Federal News Service
June 13, 2000
Senate Judicary Committee Testimony of Barry Scheck
On Post-Conviction DNA Testing
SENATOR Hatch: Our first witness is Barry Scheck, who is a professor at Benjamin M. Cardozo School of Law and the co-founder of the Innocence Project. Mr. Scheck is also a member of the National Commission on the Future of DNA Evidence. Personally, I have a lot of respect for him, and we may differ on whether or not there should be a death penalty, but I have a great deal of respect for your knowledge and your ability.
Mr. BARRY SCHECK: Thank you. There's one other qualification I should state that I think may help the committee with my testimony. That is I am a Commissioner of Forensic Science in the State of New York, which means we have a commission which regulates our crime labs and helps set up our DNA databank. And working with Howard Schaeffer (ph), who I sue a lot of times in civil rights actions, the mayor of the city of New York, and Governor Pataki. We've worked hand in hand in cleaning up the DNA backlog. I'm the one that told them to test those 15,000 untyped rape kits in the city of New York. So I think I have a good handle on the cost issue which seems to be of concern in light of Ms. Camps' testimony.
First let me say, Senator Hatch, that there have been at least 73 post-conviction DNA exonerations in North America -- 67 in the United States, six in Canada. Our Innocence Project has either assisted or been the attorney of record in 39 of these cases, including the eight people that were sentenced to death.
In 16 of these 73 cases, the DNA testing has not only remedied the miscarriage of justice, but it's led to the identification of the real perpetrator, just as it did in the case of Dennis Fritz.
With the expedited expanded use of DNA databanks and with the continued technological advances in DNA testing, not only will post- conviction DNA testing continue exonerating people, but it also is going to increase the number of times that we're able to identify the real perpetrator.
There is an urgent need for national legislation to assist in what is actually a narrow but important group of people -- those who have been sentenced to decades in prison or sit on death row, but could show through post-conviction DNA testing that they were wrongly convicted or sentenced.
I am profoundly indebted to you, Senator Hatch, for taking up this cause and holding these hearings. And of course I cannot thank enough Senator Leahy, Senator Feingold, Senator Smith, for cosponsoring the Innocence Protection Act.
Let me just hit a few key points in considering this historic legislation. First, very quickly, we can't limit this just to capital life sentence cases. Neither bill does, but the reason I raise it is that when you look at some of the post-conviction DNA statutes that are passing, particularly the State of Washington, the State of Tennessee, they only limit it to capital cases or life sentence cases. And what about all the other people like Dennis Fritz who were in jail for decades who can prove their innocence with the DNA test?
The issue of statute of limitations. In the report that Woody Clarke and Jim Wooley and I served on recommendations for handling post-conviction DNA applications, what comes out of our commission on the future of DNA evidence, a commission that was made up primarily of law enforcement people, police chiefs, crime lab directors, prosecutors such as my colleagues. We came to the considered judgment that in terms of seeking a post-conviction DNA application there should be no statute of limitations.
By that I simply mean that if a DNA test could show that with reasonable probability you were wrongly convicted or sentenced, then you should have a chance. And the reason that's so important is that we're looking at cases that are 10, 15, 20 years old. By the time, whatever standards you choose, an inmate is able to find the transcripts, find the lab reports, find the police reports, and make the necessary showing that a favorable DNA test would show reasonable probability of wrongly convicted or sentenced, it takes a number of years. Particularly in jurisdictions where there are no counsel, certainly not in post-convictions, that can handle this. It was true in just about every one of these cases where people were exonerated.
The other point I should jump to right away -- And on this statute of limitations point. Just look at all the people. I mean just since our book, Actual Innocents, was published, Clyde Charles in Louisiana, 19 years in jail in the infamous farm in Angola prison. He spent nine years trying to get the DNA tests.
Another inmate that greatly concerns me, a man named Archie Williams in Baton Rouge, Louisiana. He really gets to the point. He has been convicted in a case where it was one perpetrator, a single eyewitness. The prosecutor took the position at the time of trial that the blood type from the semen matched Mr. Williams. He's asking for a DNA test. The Louisiana courts won't let him have that test. We've been pushing for it for years. We're now in federal court.
The rationale they came up with, and this is why I think the actual innocence standard, Senator Hatch, is too high. The rationale the Louisiana courts came up with -- and it's happening case after case -- is they suddenly said I don't care if the prosecution theory at the trial is that he was the semen donor. It's possible that maybe there was another consensual donor. Maybe the husband of the victim had sex with her. Well that's something we can test with elimination samples, and we've done in case after case. Yet the courts have denied him access, even though it's perfectly appropriate.
If you watch tonight, the Case for Innocence, a Frontline special produced by Alford Beckel (ph), that is going to show you the case of Roy Cliner (ph), the --
SEN. HATCH: What time is that on, do you know?
MR. SCHECK: I don't know when PBS is running it, but it's
SEN. HATCH: It's Frontline?
MR. SCHECK: Yes, and I will send a copy of the tape, sir. It will show the Cliner case. When you see the reasoning of the courts there, it's going to trouble you. So I think actual innocence is too high.
SEN. HATCH: It troubles me now.
MR. SCHECK: We've had so many people who have spent so many years knocking on the doors, unable to get the DNA tests because of the statute of limitations, and I know, given the tenor of these hearings, something's going to be done about it.
Now let me get to the cost point about preserving the biological evidence and why actually the proposal of the Leahy bill is going to help.
As Jim Wooley and Woody Clarke certainly will tell you, we had the people in our DNA commission from the Los Angeles police department crime lab come to us and make a presentation that they have all this evidence and they're afraid to get rid of it.
I can tell you, because we're the ones in the trenches litigating these trenches. The rules on preservation of evidence across the states is totally haphazard. It doesn't even matter what the rules are. It's totally fortuitous whether they save the samples or not.
But if we say if you're in jail and biological evidence could be determinative it should be preserved unless the state comes in and gives you notice, 90 days, and says now we're going to destroy it. That's going to help. And it's going to help remember because every time an innocent person is put in jail the real perpetrator is out there committing more crimes. That's what DNA testing and DNA databanking can help us.
So in these old cases it's a net plus to law enforcement that they have to inventory in a sensible way the old, unsolved cases. There is no bigger supporter than I am of testing these old, unsolved cases.
I have a problem, Senator, just in the language. I hear from the tenor of your remarks that you wouldn't intend it to be a bar, but when we talk about -- "the evidence was not subject to DNA testing requesting because the technology was not available at the time of the trial" --
Taken literally, almost every person exonerated with the DNA tests would be excluded, if it was taken literally. Because since 1988, as Dennis will tell you, there was some form of DNA testing that was in theory out there.
The compromise that our DNA Commission, Leahy bill says, that if a more accurate DNA test can show you innocent, then you have a shot at it, because there have been some improvements in the technology.
SEN. HATCH: I'm for that. So there's no problem. We'll resolve that one way or the other.
I think ours does, but -- Ours is the exact language of the Illinois statute, and we thought we'd solved the problem, I think we have, but we'll look at that. You're making a good point.
MR. SCHECK: The final point I just want to make, as I see my time is up, is that this is going to be a narrow number of cases, really, in the final analysis. Seventy-five percent of the time in these innocence cases the evidence is lost or destroyed, unfortunately, and we can't get the test, even if it could be dispositive on the issue of guilt or innocence. If we pass the Leahy bill, just with that standard today, I don't think nationwide, ultimately, by the time we find the evidence, there would be 100 cases. But these cases are of such critical importance to learning something about the criminal justice system.
In our book, Actual Innocence, we go through what DNA testing shows us in these post-conviction situations. What we can learn about mistaken identification, false confessions, jailhouse informants, bad lawyers, prosecutorial police misconduct, all the causes of convictions of the innocent, and we propose mainstream proposals that Republicans and Democrats, liberals and conservatives, prosecutors and defense lawyers can all get behind because they not only prevent the conviction of the innocent but the lead to the identification of the guilty before they commit more crimes.
That's what this is about. That's what we lay out here. And Senator, I'm so happy that you presented this. It's a race against time. We are in a race against time as they go through bureaucratically destroying the biological evidence that are the keys to freedom of people. Cases, we can learn so much to fix this system and change it.
I agree with Senator Schumer's remarks that this is neutral. Draw what conclusions you may want about the death penalty, but the need for this kind of innocence protection legislation and the need for more standards and more money for counsel, I can't emphasize enough how important that is.
SEN. HATCH: I want an autographed copy of that book, okay?
MR. SCHECK: I brought a whole series, and they're all available for each senator.
SEN. HATCH: I'll put it in my autographed book section after reading it.....
SEN. FEINGOLD: Mr. Scheck, I want to thank you for this book. It was truly an eye-opening examination of the failings of our criminal justice system. I commend you and Peter Newfeld (ph) and Jim Dwyer (ph) and you and your colleagues at the Innocence Project for what you've contributed, and it's been very helpful ...
MR. SCHECK:Thank you, sir.
SEN. FEINGOLD: ... in regard to all that we've done.
Copyright 2000 LEXIS-NEXIS Group, Federal News Service, Inc. All rights reserved.
Barry Scheck's Prepared Senate Judiciary Committee Statement on Post-Conviction DNA Testing
Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted
by Barry Scheck, Peter Neufeld, Jim Dwyer
