[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

                              ----------                              

                    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

                              ----------                              


                       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

[GRAPHIC] [TIFF OMITTED] T9837.001

              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

[GRAPHIC] [TIFF OMITTED] T9837.038

     ``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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