[Congressional Record Volume 150, Number 126 (Thursday, October 7, 2004)]
[Senate]
[Pages S10674-S10677]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     JUSTICE THROUGH DNA TECHNOLOGY

  Mr. HATCH. Mr. President, I would like to discuss H.R. 5107, the 
Justice for All Act that was just passed by the House, by an 
overwhelming bipartisan vote of 393 to 14. The bill is the result of 
the hard work and dedication of many on both sides of the aisle.
  In particular, I would like to commend Chairman of the House 
Judiciary Committee Sensenbrenner and Ranking Democrat, Representative 
Delahunt for their outstanding leadership in shepherding this 
groundbreaking crime bill that will allow us to further unleash the 
evidentiary power of DNA. It will provide law enforcement the ability 
to find and punish the guilty and give use the comfort of certainty in 
criminal prosecutions. Moreover, the House attached Senator Kyl's and 
Senator Feinstein's critical Crime Victims Act that ensures victims' 
rights are protected in criminal prosecutions. That is very important.
  This House passed bill is the result of months of intense 
negotiations and addresses the concerns raised regarding title III of 
the former DNA bill, including the major concerns, I believe, of 
Senators Kyl, Sessions, and Cornyn.
  And let me say, the overwhelming support for this bill in the House 
could not have been achieved without the hard work and dedication of 
the Department of Justice. I would like to specifically thank Attorney 
General Ashcroft, Assistant Attorney General William Moschella, and 
Deputy Assistant Attorney General Sean McLaughlin for bringing the 
parties together to create a truly bipartisan bill that meets the 
interests of all parties. Without their constructive input we would 
have never been able to get to where we are. I personally want to thank 
them for their support.

  But our work is not done. I call upon the Senate to act expeditiously 
to pass this anticrime bill so we can present it to the President for 
his signature.
  So we all know, there has been a tremendous amount of work done in 
the 22-page memorandum by Mr. Moschella and the Justice Department. I 
think we have made a monumental effort to address every one of those 
concerns. We haven't been able to address every case exactly the way 
the Justice Department requested, but there has been a good-faith 
effort on the part of the distinguished Senator from Vermont and 
Congressman Delahunt to be able to bring this Justice for All Act 
through to completion.
  When it passed 393 to 14 yesterday in the House, I think that sent a 
message to everybody that not only would we get this DNA bill, but we 
would also get the victims' rights bill for which Senators Kyl and 
Feinstein have worked so long and hard.
  Rather than take the time of my distinguished friend from Arizona and 
any further time from the bill on the floor, I want to compliment the 
Justice Department.
  I hope we can get the last few things resolved so that this bill can 
pass, and that means working it out with a few of our colleagues in the 
Senate. I believe when they look at this bill and read it, they will 
realize almost every one of those concerns have been addressed in good 
faith. Senator Leahy and I have worked hand in hand trying to make sure 
those matters were addressed.
  Mr. President, I hope we can get this bill up and out so we can do 
what should be done for 400,000 rape kits--some of which are 20 years 
old--to help not only to discover those who are guilty but to put those 
who are on the streets, who have raped women, in jail where they 
belong. This bill will do exactly that. It is a very important piece of 
legislation.
  Having said that, however, I want to make it clear that this 
administration has done a great deal. Thus far, it has committed to 
doing this, and it is the first administration that has done it. We 
have known about these rape kits for years. This is the final touch in 
the bill to help protect women in this country. It will be very 
important for us to pass it today. I hope we can get it done.
  We are working very diligently to try to satisfy the concerns of all 
of our colleagues. Thus far, we are down to just one major concern, and 
hopefully when they read the bill they will realize we have addressed 
that as well and will agree to satisfy this matter.
  I thank my colleague from Arizona and my colleague from Kentucky.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, a year ago this month, I stood with a 
bipartisan group of Senators and Representatives to announce the 
introduction of the Advancing Justice Through DNA Technology Act of 
2003. This is landmark legislation. It provides law enforcement with 
the training and equipment required to effectively and accurately fight 
crime in the 21st century. It enacts the President's DNA initiative, as 
the Chair probably knows, authorizing more than $1 billion over the 
next 5 years to eliminate the backlog crisis in the Nation's crime labs 
and fund other DNA-related programs. It also includes the Innocence 
Protection Act, a death penalty reform effort I launched more than 4 
years ago.
  We introduced our bill on October 1, 2003. One month later, the House 
passed it with overwhelming support, 357 to 57. Among those supporting 
the bill were the chairman of the House Judiciary Committee, 
Congressman James Sensenbrenner, and virtually the entire Republican 
leadership, including Majority Leader DeLay. Clearly there was a broad 
consensus for action. The House vote marked a major breakthrough in 
finding solutions to these serious flaws in our criminal justice 
system.
  Unfortunately, while the other body acted, we did not. Despite 
Chairman Hatch's sponsorship of the bill and strong support of it, the 
Senate Judiciary Committee did not begin work on

[[Page S10675]]

the bill until September, almost a year after the House had passed it. 
At that point we were slowed by resistance from some Republican members 
of the panel, but after many hours we succeeded in working through the 
20-plus amendments that were offered. All of them were rejected. Then 
the bill was approved by a strong bipartisan majority.
  That was 3 weeks ago. Since then, this critical legislation has been 
blocked by the same Senators who tried blocking it in committee, and 
unfortunately they have been buttressed by opposition from President 
Bush and Attorney General John Ashcroft.
  Undeterred by the fact that the Senate has not moved on this very 
important legislation, the House acted again. Yesterday it voted on the 
Justice For All Act of 2004, H.R. 5107. This is a criminal justice 
package that bundles the Senate DNA bill with another bill, already 
passed in the Senate, that would increase protection for victims of 
Federal crimes. Yesterday's House margin, 393 to 14, was even larger 
than it was a year ago. In these times you rarely see such bipartisan 
support--393 to 14. I believe it sends a loud message to us here in 
this body of: What are we waiting for? Let's pass this bill.
  I want to take a moment to commend the Republican chairman of the 
House Judiciary Committee, Jim Sensenbrenner, who spearheaded this 
effort in the House. The chairman deserves high praise for his 
leadership. We could never have come as far as we have without his 
steadfast commitment, and the hard work of his impressive staff.
  I also thank my long-term colleagues in this effort, Representative 
Bill Delahunt from Massachusetts--I was honored to serve overlapping 
time as prosecutors, me in Vermont, Mr. Delahunt in Massachusetts--and 
Representative Ray LaHood, Republican of Illinois. They worked 
tirelessly over many years to pass the Innocence Protection Act. They 
deserve much of the credit for building the strong bipartisan support 
for the bill in the House.
  The House has spoken, not once but twice. I believe Senate action is 
long overdue. It should not be threatened by a few holdouts in the 
Senate, even if they are emboldened by continuing help from the 
Department of Justice. I remind everybody, none of us here works for 
the administration--I don't care whether it is a Republican 
administration or a Democratic administration. We are elected as 
individual Senators, independent of the executive branch or the 
judicial branch.
  The Bush administration's role in the effort to kill this bill is 
significant and it is a matter of public record. On April 28 of this 
year we received a 22-page letter from Assistant Attorney General 
William Moschella, presenting ``the views of the Department of Justice 
and the administration'' regarding the bill the House of 
Representatives had earlier passed by a vote of 357 to 67. They 
expressed the Administration's strong opposition to virtually every 
aspect of the bill.
  I have rarely seen a letter--in fact, I cannot remember a time I have 
seen a letter from an executive branch agency so hostile to a 
bipartisan legislative effort that had already passed one House of 
Congress. I was shocked the Department would write such a scathing 
letter about a bill that had been carefully negotiated by Chairman 
Sensenbrenner and Chairman Hatch, working very closely together. In 
light of the support of the congressional leadership, I thought the 
President would have supported the bill and worked to make the capital 
punishment system more fair. Instead, his Administration chose to 
stonewall the reforms and defend the injustices in current law.
  The new House bill contains additional concessions to the Department 
of Justice and to the handful of Republican opponents in the Senate. 
But despite these concessions, despite the urgent need for reform, the 
Bush administration has obstinately refused to support the bill or even 
to withdraw its formal opposition to the bill. In particular, the 
Department has pressed its unreasonable demand for an arbitrary 3-year 
time limit on obtaining a DNA test after conviction.

  If the White House kills this bill that has passed so overwhelmingly 
in the House, it will be a travesty. It has, after all, been supported 
by key members of the Republican leadership in both the House and the 
Senate; it has passed by an overwhelming margin in the House. To put 
this off another year may seem fine to the President and the Attorney 
General, but another year is a long time if you are a crime victim and 
you are hoping they may find the person who committed the crime, or if 
you are wrongly accused and you are waiting on death row for the chance 
to prove your innocence. Another year will pile more untested rape kits 
on to the thousands already piled up in labs across the country.
  This bill is a rare example of bipartisan cooperation for a good 
cause, and instead of helping, the White House has actively hindered. 
They have been unwilling to lead. They have been unwilling to follow. 
Now, when all it would take is for them to get out of the way, they are 
even unwilling to stand aside.
  I think it is time for them to understand what is happening here, and 
to become part of the solution instead of part of the problem. An 
overwhelming bipartisan coalition in both the House and the Senate 
supports this bill because it will mean more fair and effective 
criminal justice in this country.
  If Congress fails to enact this much-needed law this year, I do not 
lay the blame on leadership in the House or the Senate, because the 
leadership in both parties has supported it, just as Senator Hatch and 
Chairman Sensenbrenner have. If the Congress fails to enact this law 
this year, then I lay the responsibility directly at the feet of 
President Bush and Attorney General Ashcroft. They deserve to be held 
accountable, and will be if their stubborn opposition to the bill 
causes it to die. The leaders of their own party support it, as the 
leaders of my party do. They ought to stand aside.
  For all those victims' groups, all those church groups, all the 
others who have supported this bill--as you know, if it doesn't go 
forward, it is not the fault of Congress. You should look down toward 
the other end of Pennsylvania Avenue.
  Mr. President, I ask unanimous consent to print a longer statement in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record as follows:

                      Justice For All Act Of 2004

                            October 7, 2004

       A year ago this month, I stood with a bipartisan group of 
     Senators and Representatives to announce the introduction of 
     the Advancing Justice Through DNA Technology Act of 2003. 
     This landmark legislation provides law enforcement with the 
     training and equipment required to effectively, and 
     accurately, fight crime in the 21st Century. It enacts the 
     President's DNA Initiative, which authorizes more than $1 
     billion over the next five years to eliminate the backlog 
     crisis in the Nation's crime labs, and to fund other DNA-
     related programs. It also includes the Innocence Protection 
     Act, a death penalty reform effort I launched more than four 
     years ago.
       DNA is the miracle forensic tool of our lifetimes. It has 
     the power to convict the guilty and to exonerate the 
     innocent. And as DNA testing has become more and more 
     available, it also has opened a window on the flaws of the 
     death penalty process.
       Hearing after hearing before the House and Senate Judiciary 
     Committees has shown beyond any doubt that the death penalty 
     system is broken. These mistakes in our system of justice 
     carry a high personal and social price. They undermine the 
     public's confidence in our judicial system, they produce 
     unbearable anguish for innocent people and their families and 
     for the victims of these crimes, and they compromise public 
     safety because for every wrongly convicted person, there is a 
     real criminal who may still be roaming the streets. Indeed, 
     in dozens of cases in which DNA testing has exonerated a 
     wrongfully convicted person, the same test has identified the 
     real perpetrator.
       Our bill would put this powerful tool into greater use in 
     our police departments and our courtrooms. It also takes a 
     modest step toward addressing one of the most frequent causes 
     of wrongful convictions in capital cases--the lack of 
     adequate legal counsel.


        Broad Bipartisan Support In Congress And Around Country

       We introduced our bill on October 1, 2003. One month later, 
     the House passed it with overwhelming support--357 to 57. 
     Among those supporting the bill were the Chairman of the 
     House Judiciary Committee, Congressman James Sensenbrenner, 
     and virtually the entire Republican leadership, including 
     Majority Leader DeLay. Clearly there was a broad consensus 
     for action. The House vote was a major breakthrough in 
     finding solutions to the serious flaws in our justice system.
       Sadly, the House acted, but the Senate did not. Despite 
     Chairman Hatch's sponsorship of the bill, the Senate 
     Judiciary Committee did not begin work on the bill until 
     September, almost a year later. At that point,

[[Page S10676]]

     we were slowed by resistance from three Republican members of 
     the panel. After many hours, we succeeded in working through 
     the 20-plus amendments that were offered--all of which were 
     rejected--and the bill was approved by a strong bipartisan 
     majority.
       It speaks volumes about the opposition to this bill that 
     one of the amendments offered in Committee sought to strike 
     the Innocence Protection Act in its entirety. Our opponents 
     want law enforcement to use DNA aggressively to fight crime, 
     and so do I. But they do not want to let those who are 
     wrongly convicted use DNA to prove their innocence. That is 
     wrong. DNA can convict the guilty, but it can also exonerate 
     the innocent. It should be available for both purposes.
       That is why victims groups support the whole package of 
     reforms in this bill. They do not want the wrong guy locked 
     up while the real rapist or murderer is out committing other 
     crimes. Throughout the Committee's consideration of this 
     bill, there were two fixtures in the room--Kirk Bloodsworth 
     and Debbie Smith. Kirk was exonerated by DNA testing. In 
     Debbie's case, DNA testing led to the arrest and conviction 
     of her attacker. Both support the whole bill.
       The Committee reported the bill to the full Senate three 
     weeks ago. Since then, this critical legislation has been 
     blocked by the same three Republican Senators who held up the 
     bill in Committee, buttressed by opposition from President 
     Bush and Attorney General John Ashcroft.
       This week, the House has acted again. It voted yesterday on 
     the Justice For All Act of 2004, H.R. 5107, a criminal 
     justice package that bundles the Advancing Justice Through 
     DNA Technology Act with another bill, already passed in the 
     Senate, which will increase protections for victims of 
     Federal crimes. Wednesday's House margin--393 to 14--was even 
     larger than the vote a year ago, and sends a loud and clear 
     message to the Senate: ``Pass this bill!''
       I want to take a moment to commend the Republican Chairman 
     of the House Judiciary Committee, Jim Sensenbrenner, who has 
     spearheaded this effort in the House. Chairman Sensenbrenner 
     deserves high praise for his leadership. We could never have 
     come as far as we have without his steadfast commitment and 
     the hard work of his impressive staff.
       I also want to thank my longtime colleagues in this 
     endeavor, Representative Bill Delahunt of Massachusetts and 
     Representative Ray LaHood of Illinois. They have worked 
     tirelessly over many years to pass the Innocence Protection 
     Act, and deserve much of the credit for building the strong 
     support for the bill in the House.
       The House has now spoken not once, but twice. Senate action 
     is long overdue. Sadly, Senate passage in the waning days of 
     this congressional session continues to be threatened by a 
     few holdout Republicans, emboldened by continuing opposition 
     from Department of Justice.


                     Inaction Has Real Consequences

       While Congress has failed to act, much has happened in the 
     real world. Over the last year, five more wrongfully 
     convicted individuals were cleared of the crimes that sent 
     them to death row, bringing to 116 the number of death row 
     exonerations since the reinstatement of capital punishment. 
     Also in the past year, another 10 wrongfully convicted 
     individuals were exonerated by DNA testing in non-capital 
     cases. That brings to 151 the number of post-conviction DNA 
     exonerations in this country in little over a decade.
       What else has happened in the real world? Just last week, 
     Houston's top police official called for a moratorium on 
     executions of inmates who were convicted based on evidence 
     that was handled or analyzed by the Houston Police 
     Department's crime lab. In a floor statement in March 2003, I 
     described the widespread problems at that lab, which included 
     poorly trained technicians, shoddy recordkeeping, and holes 
     in the ceiling that allowed rain to possibly contaminate 
     samples. It turns out that the situation is even worse than 
     previously imagined.
       In May, the Republican Governor of Texas pardoned Josiah 
     Sutton, who spent 4\1/2\ years in prison for a crime that he 
     did not commit. He was only a teenager when he was convicted 
     and sentenced to 25 years for rape, based largely on a bogus 
     DNA match by the Houston police lab. More recently, Houston's 
     district attorney admitted that chemical testing used to 
     convict another man was inaccurate. That was after six 
     forensic experts concluded that the lab's analysis of DNA 
     evidence in the case was ``scientifically unsound.''
       The situation in Houston is appalling but it is not without 
     precedent. There have been similar problems in various State 
     crime labs, as well as in the once-distinguished FBI lab. 
     Crime labs across the country are suffering the consequences 
     of years of increased demand and decreased funding.
       One consequence is sloppy lab work. Another consequence is 
     massive backlogs. In December 2003, the Department of Justice 
     estimated that there were more than 500,000 criminal cases 
     with biological evidence awaiting DNA testing. This estimate 
     included 52,000 homicide cases and 169,000 rape cases. Ten 
     months later, the situation has only gotten worse. While the 
     Senate has been idle on this bill, rape kits and other crime 
     scene evidence has been sitting on shelves, untested for lack 
     of funding. This bill would authorize the funding that our 
     labs so desperately need.


    Bush Administration's Repeated Attempts To Sabotage Bipartisan 
                               Initiative

       The Bush Administration's role in the effort to kill this 
     bill is a matter of public record. On April 28 of this year, 
     we received a 22-page letter from Assistant Attorney General 
     William Moschella presenting ``the views of the Department of 
     Justice and the Administration'' regarding the bill that the 
     House of Representatives had earlier passed by a vote of 357 
     to 67. The letter expressed the Administration's strong 
     opposition to virtually every aspect of the bill.
       I have rarely seen a letter from an Executive branch agency 
     so hostile to a bipartisan legislative effort that had 
     already passed one house of Congress. I was shocked that the 
     Department would write such a scathing letter about a bill 
     that had been carefully negotiated by Chairman Sensenbrenner 
     and Chairman Hatch. In light of the support of the Republican 
     congressional leadership, I expected that the President would 
     support this bill and work to make the capital punishment 
     system more fair and effective. Instead, he chose to 
     stonewall reform and defend the injustices in current law.
       The Justice Department's criticisms of the bill are all 
     unfounded. Let me respond to just a few of the key claims in 
     the Department's April 28 letter.
       The Department claimed that the post-conviction DNA testing 
     provisions in the bill would invite abusive prisoner 
     litigation. In fact, the bill includes numerous checks 
     against frivolous litigation, including the following: An 
     applicant seeking a test must assert his ``actual innocence'' 
     under penalty of perjury; The applicant must not have waived 
     the right to DNA testing, or knowingly failed to request DNA 
     testing in a prior post-conviction motion; A chain of custody 
     must be established; The proposed DNA testing must be 
     reasonable in scope; The applicant must identify a theory of 
     innocence not inconsistent with any affirmative defense 
     presented at trial; Testing may be ordered only if it could 
     produce ``new material evidence'' and raise a reasonable 
     probability that the applicant did not commit the offense; 
     And the bill establishes serious sanctions, including new 
     criminal charges, if DNA testing produces inculpatory 
     results.
       The Department argued that the bill should bar post-
     conviction DNA testing unless DNA technology was 
     ``unavailable'' at the time of the defendant's trial. But 
     witnesses at House and Senate hearings on the bill reported 
     numerous examples of defendants failing to request DNA 
     testing despite its availability at the time of trial because 
     the defense lawyers were incompetent or unfamiliar with the 
     technology, the defendant was mentally ill or retarded, or 
     the defense was simply unaware of the evidence, perhaps due 
     to government misconduct.
       The Department complained that the bill would allow 
     prisoners who pleaded guilty to obtain a DNA test. But 
     witnesses at the hearings told Congress of the startling fact 
     that innocent defendants sometimes do plead guilty, due to 
     bad lawyers, mental retardation, or government intimidation. 
     David Vasquez in Virginia, Frank Townsend in Florida, and 
     Chris Ochoa in Texas are just three examples of this 
     disturbing phenomenon.
       The Department claimed that the evidence retention 
     requirements in the bill were unduly burdensome. In fact, we 
     took every precaution to make sure that these requirements 
     would not pose an undue burden to law enforcement. Only 
     biological evidence must be preserved. Evidence need not be 
     preserved if the court denies a request for testing, the 
     defendant waives testing, or 180 days pass after the 
     defendant receives notice that the government intends to 
     destroy the evidence. If evidence would be impractical to 
     retain, the government need only take reasonable measures to 
     preserve a portion of the evidence. Finally, the failure to 
     retain evidence does not provide grounds for habeas corpus 
     relief.
       The Department claimed that the counsel provisions in the 
     bill amounted to a Federal regulatory system for capital 
     defense. That characterization is grossly unfair. The Capital 
     Representation Improvement Grants authorized in the bill are 
     strictly voluntary. States are under no obligation to 
     participate. At House and Senate hearings on the bill, 
     witnesses enumerated numerous studies over 20 years that 
     document the failure of many States to provide competent 
     counsel in capital cases. In light of these long-standing 
     flaws, it is entirely appropriate for the Federal 
     government to offer financial assistance to those States 
     that seek it.
       The Department claimed that the agencies responsible for 
     appointing capital defense lawyers would have limitless 
     resources. This criticism is unsupported and contrary to the 
     experience in states like North Carolina and New York that 
     have established independent defense entities which operate 
     within a budget.
       If the White House kills this bill it will be a travesty. 
     Putting this off another year may seem fine to the President 
     or the Attorney General, but another year is a long time if 
     you are a crime victim or if you are wrongly accused, waiting 
     on death row for the chance to prove your innocence. Another 
     year will pile more untested rape kits on to the thousands 
     already piled up in labs across the country.
       This bill is a rare example of bipartisan cooperation for a 
     good cause, and instead of helping, the White House has 
     actively hindered. They have been unwilling to lead.

[[Page S10677]]

     They have been unwilling to follow. Now, when all it would 
     take is for them to get out of the way, they're even 
     unwilling to stand aside. The time has come for the President 
     to understand what is happening here, and to become part of 
     the solution instead of part of the problem.


           Bush Administration Ignores Efforts to Compromise

       This bill is the product of years of work and many months 
     of intense negotiations. It reflects a lot of compromises by 
     all the principal sponsors. None of us is entirely happy with 
     everything in the bill. There are plenty of things that I 
     would do differently. There are plenty of things that Senator 
     Hatch and other cosponsors would do differently. Nobody got 
     everything they wanted.
       But that is why the bill has such broad bipartisan appeal. 
     That is what the legislative process is all about--finding 
     the middle ground that a broad majority can support. That is 
     why 393 members of the House support this bill, and why a 
     substantial majority of the Senate would vote for it if our 
     opponents would allow it to come to a vote.
       The new House bill reflects a number of additional 
     concessions to the Department of Justice and to our 
     Republican opponents in the Senate. Let me briefly describe 
     just a few of the changes that were made.
       First, to address concerns raised in Committee by Senator 
     Sessions and others, the Debbie Smith DNA Backlog Grant 
     Program now authorizes the use of grant funds to address non-
     DNA forensic science backlogs, but only if the State has no 
     significant DNA backlog or lab improvement needs relating to 
     DNA processing.
       Second, the bill no longer prevents States from uploading 
     arrestee information into their own DNA databases, although 
     they must expunge such information if the charges are dropped 
     or result in an acquittal.
       Third, the standard for getting post-conviction DNA testing 
     has been streamlined by striking unnecessary language that 
     required courts to assume exculpatory test results. Obviously 
     a court considering such an application cannot know for sure 
     what the test results would reveal and must consider the 
     application in a light most favorable to the applicant in 
     light of all the evidence.
       Fourth, the bill no longer permits Federal inmates to 
     obtain DNA testing of evidence relating to a State offense, 
     except when that offense may have resulted in a Federal death 
     sentence.
       Fifth, it is now presumed that a motion for post-conviction 
     DNA testing is timely if filed within five years of enactment 
     of the bill, or three years after the applicant was 
     convicted, whichever is later. Thereafter, it is presumed 
     that a motion is untimely, except upon good cause shown. 
     The Department has complained that the ``good cause'' 
     exception is so broad you could drive a truck through it, 
     and its continued opposition turns in large part on the 
     inclusion of this language. But while I agree that the 
     language is broad, it is intentionally so; I would not 
     agree to a presumption of untimeliness that could not be 
     rebutted in most cases. At the same time, this provision 
     should allow courts to deal summarily with the 
     Department's hypothetical bogeyman--the guilty prisoner 
     who ``games the system'' by waiting until the witnesses 
     against him are dead and retrial is no longer possible, 
     and only then seeking DNA testing.
       Sixth, modifications were made to the standard for 
     obtaining a new trial based on an exculpatory DNA test 
     result; instead of establishing by ``a preponderance of the 
     evidence'' that a new trial would result in an acquittal, 
     applicants must now establish this by ``compelling 
     evidence.'' The point of this change, which I proposed, is to 
     require courts to focus on the quality of the evidence 
     supporting an applicant's new trial motion rather than trying 
     to calculate the odds of a different verdict.
       Finally, the bill now specifies that 75 percent of funds 
     awarded under the new capital representation improvement 
     grant program must be aimed at improving trial counsel, 
     unless the Attorney General waives this requirement. This 
     change was included to assuage concerns that this program 
     will somehow resurrect the post-conviction resource centers 
     that Congress de-funded in the mid-1990s.
       With few exceptions, these most recent changes to the bill 
     were made at the behest of the Department of Justice, after 
     weeks of negotiations aimed at securing the Department's 
     endorsement of the bill. Yet despite the changes, and despite 
     the urgent need for reform, the Bush Administration has 
     obstinately refused to support the bill or even to withdraw 
     its formal opposition to the bill. As Chairman Sensenbrenner 
     has said, we ``bent over backwards'' to try to satisfy the 
     Department's concerns, but ``no matter how much we bent, 
     nothing could satisfy them.'' In particular, the Department 
     pressed its unreasonable demand for an arbitrary three-year 
     time limit on obtaining a DNA test after conviction.
       Let us be clear what this means. A DNA test is not a get-
     out-of-jail-free card; it does not even guarantee someone a 
     new trial. All this is about is providing access to evidence 
     in the government possession for purposes of forensic 
     testing. Judge Michael Luttig, one of the most conservative 
     jurists in the country, has written that this is nothing less 
     than a constitutional right. Senator Specter took the same 
     position in the last Congress. A large majority of the States 
     that have passed post-conviction DNA testing laws have 
     rejected time limits, recognizing, as I do, that there should 
     never be a time limit on innocence.
       The reforms proposed in the Justice for All Act will mean 
     more fair and effective criminal justice in this country. The 
     few remaining opponents of the bill still wave around the 
     April 28 letter from the Department of Justice. If Congress 
     fails to enact this needed law this year I lay responsibility 
     directly at the feet of President Bush and Attorney General 
     Ashcroft. They deserve to be held accountable if their 
     stubborn opposition to the bill causes it to die.

                          ____________________