Grant Program, the evidence retention. To receive 
grant funding, States must not only demonstrate they provide 
access to post-conviction DNA testing, but that they preserve 
biological evidence for the duration of the incarcerated 
person's prison sentence.
    Now, more than 25 States lack statutes requiring the 
preservation of biological evidence. The Dewey Bozella case in 
New York makes clear that preservation of that is critical. The 
right to post-conviction DNA testing is meaningless if the very 
evidence to be tested is destroyed.
    Evidence retention policy is complicated. It can be 
expensive. We tried to set up a temporary solution to get the 
Bloodsworth Program going, but that does not work.
    Professor Findley, you mentioned in your testimony a 
solution might be a two-step process. Tell me about that. Tell 
me some more about that. How does that work? Because on the 
Bloodsworth bill, that had strong bipartisan support. And we 
can pass something, but we do not want to pass these bills just 
to feel good about passing them. We want to make sure they work 
once they get out there.
    Mr. Findley. Yes, and what the Innocence Network and the 
Innocence Project have suggested, there is indeed this two-
step--two alternatives, essentially. One is the short-term 
solution.
    Part of the problem, of course, is that--the incentive 
program for preservation of evidence is very important because, 
obviously, you cannot do DNA testing if the evidence has not 
been preserved. So the incentive program makes good sense. The 
problem is because, as you have identified, more than 25 States 
do not have adequate provisions. That means we are not getting 
the preservation there, and it also means that the Bloodsworth 
grant funding money and the other DNA initiative money is not 
flowing in those States.
    So what we have proposed for the short-term solution is to 
get the money flowing and to give States a chance to start 
working on these problems. The short-term solution would 
essentially be to grant the States a one-time waiver if they 
can demonstrate that they have an adequate post-conviction DNA 
testing statute and if they show that they have imposed a 
moratorium on destruction of evidence while they convene a 
State-level working group to try to develop a plan for 
permanent preservation of the evidence.
    These questions are complicated enough, though, that we 
think that really the long-term solution is the better one, and 
that is to ask the National Institute of Justice to convene a 
National Working Group to help the States understand the best 
way to preserve evidence to solve some of the technical 
problems with that. And this is something we are hearing from 
all of the States, from law enforcement in the States. They 
need guidance in this area. And so if we can implement that and 
then give States a waiver, if they are following those 
guidelines and working toward that, I think we could meet all 
of our objectives.
    Senator Leahy, if I could, could I take just a moment to 
address one of the questions Senator Sessions raised? That has 
to do with the importance of testing everything before trial. 
And, of course, it is very important to do that, and it is 
being done primarily. But I have to tell you that that does not 
mean that the need for post-conviction DNA testing is being 
diminished. We would have thought that by now we would have 
seen a curtailing of the rate of post-conviction DNA 
exonerations as we work our way through the pool of cases that 
were prosecuted back in the old days, before testing. But we 
are not seeing that. In fact, the rate is accelerating. We are 
continuing to see these cases because there still are many, 
many cases where the DNA testing, even though the technology is 
there, is not done for any number of reasons, including 
incompetence of defense counsel.
    And there is no flood of post-conviction DNA testing 
requests. California, our largest State, since it passed a 
statute requiring access to DNA testing, sees now on average 
one to two DNA testing requests per month in the entire State.
    So I just wanted to make those points clear.
    Chairman Leahy. And one thing we should point out, as 
prosecutors and defense counsel know, not every case has DNA.
    Mr. Findley. Absolutely.
    Chairman Leahy. Just like in the old days, everybody would 
say, ``Well, where are the fingerprints? '' Well, not every 
case had fingerprints. And I think sometimes we watch these 
programs on television. I call it the CSI factor. Aha, the jury 
is there waiting, ``Where is the DNA? Where is the blood match? 
Where are the fingerprints? '' Well, some cases do not have 
DNA. They do not have fingerprints. They do not have blood 
tests. You have to build your case otherwise. And we have to 
know that.
    I want to thank you all for doing this. You will get copies 
of your testimony. If there are things you wish to add to it or 
things that you wish to add related to others, please do so. 
This is not in any way a ``gotcha'' hearing. This is a hearing 
where we are just trying to figure out what is the best way to 
do this. You have taken a lot of time to come here. All four of 
you have helped a great deal, and I appreciate it.
    We will stand in recess.
    [Whereupon, at 11:10 a.m., the Committee was adjourned.]
    [Submissions for the record follow.]

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