[Senate Hearing 112-900]
[From the U.S. Government Publishing Office]
S. Hrg. 112-900
JUSTICE FOR ALL: CONVICTING THE GUILTY AND EXONERATING THE INNOCENT
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
MARCH 21, 2012
__________
Serial No. J-112-65
__________
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 CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York JON KYL, Arizona
DICK DURBIN, Illinois JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
AL FRANKEN, Minnesota MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 26
WITNESSES
Witness List..................................................... 25
Watkins, Craig, District Attorney for Dallas County, Dallas,
Texas.......................................................... 5
prepared statement........................................... 28
Haynesworth, Thomas, Richmond, Virginia.......................... 7
prepared statement........................................... 33
Marquis, Joshua, District Attorney for Clatsop County, Astoria,
Oregon......................................................... 8
prepared statement........................................... 36
QUESTIONS
Questions submitted by Senator Chuck Grassley for Joshua Marquis. 47
Questions submitted by Senator Chuck Grassley for Craig Watkins.. 49
Questions submitted by Senator Amy Klobuchar for Joshua Marquis.. 50
ANSWERS
Responses of Joshua Marquis to questions submitted by Senator
Grassley....................................................... 51
Responses of Joshua Marquis to questions submitted by Senator
Klobuchar...................................................... 56
NOTE: At the time of printing, after several attempts to obtain
responses to the written questions, the Committee had not
received any communication from Craig Watkins.................. 62
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
Testimony of Kirk Bloodsworth, Death Row Inmate Exonerated by
DNA, March 21, 2010............................................ 63
``Rightful Convictions,'' Posted by Joshua Marquis, www.cato-
unbound.org, March 7, 2012..................................... 64
Barbara Parker Hervey, Judge, Texas Court of Criminal Appeals,
March 21, 2012, statement...................................... 69
Testimony of Thomas Haynesworth, The Mid-Atlantic Innocence
Project, and The Innocence Project, March 21, 2012............. 77
Innocence Project National Criminal Justice Commission Act (S.
306) letter to Senate, September 2011.......................... 94
Letter to Senator Leahy from Mary Lou Leary, U.S. Department of
Justice, March 21, 2012........................................ 96
Letter to Senator Leahy from Stephen Saloom, Esq., Policy
Director, Innocence Project, March 27, 2012.................... 99
The National Criminal Justice Commission Act of 2011, S. 306,
fact sheet..................................................... 100
Endorsement letter from National Organizations, Businesses, and
State and Local Organizations for the National Criminal Justice
Commission Act of 2011......................................... 101
``The Innocent and the Shammed,'' by Joshua Marquis, Op-Ed
Contributor, New York Times, January 26, 2006.................. 104
Scott Shellenberger, State's Attorney for Baltimore County,
Maryland, written testimony.................................... 107
JUSTICE FOR ALL: CONVICTING THE GUILTY AND EXONERATING THE INNOCENT
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WEDNESDAY, MARCH 21, 2012
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:08 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Klobuchar, Franken, and Grassley.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. The major complexity of the discussions
between the two leaders of this Committee up here is how to
figure out how to work the controls on these new chairs they
put in here, in case you are wondering what deliberations go on
in Congress.
On a more serious matter, though, over the next two weeks
on the Judiciary Committee, we are going to focus on a vital
component of our jurisdiction: ensuring the integrity of
convictions in our criminal justice system. As a former
prosecutor, I have great faith in the men and women of law
enforcement, and I know that the vast majority of the time, our
criminal justice system works fairly and effectively. But in
those instances when the criminal justice system does not work
the way it should, the consequences are grave, and our faith in
the system is shaken.
The criminal justice system only works when all relevant
evidence is collected, is retained, and is tested, and then
when it is appropriately shared with defense counsel. For more
than a decade I have worked to ensure post-conviction DNA
testing and reexamination of evidence that has resulted in
innocent people being exonerated, but if you have an innocent
person locked up, it means that somebody who committed the
crime is out there, and we should use the same evidence to go
and get the right person.
We enacted the Innocence Protection Act as part of the
Justice For All Act. We did that during the Bush
administration. And today the Judiciary Committee is going to
focus on instances where poor evidence led to wrongful
convictions. Then, next week, the Committee will turn to
another important aspect of our criminal justice system to
examine the need to share key evidence with the defense in
order to guarantee a fair trial.
Several years ago, Congress made great strides toward
protecting the integrity of the criminal justice system by
passing the Kirk Bloodsworth Post-Conviction DNA Testing Grant
Program. I am proud to see Kirk Bloodsworth here in the
audience. But we have with us today Thomas Haynesworth. This is
a case where the wrong things were done. Mr. Haynesworth spent
27 years in prison for a series of rapes he did not commit.
With the support of the Virginia Attorney General, he was
finally exonerated after DNA testing that was funded by the
Bloodsworth program implicated someone else. He spent 27 years
in prison because of a wrongful conviction. There is no way we
can give those 27 years back to him. But at the very least, we
ought to try to work to make sure nothing like that happens to
somebody else.
I understand that today is a special day. It is the
anniversary of Mr. Haynesworth's release from prison, but it is
also your birthday, so Happy Birthday, Mr. Haynesworth. I would
hope that it feels good that you can walk in and out of this
room at your own volition. And we are honored that you have
chosen to spend your birthday with us.
Kirk Bloodsworth was a young man just out of the Marines
when he was arrested, convicted, and sentenced to death for a
heinous crime that he did not commit. My wife, Marcelle, and I
have gotten to know Kirk very well over the years. He was the
first of many people in the United States to be exonerated for
a capital crime through the use of DNA evidence, even though he
ended up on death row. The thing is, when he was finally
exonerated, somebody in the prison said, ``You know what is
interesting? There is a guy who looks just like him in a
different part of the prison.'' And it turned out, of course,
that was the person who had committed the crime. His lawyer is
now a respected judge on the court here in the District of
Columbia, Bob Morin.
We also have Craig Watkins, the district attorney in
Dallas. Mr. Watkins has been heavily involved with Texas'
Criminal Justice Integrity Unit, which is at the cutting edge
of criminal justice reform. Mr. Watkins and Judge Barbara
Hervey, a Democrat and a Republican, worked closely together on
this project, demonstrating that integrity in the system is
something which ought to unite Republicans and Democrats. The
Texas Criminal Justice Integrity Unit is tackling the need to
educate officials about issues such as working with forensic
science. And Judge Hervey has also submitted written testimony
highlighting the good work being done in Texas.
We learn regularly of defendants released after new
evidence exonerates them. Levon Brooks and Kennedy Brewer were
released in 2008 in Mississippi after serving a combined 32
years for a murder they did not commit. There are too many such
cases.
In the coming weeks, I expect the Judiciary Committee to
take up the reauthorization of the Justice for All Act, which
will include several important provisions in addition to the
Bloodsworth program. Unfortunately, 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 well-trained,
competent counsel.
It also includes new protections for victims of crime,
funding for State and local governments for DNA testing, and
reauthorization and updating of the Debbie Smith Rape Kit
Backlog Reduction Act. This authorized significant funding to
reduce the backlog of untested rape kits so that victims need
not live in fear and so we can stop hearing about cases where
somebody has been raped and is told by the police, ``Well, we
are not going to be able to check DNA in the rape kits for
several months. In the meantime, please keep your doors locked
because these people tend to come back.'' We do not want to see
that sort of situation.
I will put the rest of my statement in the record. I
apologize for my voice. We seem to have, along with all the
flowers coming up a couple weeks early in DC, the pollen that
comes with it.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
Chairman Leahy. Senator Grassley.
STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE
OF IOWA
Senator Grassley. Thank you, Mr. Chairman. It is very good
that you are holding this hearing.
The debate surrounding crime and punishment has been around
for a long time. Our Founding Fathers drafted and ratified the
Constitution and Bill of Rights 225 years ago. At the forefront
of their mind was ensuring the protection of individual liberty
from the power of government. However, our Founders did
recognize that at times there are citizens that break the
social contract of our civil society, and they need to be
punished, provided they are afforded due process. While not
strictly defining what due process was required under the
Constitution, the Constitution and years of court cases have
outlined that process, which has worked to ensure a baseline
set of standards at both the State and federal levels of
criminal prosecution.
Over time, these baseline procedures have been supplemented
by statutory law, model rules, court rules, and standards of
professional responsibility that are designed to ensure the
fair and impartial administration of criminal justice.
Unfortunately, despite the adherence to the community, laws,
regulations, rules, and procedures, there is the possibility
and fact that innocent people could be afforded all due process
yet still be convicted.
Mr. Haynesworth, here today with us, has spent 27 years in
prison for a crime that he did not commit. In December, he was
declared innocent by the Virginia Court of Appeals. His case
presents us with a personal example of why we must continue to
ask questions about the criminal justice system and not become
complacent. Cases like Mr. Haynesworth's make us realize that
no system involving humans is perfect. It is sad, it is
unfortunate, and an emotional reality that we must recognize.
However, we must also examine the issues in an informed way
that does not threaten to destabilize the entire criminal
justice system.
Chief among the issues to discuss today is the question of
how many innocent men and women may have been convicted over
the years and how do we effectively review those cases, correct
the injustices, and apply what we learn so that injustices are
not repeated. This is not a very easy task. So the question
becomes: How do we determine which cases should be reviewed?
And how do we allocate the limited resources of government to
review?
It is important to note that there is a real discrepancy in
the number of individuals in prison who are actually innocent.
For example, some argue that cases where truly innocent
individuals were exonerated are just the tip of the iceberg.
Others argue that the number of true exonerations is small
because many of the statistics on exoneration include cases
where convictions were overturned procedurally, even though the
individual was not found factually innocent.
Furthermore, they argue that the number of exonerations is
going down each year as technological advances such as DNA
testing eliminate many wrongful convictions from even occurring
because DNA testing is being routinely used to prove factual
innocence earlier in the investigative process. Getting a
better understanding of how many cases are out there will not
only inform us about whether reforms are needed but also what
types of reforms would provide the best help.
We also need to be cognizant of the fact that, in addition
to the federal criminal justice system, there are 50 different
State justice systems, each with its own constitution, laws,
rules, regulations, and procedures. This is what Justice
Jackson, who was then Attorney General Jackson, had to say in a
famous speech, ``The Federal Prosecutor'': ``Outside of Federal
law each locality has the right under our system of Government
to fix its own standards of law enforcement and of morals.''
This statement is particularly important today given the
current fiscal situation of our Federal Government.
We do not have the resources at the federal level to
provide funding to States to review every single criminal case
after each case has exhausted all appellate remedies, nor
should we interfere with the day-to-day intricacies of State
criminal justice.
As written testimony submitted by Judge Hervey points out,
the State of Texas, via the Court of Criminal Appeals,
established the Texas Criminal Justice and Integrity Unit to
review their criminal justice system and proposed reforms. As
States are already undertaking this effort on their own, our
role in Congress should be to examine the federal criminal
justice system and not to reform every State system. We should
not go down the path of attempting to correct problems in State
criminal justice systems. Instead, as a recent report on
prosecutorial misconduct in the Ted Stevens case points out, we
should expand our limited resources ensuring that the federal
criminal justice system works as it should.
That said, we have a panel of witnesses here today to
discuss these important topics, and I look forward to the very
important testimony we are going to receive. Thank you.
Chairman Leahy. Thank you.
We will begin with Mr. Watkins. Craig Watkins is the
District Attorney for Dallas County, Texas. In November of
2006, he was elected as the first African American district
attorney in Texas. He has led his office to a 99 percent
conviction rate, but just as importantly, he established the
Convictions Integrity Unit that has reviewed over 300 cases in
the past four years and led to the exoneration of 25 wrongfully
convicted prisoners. It has received national recognition for
helping to ensure the effectiveness and integrity of the
justice system.
So, District Attorney Watkins, we are delighted to have you
here. Please go ahead, sir.
STATEMENT OF CRAIG WATKINS, DISTRICT ATTORNEY FOR DALLAS
COUNTY, DALLAS, TEXAS
Mr. Watkins. Good morning, Chairman Leahy and Ranking
Member Grassley. Thank you for inviting me to testify today on
an issue of national importance, ``Justice for All: Convicting
the Guilty and Exonerating the Innocent.'' I would like to
briefly address with you three areas related to this topic.
First is the formation of the Dallas County District Attorney's
Office Conviction Integrity Unit. Second is a ``smart on
crime'' philosophy. Third is continuing our existing
improvements.
John F. Kennedy said, ``Change is the law of life and those
who look only to the past or present are certain to miss the
future.'' When I took office, I saw a need to look to the
future of law enforcement. I saw a need to improve how law
enforcement approached crime. And I saw a need to improve past
practices. A prosecutor's job is not simply to obtain
convictions but instead to see that justice is done.
In order to see that justice is done and eliminate threats
to justice, I formed the first Conviction Integrity Unit in a
prosecutor's office in the country. Dallas County is the ninth
largest county in the country. We obtained more than 60,000
convictions in 2011. We have 17 felony courts and 13
misdemeanor courts. Our State of Texas this year will execute
more offenders than any other State. Therefore, our interest in
ensuring with absolute certainty the accuracy of the judicial
system is critical to the success of our county and, in my
view, on a larger scale, to the success of our country.
The Conviction Integrity Unit's work recently came full
circle in a case that absolutely would not have been prosecuted
without the investigative efforts of the Conviction Integrity
Unit.
In 1989, a seven-year-old little girl lay peacefully asleep
in her bed. In the middle of the night, a predator crept into
her house, took her from her home, and sexually assaulted her.
The predator violated her entire family when he assaulted her.
Her mother was restless and uncertain for years. Her father
suffered deeply as well. The damage this man did was
unimaginable. Local, State, and federal law enforcement sought
out to capture a man who gained the moniker the ``North Dallas
Rapist.'' The crime committed against that child went unsolved
for years.
In the same time period, another man was charged and
ultimately convicted. The man, who was deaf, professed his
innocence from behind bars for years. His claim of innocence
led to our administration's investigation, which ultimately
exonerated him.
When the investigation started, the molester of the little
child was walking the streets believing that he had gotten away
with a horrific crime. Additionally, he continued to commit
those same types of crimes. The victim in that case believed
that the justice system had forgotten about her. Her case had
gone unsolved since 1989. For years she lived in fear that her
attacker was still free. At the same time, a man sat in prison
for a crime he did not commit. Ultimately, our Conviction
Integrity Unit pursued a life sentence for the real
perpetrator. Within a matter of minutes, the jury obliged.
Additionally, upon our recommendation, the Texas Court of
Criminal Appeals freed the wrongfully convicted man. This is an
example of what a Conviction Integrity Unit can do.
Texas has formed the first statewide Texas Criminal Justice
Integrity Unit. Einstein defined insanity as doing the same
thing over and over again and expecting a different results. In
light of the DNA exonerations, we must continue to change what
we have done and what we will do. It is nonsensical to think
that we have the intellectual capacity to convict an innocent
man, but we are not smart enough to free a wrongfully convicted
man.
As protectors of a free society, we cannot allow our zeal
to convict a person to overcome the morals and values we stand
for as a country. Too often Dallas County promised fairness but
instead delivered inequality. Our history is spotted with these
cases, which you are likely familiar with. Universally, we are
raising the necessity of accuracy in the handling of criminal
trials. At the same time, our ability to deliver that accuracy
has dramatically improved.
The causes of wrongful convictions are as numerous as the
cases reviewed. There are instances of prosecutorial
misconduct, instances of mistaken eyewitness identification,
and instances of pure incompetence by those charged with
handling the cases. Recognizing the flawed methods used to
obtain convictions in cases involving DNA exonerations begs the
question of reliability of those methods in non-DNA cases.
In the overwhelming majority of cases we review, the
claimant will not actually prove his innocence. However, the
overwhelming majority of flights that take off will land. When
a plane crashes, we investigate what happened and we learn from
it. We do not pretend that it did not happen; we do not falsely
promise that it will not happen again; but we learn from it,
and we make necessary adjustments so it won't happen again. The
same approach should be pursued within our criminal justice
system. It is human to error; however, to be humane we must
recognize those errors and apply the appropriate solutions to
prevent the same error.
Our ``smart on crime'' approach has dramatically reduced
the crime rate in Dallas County. We have worked with the Dallas
Police Department and other law enforcement agencies in the
county to achieve an all-time low in crime and an all-time high
in our conviction rate. The approach that we have used has not
diminished our ability to prosecute cases, but instead has
enhanced it. This approach has garnered credibility with all
segments and communities in Dallas, and in order for our
criminal justice system to work, we must strive for perfection
and credibility.
Texas has made reforms in the areas of eyewitness
identification, retention of biological evidence, and
documentation of statements made by defendants and/or
witnesses. These improvements have been aimed at reducing the
likelihood of wrongful convictions and strengthened the
foundation of the criminal justice system in Texas.
Likewise, the Federal Government has taken important steps
in improving our justice system by passage of the Justice for
All Act in 2004. These measures serve to lighten the financial
burden of post-conviction DNA testing and improve the
educational opportunities for the legal community. I encourage
you to continue on this course and continue to provide funding
for these critical programs.
There is universal agreement that the conviction of
innocent persons for a crime they did not commit is intolerable
in a civilized society. We are standing at the threshold of
progress as it relates to strengthening the integrity of our
criminal justice system. Let us continue to take advantage of
this opportunity of exploration and improvement.
Thank you for allowing me to comment at this time, and I
will answer any questions that you may have.
[The prepared statement of Mr. Watkins appears as a
submission for the record.]
Chairman Leahy. Thank you.
We will go to each of the witnesses first, and then we are
going to have some votes in between here, which we are trying
to juggle things so that somebody can keep the hearing going.
As I indicated earlier, 27 years ago, Thomas Haynesworth
was wrongfully convicted of attacking five women near his home
in Richmond, Virginia. He maintained his innocence for nearly
three decades. He was finally exonerated of his crimes. He was
released from prison last March at the age of 46. He now works
for the Virginia Attorney General's office. He spent the last
year, as you can imagine, reintroducing himself to his friends
and family.
Mr. Haynesworth, I appreciate your being here. Again, I
must say I am very sorry for the reason why you are here. I am
sure nobody is more sorry than you are, but, thankfully, at
least you have been cleared. Please go ahead, sir.
STATEMENT OF THOMAS HAYNESWORTH, RICHMOND, VIRGINIA
Mr. Haynesworth. Thank you for inviting me to testify on
the issue of wrongful conviction.
Exactly one year ago, March 21, 2011, the Commonwealth of
Virginia gave me the most memorable birthday present ever: I
was released from prison after serving 27 years for crimes that
I did not commit. I spent more than half my life and almost my
entire adult life in prison. But that gift came only because of
the hard work by many people in the organization, including
public officials such as the Attorney General of Virginia. I am
grateful to them for giving me this assistance.
In February 1984, when I was 18 years old, I was charged
with five rapes and sexual assaults. I had never been arrested
before. From the moment I was arrested, I told everyone that I
was innocent. But four other women also mistakenly identified
me, and DNA testing did not yet exist to help me prove my
innocence. I was convicted of three of those crimes and
sentenced to 84 years in prison. Later, the State crime lab
discovered evidence in one of my cases and proved that I was
innocent and that a convicted serial rapist had committed that
crime.
Like many others, proving my innocence and securing my
freedom was not easy. It took a lot of time and support,
including the State crime lab conducting DNA testing in two of
my cases. I took and passed two lie detector tests, learned
from three different organizations how to work on a case,
including the Mid-Atlantic Innocence Project, the Innocent
Project in New York, and Hogan Lovells, a private firm that
worked pro bono. Experts had to review the evidence. Two
prosecutors has to work on my cases. The Virginia Attorney
General and the Governor supported my case. I especially would
like to thank the law enforcement officials, in particular
Attorney General Cuccinelli, for their efforts to correct my
wrongful conviction and support my innocence.
Proving my innocence also was not cheap. DNA tests,
overtime for crime lab staff who managed this difficult
project, and the work of my lawyers took hours and cost a lot
of money. Luckily for me, both the State of Virginia and the
Mid-Atlantic Innocence Project were able to do this work
because they had received grant funding from the Federal
Government to cover the DNA testing, overtime hours, and some
of the attorney time. This funding came from the Federal
Bloodsworth program and Wrongful Conviction Review Program.
Without this support, I would still be in prison.
Congress and States should support reforms that will help
prevent wrongful conviction as well as funding for grant
programs that help exonerate the innocent.
Thank you for listening to my testimony today. I would be
happy to answer any questions.
[The prepared statement of Mr. Haynesworth appears as a
submission for the record.]
Chairman Leahy. Thank you, Mr. Haynesworth.
We will finish with Joshua Marquis. Mr. Marquis is the
district attorney of Clatsop County, Oregon, where he has
served since 1994. He has been a member of the Board of
Directors of the National District Attorneys Association since
1997. I know how much I enjoyed serving as a member of that
same board. He is also a member of the American Bar
Association's Criminal Justice Section Leadership Council. He
is a past president of the Oregon District Attorneys
Association.
District Attorney Marquis, we are glad to have you here.
Please go ahead, sir.
STATEMENT OF JOSHUA MARQUIS, DISTRICT ATTORNEY FOR CLATSOP
COUNTY, ASTORIA, OREGON
Mr. Marquis. Thank you very much. Senator Leahy, Ranking
Member Grassley, thank you for inviting me here today. I am
here on my own dime because this matter concerns me greatly.
I want to make clear this is not a partisan issue. Even
though I was invited by the minority, I want to make clear that
I have never voted for a Republican for national office in my
life and do not plan on doing so in the future. This is not a
Democrat-Republican issue.
The National District Attorneys Association, on whose board
I serve and where Chairman Leahy was the vice president, I
believe, during a couple of terms when he was district attorney
in Burlington, Vermont, probably before I was a lawyer----
Chairman Leahy. Probably before you were born.
[Laughter.]
Mr. Marquis. Maybe not quite that long ago, Senator. But we
are nonpartisan. We have worked with both Democratic and
Republican administrations.
I am not here to tell you that wrongful convictions do not
occur or that prosecutorial misconduct does not occur. I have
my job because my predecessor was arrested, indicted,
convicted, jailed, and disbarred, in that order. She framed two
completely innocent police officers because they would not fix
a reckless driving citation for her boyfriend, a federal ex-
con. And I was subsequently appointed to fill her position and
then later elected.
When I came into my office, I discovered that there were
things not nearly as spectacular or as tragic as Mr.
Haynesworth's case, but cases that just did not smell right.
One of the wonderful things about being a prosecutor, as
opposed to being a defense attorney--I have been both--is that
as a prosecutor our duty is just to the truth. It is not to the
client. And so if a case does not feel right, we have the
ability to dismiss it. And so I went back and looked at cases
and decided that some should be dismissed. In one case, I even
went and asked that a perjury case conviction be vacated
because, again, it just did not smell right. That is one of the
advantages of being a prosecutor in our system.
As I think Mr. Watkins said, it is not news when planes
land safely, as Walter Cronkite says. So Mr. Haynesworth's case
and that of Kirk Bloodsworth, who is here in the audience, are
remarkable because they are, frankly, very rare. You do not
find news stories that say, ``DNA confirms guilt of
defendant.'' It is simply not news anymore.
Mr. Haynesworth is someone who deserves our apologies, and
I was asking him--he probably deserves compensation. But as he
pointed out, quite generously, the Washington Post, in a series
of articles about his case, talked about how the Virginia
Attorney General and two Commonwealth attorneys, one a Democrat
and one a Republican, did everything they could. Frankly, if
DNA had existed in 1982 when he was first wrongfully convicted,
I do not think he would be--and he actually brought up an
interesting point. He brought up two different kinds of
science: DNA, which prosecutors brought into the courtrooms of
this country, not defense attorneys, and fought State by State
by State trying to get it to fit Daubert or Daubert-like
standards, and now it is accepted, and now we realize it
exonerates as well as inculpates. But he also mentioned lie
detector tests. Lie detector tests, on the other hand, are
almost universally rejected, frankly, as ``junk science.'' They
are not allowed in most States under any circumstances.
When I was last in this room was 12 years ago, and we were
talking about the first iteration of the Innocence Protection
Act. And, frankly, I was here opposing that. I had problems
with it. So did my organization. We worked it out, and by
2004--I think it was called the Justice for All Act--it passed,
and I think you are looking to--one of the witnesses there was
Barry Scheck from the Innocence Project, and he was talking
about a guy named Ricky McGinn. On that very day that we were
here, Ricky McGinn's picture was 12 times across the cover of
Newsweek--``Is this man innocent? ''--and implied that if he
could just get a DNA test, it would prove that he was innocent.
Now, again, I did not vote for George Bush, but he was then
the Governor. He was running for President. Most people do not
know this. The Governor of Texas does not have the ability to
grant a plenary commutation. He can just grant a single 30-day
reprieve. But he did that for Ricky McGinn, and Ricky McGinn
got that test. But you never heard about Ricky McGinn again
because Ricky McGinn was found to have, in fact, raped and
murdered Stephanie Flannery, his step-daughter. These victims
have names.
By the same token, eight years earlier, Roger Coleman,
another poster boy for innocent people on death row, post----
conviction, 14 years after his death, DNA testing was
conducted. A huge press conference was prepared. It was going
to be on ``Nightline'' live. The envelope was opened. The
Canadian laboratory had been--it turns out that one in 19
million possibility Roger Coleman had not merely raped but
murdered Wanda McCoy. But good luck trying to find that case
because it is an example of what I call ``exoneration
inflation.''
And, frankly, to mention people like Roger Coleman and
Ricky McGinn in the same breath as people like Thomas
Haynesworth and Kirk Bloodsworth does them a dishonor. These
men are genuinely exonerated. And many States have developed
programs, like Virginia and other places, to say we are not
merely going to acquit people, we are going to find ways to
declare them exonerated.
I commend Mr. Watkins on a conviction rate of 99 percent. I
have been a prosecutor for 19 years, and the best I have ever
been able to do is about 75 to 80 percent.
I have gone into much greater detail in my written
testimony, which I see I am beginning to run over my time, and
so I want to just touch on one or two more points.
One of them is I think Senator Durbin, who is not here,
deserves credit for one of the things that we need to do to
make sure that the right people are prosecuting and defending
is to provide incentive, and when we have law students, young
public defenders and prosecutors with debt loads of $100,000,
we will never be able to pay them very much money. So the John
R. Justice Act, which you have funded and it is funded through
the Department of Justice, although at only a $4 million level,
has been passed and has been passed through the leadership of
Senator Durbin, and he deserves credit for that.
If you are inclined to do other things, I would strongly
suggest avoiding something like the Webb Commission, which
seeks to do, as I understand it, a soup-to-nuts examination of
the criminal justice system across America. The problem with
that is, as Senator Grassley pointed out, you have 50 different
systems with 50 different funding sources. If you are going to
do an 18-month study, which is what the Webb Commission
suggests, do it of the federal system. Frankly, you advise and
consent the President on the appointment of the federal
prosecutors and judges, and you fund all of those agencies.
So, in closing, I would ask you to take a look; hopefully
you will have questions from my written testimony, but I
sometimes am concerned that--and, again, what Mr. Watkins has
done is admirable. It is not the first time it has been done.
For 10, 12 years, there have been programs in San Diego, St.
Louis, and Minneapolis to reach out and offer inmates in prison
the opportunity for free DNA tests. Most of them do not take it
because most of them, unlike Mr. Haynesworth, are not innocent.
If we are to believe some defense experts, we should think
that all confessions are false and coerced, eyewitness
testimony cannot be trusted, the police are going to basically
lie, prosecutors are going to misconduct themselves, and really
we cannot trust anything. I do not believe that is true. I
think there are improvements that we can make. There are
improvements that this Committee can help fund. And we owe it
to people like Mr. Haynesworth and to the many victims of
crime, who, frankly, I see more than my constituents as the
people to whom I owe my primary obligation as a prosecutor.
[The prepared statement of Mr. Marquis appears as a
submission for the record.]
Chairman Leahy. Well, Mr. Marquis, thank you. You are
obviously an active prosecutor, and I agree with you, when we
have gone at this in the Innocence Protection Act, we have not
done it with the idea that everybody who is arrested is
arrested falsely. I think we all know that. You have emphasized
very much what I always felt as a prosecutor: you also have the
power to withhold prosecution if you feel a case is not right.
Prosecutors do have a duty to protect everybody within the
system. And what I worry about is when you have somebody as you
described, like your predecessor, who distorts the system.
Incidentally, you did do some research if you found that I
had been vice president of the National District Attorneys
Association. I must tell you I was about to become elected
president, but I gave up the honor and glory of that for the
anonymity of the U.S. Senate.
[Laughter.]
Mr. Marquis. I think you did better.
Chairman Leahy. There are days.
Mr. Haynesworth, I admire your courage in even coming
forward after going through this ordeal. I think a lot of
people would have said, ``I just want to shut out the world.
The world shut me out, I want to shut out the world.'' You have
not done that, and I applaud you for that.
I think cases like yours are one of the reasons why I
fought so hard for the Bloodsworth post-conviction DNA testing.
If you had not had that DNA testing, do you think that you
would have been able to have proven your innocence.
Mr. Haynesworth. No, sir. That was one of the biggest
assets to my being released from prison, was the post-DNA
testing.
Chairman Leahy. Can you describe a bit--and Senator
Grassley and I were talking about this earlier--just how being
locked up for a crime when you know that you did not commit the
crime? How did you maintain your sanity for 27 years?
Mr. Haynesworth. The first thing that I did when I got in
there, I did not finish high school, so the first thing, I went
back to school to get my GED, and I took some trades and took
three courses of college. So I did things to help develop my
mind, and then I got familiar with the law. I started going to
the law library, studying the law. I had a cell partner. He
also was good with law, so we studied all kinds of cases, and I
just started writing numerous people and trying to get somebody
to help me, just telling me to take a chance, and if you
discover some DNA testing, I will approve it. And I showed them
I am one of those who was innocent.
So I just did positive things, you know, to occupy my mind.
I said that I wanted to be better coming out than I came in.
And in prison, you know, for 27 years, I told a lot of people,
it kind of was a blessing to me because a lot of things that I
accomplished in prison, if I had never went to prison, I do not
think I would accomplish some things. So I just kept myself
grounded by doing positive things.
Chairman Leahy. Thank you very much.
District Attorney Watkins, You work to ensure the integrity
of convictions obtained by your office. Numbers mean nothing if
there is not integrity in those numbers, in what you do, and I
think both you and Mr. Marquis would agree on that. If you are
going to bring cases, you want to know that you are bringing
cases that should be brought.
You described the work of the Conviction Integrity Unit,
and that reviewed--and correct me if I am wrong in the
numbers--300 cases, as I understand it, found 25 wrongfully
convicted individuals and set them free.
What has been the public reaction? Did this increase their
confidence in the integrity of the judicial and criminal
justice system? Or did they say, ``You guys are all wrong. Look
what you did'' ?
Mr. Watkins. Well, first of all, I think the perception----
Chairman Leahy. This is a possible double-edged sword. I am
just curious what happened.
Mr. Watkins. The perception, unfortunately, of the general
citizen is that a prosecutor should seek convictions. They do
not understand that statutorily--and I believe it is the law in
every State--it is not to seek conviction but to seek justice.
And when you would see a person walking free after 27 years--I
think the longest person that served in Dallas County was over
30 years--for a crime they did not commit, it automatically
gives credibility not only to the DA's office but to the
criminal justice system as a whole to show that we are pursuing
just as vigorously claims of innocence as we pursue
convictions.
I take issue with the fact that there are some that want to
take away from the importance of this work and the fact that,
according to the numbers that they see, at this point they are
minimal.
Unfortunately, if you limit it to DNA, obviously not every
case has DNA. But what we have seen--basically we have created
a laboratory within Dallas County. We have seen cases where we
would exonerate a person as it relates to DNA, but also we
learn what caused that person to be convicted for a crime they
did not commit. And so just specifically looking at DNA I
believe is short-sighted. There are issues that we found in
Dallas County and throughout the State of Texas which cause a
person to be wrongfully convicted. And so it opens up this
Pandora's box of cases where there is no DNA.
Chairman Leahy. But you also put in place a number of
procedures on lineups and eyewitnesses. Is that correct?
Mr. Watkins. We did. Eyewitness identification, of the
cases that we have exonerated, although DNA was available, if
you just look at the pure issues in the case, eyewitness
identifications caused 90 percent of the wrongful convictions.
Like the district attorney from Oregon said, in 1984 we did not
have DNA, but we did have eyewitness identification, which
proved to be flawed.
And so the next phase--I mean, we have done this in Dallas
County--is to look at those cases where there is no DNA, and we
have exonerated several individuals, and the Court of Criminal
Appeals has upheld those exonerations where there is no DNA,
there is no science. There was prosecutorial misconduct. There
was police misconduct.
Chairman Leahy. How do you feel about videotaping
interviews of suspects or even of witnesses?
Mr. Watkins. I think, you know, we should. We have the
technology to do it. It is very inexpensive. I have an iPhone,
and I am sure that most police officers have a phone that will
video record a confession. And so I think it is appropriate for
us at some point to legislate that that should be done, because
we even had false confessions.
I mentioned the deaf individual who was convicted for the
crime that he did not commit and spent several years in prison.
He actually confessed to the crime, and DNA proved that he did
not do it. But he confessed under duress. He spent over 24
hours under interrogation, and he is deaf. He does not hear.
There was never a point where they offered a person that knew
sign language to come in and interrogate that individual. Under
pressure, he said he committed the crime. But he did not.
I believe that this issue of wrongful convictions is more
rampant than what the numbers show. We only have DNA in a few
cases, and we can only prove it scientifically with those cases
where there is DNA. But we can look at the elements of all of
those cases outside of the DNA aspect and see that you can
apply those same issues to cases where there is no DNA.
Chairman Leahy. What I am going to do is go to vote. I am
going to turn it over to Senator Klobuchar, and if there is
nobody here when you finish, if you could just recess for a few
minutes, because I will be back. Another former prosecutor.
Senator Klobuchar. [Presiding.] Well, very good. Thank you,
Chairman Leahy. I am not only a former prosecutor, but our
county, Hennepin County, when I was there, took a lead on some
of this work, worked with the Innocence Project, and we
actually did a DNA review, as did Ramsey County, which includes
St. Paul across the river, and reviewed all of our homicide
conviction cases and with the DNA evidence and the new types of
DNA that we had. We actually did not find wrongful convictions
and did not have that problem in our own county, but I think
Ramsey County had one that they brought forward. And to this
day, I really do not understand why people, as you have pointed
out, Mr. Watkins, would not want to do this, because our job as
prosecutors is, as the title of this hearing, to convict the
guilty and protect the innocent. And we saw that as a broader
mission.
The other thing we did in Minnesota, as I think we were one
of the first States--I know this--by a Supreme Court order of
our Minnesota Supreme Court, we required that all
interrogations be videotaped. And at first, the police and
prosecutors were really concerned about this. It ended up being
a very positive thing, and they did not want to get rid of it,
to the point where our police chiefs would go and talk about it
nationally, because it actually was some protection for their
officers if there were any claims made of police brutality that
were not correct. It also was a way for prosecutors to see
firsthand a defendant being interrogated. And we actually found
it not only protected the rights of the defendant, but we also
found that it helped us in some cases.
We had one case where a guy said he was blind so he could
not have committed the crime, and then the police officer left
and the guy got a piece of paper out of his pocket and started
reading it on TV. That actually happened.
Another guy they left, and he looked down at his shoes and
said, ``[expletive deleted], I have blood on my shoes.'' Take
that off the record, that comment, but that is what he said.
And so they had not discovered it.
So these were things that would not have happened if we did
not have that requirement that was put in place to protect
defendants' rights. But I think it made it better for everyone.
We also, when I was county attorney, embarked on a new way
of doing eyewitness ID, which, especially in some of the sexual
assault cases, turned out to be the No. 1 reason false ID that
people were wrongfully convicted, and we had someone similar to
Mr. Haynesworth come up from another State and talk about what
had happened. And we ended up actually using a different kind
of ID that was researched that came out of Iowa and which,
instead of looking at all the pictures at once, we looked at
them one at a time when witnesses came in.
So we have done a number of things, and I just wondered if
you have looked into that at all, Mr. Watkins, the idea of the
sequential versus simultaneous ID and what the--I have not been
caught up for the last few years on what is happening with that
nationally, in addition to the videotape question that was
asked earlier by Senator Leahy.
Mr. Watkins. Sure. We in 2009 lobbied our State lawmakers
to put legislation in place that required a standard as it
relates to eyewitness identification, which took away the old
standard and went to the double-blind system. And it is not a
standard that is actually placed inherently on different
jurisdictions, but it is a model, and that model is being
followed by the majority of the jurisdictions in Dallas County
and throughout the State of Texas at this point.
Another issue I want to point out is a lot of folks, when
we have this conversation about wrongful convictions, you think
about defendant rights. Well, as a prosecutor, I see it
somewhat differently. I look at victims' rights. And in all of
the cases, several of the cases that we have actually
exonerated the individual, we went and found the person who
actually committed the crime. And sometimes it would be 20, 30
years later. And what we found is that the person that actually
committed the crime continued to commit those same types of
crimes after the person was wrongfully convicted.
Senator Klobuchar. Exactly.
Mr. Watkins. So we have done a disservice overall to our
society by turning a blind eye to this issue. We allow the
actual perpetrator, the actual criminal to continue to wreak
havoc on society, when if we, you know, step back, take a look,
and explore the mistakes that have been made and try to fix
them, then we can actually truly get the perpetrator off the
street, not waste our tax dollars on someone like Mr.
Haynesworth, and protect society.
Senator Klobuchar. Exactly. And I think the way you
describe that is very important for people to understand.
Anything you would like to add? I do not want to miss the
vote here, but, Mr. Marquis.
Mr. Marquis. Thank you, Senator Klobuchar. Yes, I think as
a prosecutor--and you were one so you know what I am talking
about--it is infinitely desirable to get preferably a video,
and if not that, at least an audio, statement of the defendant.
In my written testimony, I point out what the uniform standard
jury instruction is in my State, and it is not exactly
favorable. It tells the jury: You should view any statement
said to be made by the defendant with great caution. The
officer may have intentionally or deliberately--you know, blah,
blah, blah. I mean, it is--so if you have a recording of it,
that is desirable.
One of the things that--however, we have to remember that
for the No. 9 size office that Mr. Watkins runs, you ran, I
think, a couple hundred?
Senator Klobuchar. We had 400 employees.
Mr. Marquis. Okay. Those are, frankly, rarities. I run, by
American standards, a medium-sized DA's office. I have six
deputies. The average prosecutor's office in the United States
is one DA, one assistant, and six support staff. There are
thousands, literally, of elected prosecutors.
So what I do, I spend thousands of dollars every year----
well, try to--to equip these seven police agencies in my
jurisdiction. However, if we say if you do not do this, we are
going to exclude the statement, you are going to keep truthful
evidence. So what we need to do is incentivize, for example, by
having a uniform instruction that says, ``If you tape, then you
should give it extra consideration.''
Senator Klobuchar. Okay.
Mr. Marquis. The same thing, by the way, on----
Senator Klobuchar. You know what, Mr. Marquis? I am going
to a place that does not have a lot of mercy. That is the U.S.
Senate floor. And I could miss the vote if I do not get back.
So I am going to go back, and then if I am not able to return,
we will ask in writing to allow you to finish, and I know some
of my colleagues have questions as well.
I wanted to thank you all, and we are going to go into a
recess right now, and then Senator Leahy will return, and
Senator Franken. Thank you.
Mr. Marquis. Thank you.
[Recess at 10:58 a.m. to 11:13 a.m.]
Senator Grassley [Presiding]. Could I call the meeting to
order? The Chairman said that it was okay if I went ahead in
his absence, so I think it was my turn to ask questions. I
thank all the participants for their testimony and going out of
their way to help us decide public policy.
I am going to ask a question of Mr. Marquis. When an
innocent person is discovered, every possible measure ought to
be taken to release them from prison and clear their name. What
is not clear, however, is how frequently this occurs and what
should be done to reduce the chance of it happening. Mr.
Marquis, you have written that the actual percentage of
wrongful convictions is extremely low, and it seems that many
of the wrongful convictions are from old cases, mainly the
1980s and earlier, before DNA testing was widely used.
Mr. Marquis, do you agree with Mr. Watkins that there are a
lot of these cases out there? That is the first question.
Mr. Marquis. Senator Grassley, with all due respect, I
cannot speak to Dallas because I have never been there, and I
do not know what happened before he was district attorney,
elected, I think, in 2007 or 2008. But, no, if we are talking
about the universe of the United States, where I have the
privilege of traveling around and talking, giving trainings to
prosecutors on ethics.
In 2005, a man named Samuel Gross, who is a professor at
the University of Michigan, did a study about wrongful
convictions, and he did not confine it to DNA. He also took
cases where there had been confessions by other people in
prison, which is not an uncommon way, or recantations by the
victim, by the eyewitness, a series of others, and did not just
confine it to murders. It was also robberies and rapes. He came
up with about 390 cases in a 15-year period from 1989 to 2003,
and he offered the position, which was not unreasonable, that,
well, there probably are more because these just are the ones
that we know about from DNA and other matters.
So I said, okay, everything is in context. You have to look
at everything in context. So let us take his number, round it
up to 400, and then multiply it by 10. And I do not believe, by
the way, that there are 4,000 wrongful murder and rape
convictions in the United States in that 15-year period. I have
no doubt that there were wrongful convictions, and maybe 400
was an accurate number. But, again, just for the purposes of
trying to quantify this, I said let us take it and multiply it
by 10.
So then you have to say, okay, out of what universe? Well,
if you look at the Bureau of Justice Statistics numbers for
that time period, and just assuming that we are talking about
willful homicide and forcible rape, it is 1.5 million. So you
divide the 1.5 million by 4,000, and you come up with an 99.27
percent rightful conviction rate.
Now, if you are in the one-half or one-quarter of one
percent that is wrongfully convicted, that is small consolation
for you. But as I think I pointed out in my testimony, in the
United States every year pharmacists kill about 10,000 or
12,000 people--not deliberately--and medical mistakes cost over
15,000 deaths.
Now, as Mr. Watkins, I think, correctly said, what do you
do? You do not just sit back--or on the planes, I mean, the
airline I flew here on has killed 290 people since the death
penalty was reinstated in 1976. I just use that. But I get on
the plane. I had real severe turbulence coming here, and I was
worried there for a minute. But I am not worried about the
plane crashing because I am confident, as Mr. Watkins says,
that they are going to inspect that plane, they are going to
update it, and we have to do the same thing with the criminal
justice system. We have to make sure.
But to answer your--I hope I answered your question,
Senator Grassley. I think the idea to say that wrongful
convictions do not happen, obviously Mr. Haynesworth is an
example of a wrongful conviction. Mr. Bloodsworth is. But,
again, as a former journalist, their cases are rare enough;
they make headlines. That does not mean we can lower our guard,
but there are people who say three to five percent of the
people in prison are there wrongfully. I would quit my job and,
you know, go do something else if I thought it was anything
remotely like that.
Senator Grassley. I think I am satisfied that what you just
said answers this question, but if you have something to add, I
would let you add it. Do the cases of exoneration that we have
heard about call into question the integrity of the entire
criminal justice system?
Mr. Marquis. No, I think they--some of them, like Mr.
Haynesworth's--if DNA had been in effect in 1984--in 1982 I
think is when you were--1984, and had been properly used, what
would happen is what happens now. The reason that you are
seeing a drop-off in DNA exonerations is that police are using
DNA at the front end.
There is always going to be a tiny number of rogue
prosecutors who do bad things, like my predecessor, and there
are always going to be a small number of cops who are willing
to, you know, do as much as commit perjury. So I do not--the
question, again, and I have said it before, is: Is this problem
epidemic or is it episodic? And that does not diminish it. That
does not mean, oh, well, if it is only episodic, then we do not
have to really worry about it. But I think we do a tremendous
disservice to the men and women in prosecution and, as Senator
Klobuchar said, she was, you know, doing a program not exactly
the same, but similar to what Mr. Watkins was doing, I think,
10 years ago. If we imply that somehow--if we were to believe
popular culture in America, which is that, you know, any
person, any one of us in this room, could be grabbed off the
street at any time and wrongfully convicted of a crime. Does it
happen? Yes. Does it happen a lot? No.
Senator Grassley. When a convicted criminal claims
innocence and demands additional DNA testing, who should pay
for that test? If a DNA test then confirms his conviction,
should the criminal bear any responsibility or consequences for
knowingly using public resources, which are limited?
Mr. Marquis. Well, the National District Attorneys
Association, who I represent, believes that DNA testing ought
to be available to any inmate at any stage of a proceeding,
even if they have been convicted, all of their appeals have
been exhausted, and, again, many of the programs--the one in
San Diego, the one in Minnesota, the one is St. Louis--one of
the things that was striking about them is that, as Senator
Klobuchar said, they did not find any people in her
jurisdiction. Frankly, trying to get the money out of somebody
who is doing prison time, Senator Grassley, is going to be
almost impossible. I do not have any problem with the State
paying for it. I think we should make DNA universally
available, and I want to commend the State of New York that
just two weeks ago made DNA collection universal for all
arrestees. And, frankly, it ought to probably be lawyers and
law enforcement. They take our fingerprints. Why not take a
swab of our DNA?
Senator Grassley. I have had my time, Senator, but if you
are not ready, I have got one more question. But if you are
ready, go ahead.
Chairman Leahy [Presiding]. Go ahead.
Senator Grassley. Sometimes we forget the basic principle
here in Washington about separation of powers and restrict
ourselves to carrying out constitutional responsibilities
without intruding on the States. For example, most crimes are
prosecuted by State authorities, especially street-level crimes
like rape and murder, that seem to produce the greatest number
of exonerations.
A three-part question, and let me ask all three parts. What
should the Federal Government's role be in preventing wrongful
convictions at the State level? Do you favor a federal review
of State criminal justice systems like the Webb Commission? And
I know you spoke about that some in your remarks. And what
implications would result from federal interference in State
prosecutions?
Mr. Marquis. Well, in terms of wrongful convictions, I
think that, for example, if the Federal Government can help
make CODIS, the national data bank, truly national, make it
available, increase the number of categories where DNA and, for
example, not shy away from what are called ``warm'' or
``familial'' DNA hits, where, for example, you know that the
brother is not the person but is very close--there has been
some reluctance, frankly, on the part of the FBI to do that.
There should not be, if it helps us, if the ultimate goal is to
find the person who did it.
Certainly the John R. Justice Act that Senator Durbin--in
terms of having experienced and good prosecutors and defense
attorneys--is going to reduce wrongful convictions. There is
nothing worse than having someone, frankly, in a DA's office
who only thinks they are going to be there for four years to
get their name in the paper so they can run for some higher
office or, you know, get their name in the paper so they can
become a wealthy attorney. We are seeing a lot of
professionalization of prosecutors' offices. And, by the way, I
am long since being able to be the personal beneficiary of loan
forgiveness, but it means a great deal when I talk around the
country. So I think that and some of the aspects of the Justice
for All Act have been very helpful.
On the Webb Commission, as I said, to be blunt, an 18-month
review made up of people appointed entirely by the President
and the Congress, both Democrats and Republicans, no
stakeholder spots for defense lawyers, trial judges,
prosecutors, or cops, the people who are involved in what, as
you point out, are 97 to 98 percent of all criminal
prosecutions in America, and with all due respect, Congress is
not paying for those. Those programs are all being paid for by
State legislatures that in some places, like California, are
emptying prisons in enormous levels. So to do that in 18
months, I think, is unrealistic, to say the least.
And as I said, if Congress is interested in doing that,
then why not confine it to that over which you have direct
control, the federal prosecutors who you appoint, the federal
judges who you advise and consent, and the various oversight
that you have on the alphabet soup of federal agencies.
And, finally, to answer your question, the problem that
comes from that is that if, for example, let us say the Webb
Commission were to say we want to have--we are setting a
national standard that every interview must be videotaped--
which, by the way, I think would be great. As I said
previously, as a prosecutor I want them to be taped so there is
no question about what was said. Well, if there is no money
that comes along with that for the roughly, I do not know,
2,000 non-metropolitan jurisdictions, how are we going to fund
it? I mean, this sounds incredibly small potatoes, but a small
police department that has been told that they have got to
outfit every one of their cars with a video system and every
one of their interview rooms, if they do not have the money to
do it, they cannot.
So I think there is--I know that Senator Coburn, who I
think normally sits on this Committee, and Senator Kay Bailey
Hutchison spoke very strongly against the Webb Commission for
exactly that reason.
I hope that answers your question, Senator.
Senator Grassley. Thank you, Senator.
Chairman Leahy. Thank you. I would note that States are
happy to accept help from the Federal Government, whether it is
using the FBI lab or the bulletproof vest bill or a number of
other things. So asking for something in return, provided we
provide the money, should not be a bad idea.
Senator Franken.
Senator Franken. Thank you, Mr. Chairman.
Mr. Watkins, I would like to ask you about forensic medical
exams, specifically rape kits. Sexual assault is truly a
heinous crime. It is also startlingly common. The Bureau of
Justice Statistics estimates that there were about 188,000
incidents of rape or sexual assault in 2010. We have an
obligation to help these victims, and the availability of DNA
evidence gives us an opportunity to do so.
I introduced the Justice for Survivors of Sexual Assault
Act, which would help reduce the backlog of untested rape kits
and would guarantee that no woman ever suffers the indignity of
paying for her own exam. And I would like to thank Chairman
Leahy for his leadership on the Violence Against Women
Reauthorization Act, which includes some of my key provisions,
and I hope the Senate has an opportunity to vote on this bill
soon.
Mr. Watkins, drawing on your experience as a district
attorney, can you talk about the importance of DNA evidence in
prosecuting rape and sexual assault cases?
Mr. Watkins. Sure. Obviously, when we are talking about
sexual assaults and proving these cases in court, DNA is
tantamount to us having the ability to do that. In Dallas
County, we went a step further. In fact, in Dallas County--it
is the ninth largest county in the country--we only had one
hospital that had what is called a SANE nurse, a sexual assault
nurse examiner. That nurse is basically trained to take the
evidence for a rape kit and is also trained to come to court
and testify as it relates to those rape kits. And we were able
to put in place at all the hospitals within Dallas County the
ability to have this procedure done by folks that eventually
will be able to come to court and testify to them.
Not only did we do that, we actually have a storage
facility that will store that evidence in perpetuity. So if we
do not know who committed the crime, and if it so happens that
the person did commit the crime and they had been arrested and
been to prison before, we can upload that information in what
is called the CODIS system and get a match and bring that
person to prosecution.
You know, jurors are very sophisticated these days. They
watch a lot of TV, and, unfortunately, they think that, you
know, they are going to get the same evidence that they get on
TV like they see on ``CSI.'' But that is not the case. But they
want that. And so the more opportunity that we have to solidify
scientific evidence and store it and keep it and bring it to
their attention at a trial, the more opportunity we have to
convict a person for committing the crime.
Senator Franken. Thank you.
Mr. Haynesworth, we often hear about wrongful convictions
in terms of statistics. Data compiled by the Innocence Project
shows that more than 280 convicted individuals have been
exonerated through DNA testing in the past 20 years, and in
nearly half of those cases, the real suspect ultimately was
found. Those statistics are, of course, important, but we
cannot lose sight of the human toll caused by wrongful
convictions. And, Mr. Haynesworth, I want to thank you for
being here and reminding us of the human pain and suffering
that this problem causes.
A lot of people might have given up hope after so many
years behind bars. What gave you the courage to keep fighting
for your freedom?
Mr. Haynesworth. I think one of the most things was that
when I got locked up in 1984, like I stated, I told everybody I
was innocent, and I told the detective I was innocent, and the
detective who worked my case did not believe me. He said, ``No,
we got the right man. You are the one.'' And from day one, I
said I will prove my innocence, I will prove to them that they
were wrong. I did not want to walk around being portrayed as
something that I was not. You know, I was not in prison because
of my fault, but somebody else's mistake.
When I first got involved with my lawyer, Sean, I stated to
her that I was innocent. I even told her who I thought the
perpetrator was, and it came I was right who this person was.
But then my faith in God, you know, my belief growing up in
a Christian home and having faith in God that I knew and
believed that one day, you know, the truth would come out, it
just was a matter of fact that if I said they had my DNA, I
knew I could prove my innocence.
So I just had my faith in God and the belief that one day
my DNA would be discovered, and the day came I found out it had
been discovered.
So I just think, you know, all the people who were there
for me, Sean, the Innocence Project, you know, for the work
they had done, supported me and stand behind me.
Senator Franken. You wanted to clear your name.
Mr. Haynesworth. That is the best thing. You know, I wanted
to clear my name and prove to everybody that I was innocent,
because I had a lot of persons even in my family that doubted
my innocence, and I wanted to prove to them that, you know, you
have got five women who said that you raped and attacked them,
and everybody said that all five cannot be wrong. So I just
wanted to prove that and just clear my name.
Senator Franken. Thank you.
Mr. Chairman, would it be okay if I asked a couple more
questions? Thank you.
Mr. Marquis, thank you for your written testimony. I am
sorry I was not here for your oral testimony. You highlighted
the John R. Justice Loan Forgiveness Program, which I support.
I agree with you that loan forgiveness plays an important role
in recruiting and retaining quality attorneys to serve as
prosecutors and defenders.
While we agree on that, it seems that we disagree about the
Webb Commission, which you criticized. You said that the
proposed Commission has ``no dedicated positions for any
stakeholders (defense attorneys, trial judges, or
prosecutors).'' I am reading that from page 8 of your written
testimony. But the bill does require that the Commission be
comprised of ``individuals with distinguished reputations for
integrity and nonpartisanship who are nationally recognized for
expertise, knowledge, or experience in such relevant areas as
law enforcement, criminal justice, court administration,'' and
other relevant fields. That is Section 6, paragraph (b) of the
Webb Commission bill.
I guess my question is this: Would you support the Webb
Commission if it included defense attorneys, prosecutors, and
judges who meet that description?
Mr. Marquis. Well, forgive me for being too much of a
lawyer, Senator Franken, but the language that you read to me
was kind of spongy. In other words, it said people who--
distinguished fields. When I say stakeholders, I meant
literally, you know, public defenders, judges, et cetera.
I have got a couple other problems with the Webb
Commission. Part of it is just the time period. Eighteen months
is an extraordinarily short period of time. If I understand
correctly, the intention is to do a top-to-bottom review of the
American justice system, and I am assuming that means the
entire American justice system, not just the federal one. And
there is a lot of discussion about what happened back in the
1960s. There were, for example, a lot of--in response to the
civil rights movement, police brutality, which we all saw on
television, or at least I did when I was a kid, and those
commissions begat in turn the Law Enforcement Assistance
Administration, which is long a blessed memory, but it
professionalized police departments. It poured a huge amount of
money into it, but to the good.
If the Webb Commission, or something like it--I know that
is not the official name of it--were to do something like that,
were to take a long view and be prepared even in these tough
economic times to say, well, we are going to step in and make
sure that, for example, the DNA labs--you make a really good
point. For example, it is not just DNA testing. In order, for
example, for child abuse to be adequately prosecuted, what have
cropped up all around the country are Child Abuse Assessment
Centers where children are interviewed not five times but once,
usually on videotape, so there is no question about the
children having been suggested by an overzealous police
officer, et cetera. Those have made dramatic changes in terms
of how child abuse cases are prosecuted. We even have one in my
little county in Oregon. And SANE nurses are one way--I am
shocked to hear there is only one SANE nurse in Dallas. You
know, I think we have two in my county, and I am only 40,000
population.
I jumped around a little bit, but I hope I answered your
question, Senator.
Senator Franken. Well, I think you bring up very valid
points. What if the language said including the categories
defense attorneys, prosecutors, and judges, and that the time
was extended? In other words, do you think that--we have a real
crisis in this country, and it seems like we have to do
something about our criminal justice system. We have less than
five percent of the world's population, but we have nearly a
quarter of its prisoners. The cost of our correction system is
staggering. The Vera Institute estimates that my State's
taxpayers pay more than $41,000 per year per inmate. That is
not sustainable.
So I think we need reform, and, you know, to me reform
means early childhood education, it means getting at it before
it starts, and that sort of thing. But a Webb Commission or
something like it seems like a good start to me, and I think
that if you selected a bipartisan group of experts, including
maybe the categories that you mentioned, is a ``there'' there
for you?
Mr. Marquis. I think there might be, and I am sort of
putting on my hat--I am on the executive Committee of the
National District Attorneys Association, which, frankly, I
think was the only national organization to publicly oppose
the--I think the chiefs of the police and the sheriffs actually
supported the Webb Commission. I think the things that you are
talking about, Senator, would go a long way toward assuaging
some of those.
You know, Minnesota, as you probably know, I think is
either 48th or 49th in incarceration rates in the country. You
are way, way down there. My State is number 30, and our
approximate incarceration cost per inmate is about $25,000.
You know, clearly we can always do better, and----
Senator Franken. Well, I think that ``we can always do
better'' is sort of a bromide that can be applied to anything.
Mr. Marquis. Well, then, let me be----
[Laughter.]
Senator Franken. I am sorry.
Mr. Marquis. Then let me be more specific, Senator. If the
federal----
Senator Franken. I crack myself up.
[Laughter.]
Mr. Marquis. If the Federal Government was willing to
invest significant amounts of money in both public defenders
offices, if that was necessary, in DAs' offices--not federal--
if they were willing to do that as part of it, then, yes, I
think it probably--but if it is just to say we are going to
make these broad, sweeping recommendations and, oh, by the way,
have a nice day figuring out how you are going to fund all of
this----
Senator Franken. Okay. Well, I----
Chairman Leahy. Could I play devil's advocate just a little
bit? You know what it costs you to have these people locked up.
You know what recidivism costs you. And my little State of
Vermont has to struggle with this all the time. There is also a
payoff for the taxpayers if it is done better.
Senator Franken. Actually, I was going to say, ``Thank
you,'' and then go. So thank you.
Chairman Leahy. You do not want to hear what I have to say?
Senator Franken. I do, and I will have my staff----
Chairman Leahy. Read the record?
Senator Franken. Play me the entire remarks that you give.
Chairman Leahy. You know, ``We will check what you said in
the record'' fits right up there with, ``The check is in the
mail.''
[Laughter.]
Senator Franken. No. I want the video of it.
Chairman Leahy. Well, thank you.
Senator Franken. I want to get the real impact. I have got
to go to something. That is all.
Chairman Leahy. Thank you very much.
But the balance, I mean, I understand what you are saying,
Mr. Marquis. Our State is small enough that even though I have
a quarter of the State's population in my county when I was
prosecutor, it was still pretty small. And you could look at
all these things you wanted to and say, okay, great, how do we
pay for it?
But I think at some point we have got to find a balance in
here, whether it is on drug laws where taking cocaine, for
example, if you are a well-paid stockbroker on Wall Street and
you get caught with $500 worth of powder cocaine, people say,
``Oh, what a tragedy. Such a wonderful person. We will give him
20 hours' community service, and maybe he should write an essay
for high school not to do that.'' If you are kid in the ghetto
and you get crack cocaine and it costs the same amount of
money, you are going to go to prison for 20 years.
Something is wrong with that, society suffers, and I think
we all suffer on that. Now, that is a case where if it is a
federal law, we should be doing better things about changing
some of those disparities in penalties. We have taken a first
step forward. We have got to do a lot more. Prosecutors can do
a lot, of course, on discretion. But, still, what Senator
Franken said about the percentage of number of people who are
locked up in our country, something is breaking down.
Mr. Marquis. Well, Senator, a couple things. You just
pointed out, correctly, that the federal Sentencing Guidelines
that are so draconian are precisely that--they are federal. In
my State, on your 27th conviction for possession of heroin or
cocaine, the judge does not have the authority to send you to
prison, even if they want to. The maximum sentence is 30 days
in jail, and they are probably not even going to get that, even
though I have family members literally coming and saying,
``Please lock them up. We cannot afford an inpatient program,
and at least they will not be using while they are in your
jail.''
But I think when we talk about the system, we also have to
recognize that in the last 20 years in America, I mean, think
about the Presidential election in 1988 when crime was a major
issue, there was that infamous Willie Horton ad by George Bush
against Michael Dukakis, which most people considered pretty
vile and racist, and why did that all happen? Because violent
crime in this country was pretty much out of control. Murders
are down almost 50 percent in 20 years. The number of victims
is dramatically lower.
In terms of reducing the number of people who are raped and
killed in this country, we are doing much, much better. And I
would not suggest that it is at the--we are not simply
incarcerating more and more people. If I can take the Occupy
people for a moment, the one and 99 percent, it has nothing to
do with money. One percent of the population victimizes 99
percent of the population. And the question is: How do you deal
with that one percent? Most of us at the State level, Senator,
have developed drug courts and alternative programs for even
chronic drug possessors because we recognize that throwing them
in prison just does not do any good. And for the most part, in
States like Oregon, 77 percent of felons in my State do not go
to prison. They get probationary sentences.
So, yes, I think when I say we can do better, I mean both
the things that Mr. Watkins is talking about, what Senator
Klobuchar is talking about, and if a federal commission would
help grease the skids for helping pay for and recognize some of
these things that, frankly, cost dollars, all the better.
Chairman Leahy. I am just suggesting that we ought to
figure out just how we spend our dollars. I considered myself a
pretty active prosecutor. When I was there, I was the one
person the police could always find at two o'clock or three
o'clock in the morning. I went to more crime scenes than most
people will ever see in their life during that time.
But I thank you for the testimony. I think we have a long
way to go. The most important thing, though--and I think
everybody would agree with this, whether you are a prosecutor
or defense attorney--is that when you prosecute somebody, you
want to make sure you have the right person because juries can
make mistakes and juries do make mistakes. And law enforcement
can make a mistake.
One of the things, when people say, ``Oh, great, they
arrested that guy,'' they forget that if they got the wrong
guy, the person who committed the crime is still out there and
probably will do it again.
I thank you all very much. We will leave the record open
for the rest of the week for further questions.
[Whereupon, at 11:43 a.m., the Committee was adjourned.]
A P P E N D I X
Additional Material Submitted for the Record
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Prepared Statement of Chairman Patrick Leahy
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Prepared Statement of Craig Watkins, District Attorney for Dallas
County, Dallas, Texas
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Prepared Statement of Thomas Haynesworth, Richmond Virginia
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Prepared Statement of Joshua Marquis, District Attorney for Clatsop
County, Astoria, Oregon
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Questions submitted by Senator Chuck Grassley for Joshua Marquis
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Questions submitted by Senator Chuck Grassley for Craig Watkins
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Questions submitted by Senator Amy Klobuchar for Joshua Marquis
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Responses of Joshua Marquis to questions submitted by Senator Grassley
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Responses of Joshua Marquis to questions submitted by Senator Klobuchar
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NOTE: At the time of printing, after several attempts to
obtain responses to the written questions, the Committee had
not received any communication from Craig Watkins.
Miscellaneous Submissions for the Record
Testimony of Kirk Bloodsworth, Death Row Inmate Exonerated by DNA,
March 21, 2010
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``Rightful Convictions,'' posted by Joshua Marquis, www.cato-
unbound.org, March 7, 2012
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Barbara Parker Hervey, Judge, Texas Court of Criminal Appeals, March
21, 2012, statement
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Testimony of Thomas Haynesworth, the Mid-Atlantic Innocence Project,
and the Innocence Project, March 21, 2012
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Innocence Project National Criminal Justice Commission Act (S. 306)
letter to Senate, September 2011
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Letter to Senator Leahy from Mary Lou Leary, U.S. Department of
Justice, March 21, 2012
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Letter to Senator Leahy from Stephen Saloom, Esq., Policy Director,
Innocence Project
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The National Criminal Justice Commission Act of 2011, S.306, fact sheet
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Endorsement letter from national organizations, businesses, and State
and local organizations for the National Criminal Justice Commission
Act of 2011
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``The Innocent and the Shammed,'' by Joshua Marquis, op-ed contributor,
New York Times, January 26, 2006
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Scott Shellenberger, State's Attorney for Baltimore County, Maryland,
written testimony
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