Innocence Protection Act of 2004
INNOCENCE PROTECTION ACT OF 2004
Mr. CORNYN. I thank the Senator. I do have a number of concerns about the Innocence Protection Act. Namely, I am concerned that under this bill, states effectively are required to adhere to a Federal regulatory system, answering to the Department of Justice, for defense and prosecution representation in State capital cases. However, I have been encouraged by recent modifications to the bill that lead me to believe a greater balance has been struck between ensuring strong capital representation systems and supporting the prosecution and sentencing of violent criminals. Senator Hatch, is it your belief that such a balance has been struck?
Mr. HATCH. That is my belief. And let me first say that I appreciate the concerns of the Senator from Texas as well as those of Senators KYL and SESSIONS, each of whom have worked very hard on this important issue. You bring to the debate a wealth of experience in this area, having served as Attorney General of your home State of Texas and as a Judge, and you have worked tirelessly on this, and I thank you for it.
The recent modifications to the bill are a great improvement. The bill is the result of the hard work and dedication of many on both sides of the aisle. Most importantly, we have significantly reworked this bill so as to address the legitimate concerns you, Senators KYL and SESSIONS as well as others have raised.
Specifically, we made some changes to the capital representation section of the Innocence Protection Act. We worked with the House to add language similar to language in the amendment that you offered in the Judiciary Committee language that would require that a large majority of the funding in this area to go to the trial level, rather than to the appellate or habeas litigation. This shift in funding allocation is a further safeguard against your concerns that funds might go to particular advocacy groups because they typically become involved in these cases at the appellate level.
Mr. CORNYN. On this issue-the issue of capital representation, I note that there is a provision in place negotiated by Majority Leader DELAY and other members of the Texas delegation in the House designed to protect the capital representation system that is in place in Texas? Do I understand that correctly?
Mr. HATCH. Yes. Section 421(d)(1)© was added specifically to ensure that Texas, or any other State with a similarly structured system, would qualify as an "effective system" under the statute. This provision has been referred to as the "Texas carve-out" throughout debate over this bill. It is appropriate in light of the changes Texas enacted in order to improve its capital-representation system just 3 years ago.
Mr. CORNYN. I thank the Senator. I share the perspective that Texas' system is preserved as a so-called "effective system" under the statute. And that is critically important. As you point out, in 2001, the Texas Legislature passed the Texas Fair Defense Act to overhaul Texas' indigent criminal defense system. The legislation passed ensures prompt appointment of an attorney for indigent criminal defendants, provides guidelines on method of appointment for counsel, establishes minimum standards for appointed attorneys in capital cases, and provides both State resources and oversight of county's indigent defense systems through a State Task Force on Indigent Defense. It is this system or any future version of it that specifically is intended to be protected by this language, is it not?
Mr. HATCH. That is absolutely my understanding.
Mr. CORNYN. So under the DeLay proviso, Texas will not have to change a thing in order to receive grants under this bill-it is automatically pre-qualified?
Mr. HATCH. Absolutely. In fact, it is my understanding that at least half a dozen other states also will automatically pre-qualify for funding under this proviso.
Mr. CORNYN. I thank the Senator. This so-called "Texas carve-out" is critical to my support for this bill. Without the carve-out, Texas and other States like it would not qualify for Federal grant funds, even though they already have an "effective system" for capital representation. And, without the carve-out, Texas and other States like it would have no incentive to apply for Federal grant funds because the Federal grant funds to be received would not exceed the State funds that would have to be spent to become eligible. On the other hand, because of the "carve-out," Texas and other States like it can keep appointment power with locally-elected judges, maintain their own innovations designed to improve-not make impossible-the effective representation of capital defendants, and avoid the need for the creation of a new, needlessly expensive, centralized bureaucracy often times controlled by those who oppose the death penalty such as was the case with the former capital defense Resource Centers that were disbanded by Congress in the 1990's.
Mr. HATCH. I would say that the "carve-out" is a compromise that is consistent with past Federal assistance to the States' criminal justice systems, and it sets appropriate limits on the level of Federal involvement in the administration of the death penalty at the state level.
Mr. CORNYN. Thank you for your work on this, Mr. Hatch, and for helping to ensure that my home State of Texas qualifies as having an "effective system for providing competent legal representation" under the legislation.
I have two other questions for you. In the new postconviction testing remedy created by this legislation for Federal prisoners-at what apparently will be section 3600(g) the bill allows the court to order a new trial if a DNA test result, in light of all of the other evidence, establishes, and I quote, "by compelling evidence that a new trial would result in an acquittal." As you recall, the standard for granting new trials in what can sometimes be old cases was much debated during the Judiciary Committee's consideration of this bill. The Committee almost voted in favor of changing this standard of proof from "would result in acquittal" to "did not commit the crime," and some discussed a middle option of raising the standard from preponderance of the evidence to "clear and convincing evidence." Ultimately, we chose to defer addressing this issue until negotiations on a final package with the House of Representatives. And in the end, we chose neither of the standards discussed, but instead opted for elevating the standard of proof to "compelling evidence."
We discussed at the time why "compelling" would be the best term of art for setting a standard for reopening litigation of an issue. In particular, we looked to two cases that tell us what "compelling" means in this context-cases that give us confidence that we have set a high bar that will not allow the probably guilty to receive a new trial-and go free if a new trial proves impossible-and also will not allow defendants to seek new trials on the basis of evidence that they could have presented all along. As the Chairman of the Committee that reported this bill and the Senate companion bill's lead sponsor, I think that you can speak with some authority on this matter, and clarify for the record the thinking that went into the House and Senate's selection of the word "compelling." Would you do so?
Mr. HATCH. I would be pleased to do so. In choosing the term "compelling," we relied on previous interpretation of that term in cases such as United States v. Walser, a 1993 case out of the Eleventh Circuit. That court analyzed a previous jury's decision-and whether it disadvantaged the defendant-under a standard of "compelling prejudice." The court there made clear that it could not find "compelling prejudice" if "under all the circumstances of [the] particular case it is within the capacity of jurors" to reach the proper result-in the case of this bill, to find that the defendant committed the crime. If, in light of the DNA test, it would not be within the capacity of jurors to conclude that the defendant is guilty, a new trial must be granted under 3600(g). But if they could possibly find guilty, no new trial is allowed. As the Eleventh Circuit explained, under the "compelling" standard, if a decision is "within the jury's capacity"-if it is reasonably possible-then "though the task be difficult [for the hypothetical jury], there is no compelling prejudice"-or in our case, no compelling evidence requiring a new trial.
As the Walser case also explains, you look to the trial transcript to decide what constitutes "compelling" evidence.
Obviously, it is the defendant's burden to produce this evidence by other means if there is no trial transcript. If the defendant pleaded guilty, and received the inevitable benefits that come with a plea agreement, he cannot later turn the lack of a record against the State. It remains the defendant's burden of both persuasion and production to show that it would not have been possible for the jury to have concluded that he is guilty. This is again implicit in the adoption of the term of art "compelling"-as Walser elaborates, under the "compelling" standard, "absent evidence to the contrary, we presume that the jury" could properly reach the result that it did.
The other case to which I believe that you referred is the Seventh Circuit's 1979 decision in NLRB v. Austin Development Center, which makes clear that previously available evidence is not "compelling" evidence. The relevant passage from that case for our purposes was that only "[t]he discovery of new evidence is a compelling circumstance justifying relitigation. The proffer of evidence not presented earlier, however, will not justify relitigation where it is not shown that the evidence was unavailable at the time of the prior proceeding." In other words, for our purposes, if the DNA evidence that a prisoner relies on is something that would have been available to him earlier, it does not qualify as "compelling" evidence justifying a new trial. If he failed to seek a test when he could have, he cannot later use that test result to argue for a new trial, once witnesses have died or become unavailable or had their memories fade, and other evidence has deteriorated and disappeared.
To allow a new trial under these circumstances would be fundamentally unfair to society and its interest in the finality of criminal judgments. As some of my colleagues have noted, Federal Rule of Criminal Procedure specifically limits its liberal new-trial rule to new evidence discovered within 3 years. Implicit in that limit is the judgment that the same evidence cannot carry the same weight in a new trial motion if it is brought at a later time. By adopting the "compelling" standard in this bill, we make that same judgement, and we protect these same societal interests.
I hope that this conforms to your previous understanding of this provision and clarifies matters for the record, Senator. We have chosen a tough standard here-in fact, I believe tougher than all those that we have discussed previously. This is not a standard that will grant new trials to people who probably did it-and then allow them to walk free when prosecutors are unable to try them after the passage of time. I hope that you can have confidence in that, Senator.
Mr. CORNYN. It does conform to my previous understanding and I do have confidence in it, Senator. Thank you. I regret taking up the Senate's time on this busy day, but I do have one other question, and this pertains to the bill's changes to CODIS and NDIS, the DNA index systems. It is my understanding that this bill places no limits on what States can upload into CODIS-that is, into their own databases.
Mr. HATCH. That is correct.
Mr. CORNYN. I also would like to clarify which profiles states are required to have expunged from NDIS-the national-exchange database-as a condition of access. The bill allows States to upload anything that is collected "under applicable legal authorities"-that is, that States or local governments collect under their own laws or policies. An exception is made, however, for two categories-unindicted arrestees and elimination-only samples. Then later, the bill provides that States must seek expungement of samples if, and I quote, "the person has not been convicted of an offense of the basis of which that analysis was or could have been included in the index, and all charges for which the analysis was or could have been included in the index have been dismissed or resulted in acquittal."
It is my understanding that, just as what will now be U.S. Code subsection (d)(2)(A)(i) requires that a person's analysis be expunged if it was originally uploaded on the basis of a criminal conviction and that conviction is overturned, this new subsection (ii) will require the analysis of the acquitted arrestee (or one for whom charges have been dismissed) to be expunged-but only if the analysis originally was or could have been included because he was an arrestee.
Mr. HATCH. That is correct. The new limitation that you noted-the new subsection 14132(d)(2)(A)(ii) corresponds to the limited "unindicted arrestee" category in the new (a)(1)(C). It does not apply to DNA analyses uploaded under other "applicable legal authorities." Our intent was to provide States with maximum flexibility in exchanging DNA profile information through NDIS. The only exception that we made in this bill was for arrestees, who had DNA samples taken from them involuntarily, and who, because of those circumstances, we give the right to have those samples withdrawn from NDIS.
Mr. CORNYN. As you know, I am a strong believer in the power of DNA to solve crimes. I want to see the United States develop as broad and as powerful a DNA database as possible. The States have a strong interest in solving past crimes. I also believe that there is no reason to exclude DNA from CODIS simply because charges against an arrestee are dismissed or he is acquitted-fingerprints are kept in such cases, and there is no reason to treat DNA differently than fingerprints. The bill bars States from keeping an arrestee's DNA sample if charges are dropped or he is acquitted. There is no reason to do so. Experience shows that felony arrestees-even those who are not ultimately convicted-are a good population from which to predict other crimes. Excluding unindicted arrestees will simply prevent States from solving more crimes. I understand that legislative compromise has forced us to exclude arrestees-even those indicted-if charges against them are dropped. I am glad to see that your understanding of the States's otherwise broad authority conforms to my own understanding-that outside of the arrestee-sample context, States may still upload and exchange any DNA collected under State and local laws, policies, and practices on the NDIS database.
In expressing this view, I would like to emphasize that keeping DNA samples in CODIS and NDIS does not affect privacy-the analysis used has no medical predictive value. The analysis of DNA that is kept in CODIS is what is called "junk DNA"-it is impossible to determine anything medically sensitive from this DNA. For example, this DNA will not allow a tester to determine if the donor is susceptible to particular diseases. As the Justice Department noted in its official Views Letter on the predecessor to this bill, and I quote at length:
[T]here [are no] legitimate privacy concerns that require the retention or expansion of these [H.R. 3214] expungement provisions. The DNA identification system is already subject to strict privacy rules, which generally limit the use of DNA samples and DNA profiles in the system to law enforcement identification purposes. See 42 U.S.C. 14132(b)-(c).
Moreover, the DNA profiles that are maintained in the national index relate to 13 DNA sites that do not control any traits or characteristics of individuals. Hence, the databased information cannot be used to discern, for example, anything about an individual's genetic illnesses, disorders, or dispositions. Rather, by design, the information the system retains in the databased DNA profiles is the equivalent of a "genetic fingerprint" that uniquely identifies an individual, but does not disclose other facts about him.
To those still concerned about some kind of civil liberties violation inherent in maintaining a DNA database, I would ask, what about Medicare and Medicaid?-they keep lots of medically sensitive information. Why should we trust those agencies, but not the FBI? Misuse of the information in CODIS and NDIS-if even possible-is prohibited by law. The Medicare and Medicaid system keep vast stores of medically sensitive information about people. If we are so afraid of CODIS and NDIS, what about Medicare?
And again-fingerprints are kept for all arrestees-should we now expunge those too? The FBI maintains a database of fingerprints of arrestees-without regard to whether the arrestee is later acquitted or convicted. As Justice notes in its Views
Letter on this bill, "With respect to the proposed exclusion of DNA profiles of unindicted arrestees, it should be noted by way of comparison that there is no Federal policy that bars States from including fingerprints of arrestees in State and Federal law enforcement databases prior to indictment." Since database DNA is no more sensitive than fingerprints, and we would expunge DNA under S. 1700, should we also start throwing out fingerprints?
I would also note that keeping as broad a database as possible will stop many violent predators much earlier. As the Justice Department also noted in its Views Letter, "There is no reason to have a . . . Federal policy mandating expungement for DNA information. If the person whose DNA it is does not commit other crimes, then the information simply remains in a secure database and there is no adverse effect on his life. But if he commits a murder, rape, or other serious crime, and DNA matching can identify him as the perpetrator, then it is good that the information was retained."
Finally, on this point, I would like to highlight the British example: The British tried expunging arrestees' DNA and found that they ended up with embarrassing "improper" matches from perpetrators who weren't supposed to get caught. Now they take DNA from all suspects (not just arrestees) and have a 2,000,000 profile database. As a result, the British now get DNA matches from crimes scenes in 40 percent of all cases, and had 58,176 "cold hits" from crime scenes in 2001-02.
According to a recent National Institutes of Justice-commissioned study titled "The Application of DNA Technology in England and Wales," the U.K. tried expunging DNA profiles for arrestees who are not ultimately convicted and quickly realized that this was a mistake. According to the report:
While [a 1994 law] called for the expungement of profiles of individuals who were not ultimately convicted, periodic problems with the database administration ultimately led to a number of cases in which suspects were identified by samples which were retained in the system but should have been removed. This lead to a number of court cases and a decision from the House of Lords addressing the legality of such convictions.
To address these public policy and legal issues, the House of Lords passed [a 2001 law] which . . . provides for the indefinite retention of DNA profiles on the [British database] even if suspects are not convicted." . . . [The new law] allows for the collection and retention of biological samples and DNA profiles for anyone who becomes a suspect during the course of a police investigation.
As a result of these changes, the British now have 2,000,000 DNA profiles in their national database, they now get matches from 40 percent of all crime scenes with DNA, and they had 58,176 "cold hits" from crime scenes in 2001. Why wouldn't we want the same for our country?
Another NIJ-commission study, produced by Washington State University and titled the "National Forensic DNA Study Report," notes that "the DNA database must have a strong pool of offenders for comparison. . . . the DNA database is a two-index system-a crime scene sample index, and an offender index. The effectiveness of either index is necessarily restricted by any limitation on the other index." From the British experience, we know that a broad database is highly effective. It is time to replicate that experience here, before more preventable crimes are committed. I am glad that we have moved far in that direction-toward the British model-though we still have maintained the unfortunate anachronism of requiring arrestees' analyses to be expunged if charges against them are dropped.