Prepared Statement of Prof. Barry C. Scheck Co- Director, Innocence Project Benjamin N. Cardozo School of Law Commissioner, NY State Forensic Science Commission Commissioner, NIJ Commission on the Future of DNA Evidence Co-author, Actual Innocence Before the Senate Judiciary Committee

There have been at least 73 post-conviction DNA exonerations in North America; 67 in the United States, and 6 in Canada. Our Innocence Project at the Benjamin N. Cardozo School of Law has either assisted or been the attorney of record in 39 of those cases, including 8 individuals who served time on death row. In 16 of these 73 post- conviction exonerations, DNA testing has not only remedied a terrible miscarriage of justice, but led to the identification of the real perpetrator. With the expanded use of DNA databanks and the continued technological advances in DNA testing, not only will post-conviction DNA exonerations increase, but the rate at which the real perpetrators are apprehended will grow as well.

There is an urgent need for national legislation to assist a narrow but important group of people: Those who are 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 and Senator Smith for co-sponsoring the Innocence Protection Act.

As you consider this historic legislation, I would urge you to keep these key points in mind:

1. Do Not Limit Relief to Capital or Life Sentence Cases.

Only 8 of the 73 post-conviction DNA exonerations involved inmates on death row. People who have been sentenced to decades of incarceration but can prove their innocence deserve an opportunity for justice. Unless there is a uniform requirement that states give inmates such an opportunity, they will not necessarily receive. For example, the State of Washington just passed a post-conviction DNA bill but it only applies in capital or life sentence cases. Fundamental fairness requires an equal opportunity for all classes of inmates across the country to prove their innocence; only federal legislation can provide such a guarantee.

2. No Statute of Limitations.

In our report, Recommendations For Handling Post-Conviction DNA Applications, and in our model statute, the Commission on the Future of DNA Evidence did not create any time limits or statute of limitations for making a post-conviction DNA application. The key requirements were substantive -- the inmate has to show a reasonable probability that DNA testing would demonstrate he was wrongly convicted or sentenced. I can assure you, based on the work of the Innocence Project, which has done, by far, more post-conviction DNA litigation than anyone else, that the Commission's decision not to create any new time limits or statute of limitations was a considered judgment and a correct one. When one is dealing with old cases (10, 15, sometimes 20 years old) it is difficult to assemble police reports, lab reports, and transcripts of testimony that are necessary to show that a DNA test would demonstrate innocence. Indigent inmates serving hard time may not have the resources or access to counsel to gather the necessary materials expeditiously.

That was true for Dennis Fritz and Ron Williamson who were exonerated with DNA testing in April of 1999 in Oklahoma. Dennis received a life sentence. Ron came within 5 days of execution. DNA testing also identified the person, through a DNA databank hit, who probably committed the rape homicide. It was true for Clyde Charles of Houma, Louisiana who spent 19 years in Angola Prison, the so-called "Farm," and 9 years trying, unsuccessfully, to get a DNA test within the state courts of Louisiana -- they said he was too late -- until we got a federal judge to grant relief pursuant to a Section 1983 suit for injunctive relief. It was true for Herman Atkins of Riverside, California who was released in February of 2000. It was true for Neil Miller of Boston who was released only because, after many years of trying through the courts, District Attorney Ralph Martin consented to DNA testing. It was true for A. B. Butler of Tyler, Texas who was pardoned two weeks ago by Governor Bush after 17 years in jail for a crime he did not commit. Butler attempted unsuccessfully pro se to get DNA testing through the courts for 7 years; he only got testing after the Centurion Ministries and attorney Randy Schaffer got involved and obtained consent to testing from a local district attorney.

Without adequate counsel, and without resources, it is simply unrealistic and unfair to create a new statute of limitations on post- conviction DNA testing. It should be enough for the inmate to show that a DNA test would provide non-cumulative, exculpatory evidence demonstrating that he was wrongfully convicted or sentenced.

3. There Should Be A Duty to Preserve Biological Evidence While an Inmate is Incarcerated.

In 75% of our Innocence Project cases, where we have already determined that a DNA test would demonstrate innocence if it were favorable to the inmate, the evidence is lost or destroyed. Calvin Johnson of Georgia was exonerated after 17 years in prison for a crime he didn't commit but only because, by sheer chance, a court clerk decided not to destroy, as a matter of bureaucratic routine, the rape kit that led to his freedom. The rules for the preservation of biological evidence are totally haphazard across the country. There should be a general requirement to preserve biological evidence and an opportunity for law enforcement, upon notice to an inmate, to move for destruction of the evidence in an orderly way. This would not only preserve the rights of inmates to produce proof of their innocence through DNA testing, but help law enforcement re-test old cases to catch the real perpetrators.

4. There Must Be More Funding to Provide Competent Counsel, Especially in Capital Cases.

Recent revelations reported by the Chicago Tribune about the lack of adequate counsel for inmates on Death Row in Illinois and Texas are troubling but not surprising. The American Bar Association has long been on record about this crisis, and in our book, Actual Innocence, we discuss at great length the terrible problem of incompetent counsel we found among the individuals exonerated with post-conviction DNA testing. DNA testing only helps correct conviction of the innocent in a narrow class of cases; most homicides do not involve biological evidence that can be determinative of guilt or innocence. Nothing guarantees the conviction of the innocent more than a bad or underfunded lawyer. We have to rely on the adversary system, and the key to that system is a defense lawyer who is qualified, has adequate funds for investigation and experts, and is compensated well enough to provide good representation. I strong support those sections of the Leahy - Smith bill that provide for standards and more funding for counsel.

5. Requirements About the Availability of DNA Technology Should Remain Flexible.

In the vast majority of post-conviction DNA exonerations some form of DNA testing was, in theory, available to the defendant at the time of trial. In some instances the form of DNA testing available was not sensitive enough to produce a result, but later testing was able to produce irrefutable evidence of innocence. For example, Kirk Bloodsworth of Maryland, who received a death sentence, had inconclusive DNA testing using RFLP (Restriction Fragment Length Polymorphism Testing) but was exonerated by PCR (Polymerase Chain Reaction) testing. Other times requests for available DNA testing were wrongfully denied by trial courts, or incompetent lawyers failed to request the testing. In other cases, early forms of DNA testing which were not very discriminating (e.g., the PCR DQ Alpha test) and failed to exclude a defendant at the time of trial but a more discriminating DNA test, developed years later, produced proof of innocence. The technology is always advancing and that is why it is wise to provide for the opportunity to prove innocence with new, more accurate DNA testing. Indeed, this is precisely the course Governor Bush adopted in the Randy McGinn reprieve decision. Mitochondrial DNA testing, one of the more sensitive tests that will be used in the McGinn case, can now get results by extracting DNA from the shaft of a hair; previously, one needed a hair with a fleshy root to get a result. This technological breakthrough is of critical importance because microscopic hair comparison -- a forensic test that is increasingly being exposed as junk science -- has contributed to the conviction of at least 18 men subsequently exonerated with DNA testing.

6. Post-Conviction DNA Exonerations Provide An Unprecedented Opportunity To Improve the Criminal Justice System.

Post-conviction DNA exonerations have a special value for improving the entire criminal justice system. Never before have so many people been exonerated so quickly without any debate about their actual innocence. The fact that DNA testing can so exonerate the wrongly convicted is hardly news; what is more important, however, is to figure out how the innocent got convicted in the first place. That is why Peter Neufeld, Jim Dwyer and I wrote Actual Innocence. We not only tell the stories of the innocent wrongly convicted but identify systematically the causes: Mistaken eyewitness identification, false confessions, fraudulent and junk forensic science, defense lawyers literally asleep in the courtroom, prosecutors and police who cross the line, jailhouse informants and the insidious problem of race. We present mainstream solutions to these problems that conservatives and liberals, Republicans and Democrats, prosecutors and defense lawyers can all support. Certainly one of the most critical reforms is the Innocence Protection legislation you consider today. I urge you to pass a bill this year before more evidence is destroyed or degrades and the slim hope innocent men have to achieve their freedom disappears.

Copyright 2000 LEXIS-NEXIS Group, Federal News Service, Inc. All rights reserved.

Barry Scheck's Oral Senate Judiciary Committee Testimony 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

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