SECTION: PREPARED TESTIMONY

LENGTH: 1788 words

HEADLINE: PREPARED STATEMENT OF SEN. ORRIN HATCH
 
BEFORE THE SENATE COMMITTEE ON THE JUDICIARY
 
SUBJECT -POST-CONVICTION DNA TESTING: WHEN IS JUSTICE SERVED?

BODY:
 Introduction

Good morning and welcome to the Senate Judiciary Committee's hearing on the important issue of post-conviction DNA testing entitled: "Post- Conviction DNA Testing: When is Justice Served?" No one here today will quarrel with the assertion that post-conviction DNA testing should be made available when it serves the ends of justice. Reaching agreement on a practical definition for justice, however, is a different matter. After all, justice means different things to different people. For the survivors of brutal crimes, justice may mean the carrying out of a court-imposed sentence without prolonged appeals. For others - especially those who morally and vehemently oppose capital punishment - justice may mean the indefinite delay of constitutionally imposed death sentences.

As Members of Congress, we do not have the luxury of choosing one side or the other. As the elected representatives of the people and as guardians of the Constitution, we have an obligation to balance the adequacy of procedural protections afforded to defendants against the need for the integrity and finality of decisions in state and federal courts. It is my hope that in holding this hearing, we can take a first step towards reaching consensus on how best to strike this balance in the area of post-conviction DNA testing and, in doing so, serve the cause of justice. Speaking of doing what is just, it is only right that, at the outset of this hearing, I thank Senator Leahy for his interest and leadership in this important topic. Those who know Sen. Leahy appreciate his knowledge of the law, his passion for the Constitution, and his willingness to take principled positions. He was among the first members of Congress to become involved in this issue, and he came to me several weeks ago and urged this Committee to undertake an examination of this issue. His bill, the "Innocence Protection Act" has appropriately sparked a discussion over several important issues associated with capital punishment. We should all be thankful for his initiative and leadership.

DNA Testing

In the last decade, DNA testing has evolved as the most reliable forensic technique for identifying criminals when biological evidence is recovered. While DNA testing is standard in pre-trial investigations today, the issue of post-conviction DNA testing has emerged in recent years as the technology for testing has improved. In the last month, two prominent Governors, George W. Bush of Texas and James Gilmore of Virginia, ordered DNA testing for defendants on death row. And while the exact number is subject to dispute, post-conviction DNA testing has exonerated prisoners who were convicted of crimes committed before DNA technology existed. In some of these cases, the post-conviction DNA testing that exonerated a wrongly convicted person provided evidence that led to the apprehension of the actual criminal.

Advanced DNA testing improves the just and fair implementation of the death penalty. While reasonable people can differ about capital punishment, it is indisputable that advanced DNA testing lends support and credibility to the accuracy and integrity of capital verdicts. In short, we are in a better position than ever before to ensure that only the guilty are executed. All Americans -- supporters and opponents of the death penalty alike -- should recognize that DNA testing provides a powerful safeguard in capital cases. We should be thankful for this amazing technological development.

I believe that post-conviction DNA testing should be allowed in any case in which the testing has the potential to exonerate the defendant of the crime.

To ensure that post-conviction DNA testing is available in appropriate cases, I along with 13 other Senators, plan to introduce the Criminal Justice Integrity and Law Enforcement Assistance Act. This legislation will authorize post-conviction testing in federal cases and encourage the States, through a new DNA grant program, to authorize post-conviction testing in state cases. In addition, this legislation will provide needed resources to help States analyze DNA evidence from crime scenes and convicted offenders and conduct post- conviction testing.

The legal problem of post-conviction testing is fairly straightforward. Under current federal and state law, it is difficult to obtain post-conviction DNA testing -- and new trials based on the results of such testing -- because of time limits on introducing newly discovered evidence. These time limits are based on the fact that evidence becomes less reliable due to the passage of time.

I believe that time limits on introducing newly discovered evidence should not bar post-conviction DNA testing in appropriate cases because DNA testing can produce accurate results on biological evidence that is more than a decade old. Under my legislation, these time limits will not prevent post-conviction DNA testing -- and motions for a new trial based on such testing -- in cases where testing has the potential to prove innocence.

Furthermore, once post-conviction DNA testing is performed, the results of such testing should be considered as newly discovered evidence under establish precedents and procedures. If post-conviction testing produces exculpatory evidence, the defendant should be allowed to move for a new trial, notwithstanding the time limits on such motions applicable to other forms of newly discovered evidence. Courts should weigh a motion for a new trial based on post-conviction DNA testing results under the established precedents for motions for a new trial based on newly discovered evidence. In short, there is no need to create an additional legal procedure to consider this evidence, provided the time limits are waived in this narrow context.

History of Death Penalty Litigation

In the last thirty years, America's criminal justice system has experienced the crippling impact of seemingly endless habeas corpus appeals and frivolous prison litigation. In recent years, Congress passed and President Clinton signed into law legislation to reform habeas corpus and prison litigation procedures. I am proud to have authored these landmark statutes. America is safer, and our criminal justice system is stronger, because of these reforms. I am convinced that a properly drafted post-conviction testing statute will provide testing in appropriate cases and will not undermine these recent reforms.

But for some critics of our criminal justice system, post-conviction DNA testing and the resulting exoneration of some wrongly convicted persons serves as a spyhole through which one can observe a "system of law that has become far too complacent about its fairness and accuracy." (Actual Innocence, by Barry Scheck, Peter Neufeld, and Jim Dwyer). We must remain vigilant in our efforts to insure integrity and fairness at all levels of the system. Yet, for some, DNA testing serves as the foot in the door through which more aggressive - and I believe unwarranted - reforms can follow, including: a moratorium on the death penalty; an effective repeal of the habeas death row appeals reform of 1996; onerous federal regulations for counsel in state capital cases; and more.

Opponents of the death penalty believe the death penalty is on the defensive.

They are promoting the tired arguments of the past and outdated and recycled studies in a coordinated effort to put capital punishment on trial. As Newsweek's Jonathan Alter recently opined is what the editors of the magazine called a Special Report, ". . . assembly-line executions are making even supporters of the death penalty increasingly uneasy." (Newsweek, June 12, 2000).

Assembly-line executions? What trumpery. According to the Death Penalty Information Center, there are more than 3,670 convicted killers on death row in America. Since enactment of the 1996 habeas death penalty appeals reform, 315 convicted murderers have been executed. Less than 10 percent of the people on death row have had their sentences carried out.

There will likely be fewer executions this year than last year. Indeed, there were fewer executions in 1998 than there were in 1997. (Death Penalty Information Center, June 12, 2000).

In the meantime, no one can point to a modern case where an innocent person has been executed.

Conclusion

I support capital punishment. But I believe it should be uses only when:

There is conclusive proof of guilt; The crime itself is so heinous or depraved that it warrants the ultimate sanction; and There is no credible and appreciable evidence of discrimination.

It is important to remember that 99.9 percent of capital cases are state crimes, not federal crimes. In our federal republic, the issue of the death penalty in state cases is properly considered and determined by state governments. No prosecutor, Attorney General or Governor wants to be responsible for the execution or imprisonment of an innocent person. We will hear testimony today about the steps our states are taking to address this issue.

As we hear the testimony, let's not forget the past. For decades, convicted prisoners - with the help of some of today's witnesses - abused the habeas corpus system in order to delay the imposition of just punishment. In my home state of Utah, for example, convicted murderer William Andrews delayed the imposition of a constitutionally imposed death sentence for more than 18 years. His guilt was never in question; he was not an innocent person seeking freedom from an unjust punishment. Rather, he committed a particularly heinous crime, a series of murders, and simply wanted to frustrate the demands of justice.

What were the goals of Andrews' lawyers? I submit that his lawyers - and many lawyers who have represented death row inmates - saw their mission as making death penalty litigation so costly and protracted a prospect for the States that it would be effectively abolished. These ardent opponents of the death penalty - whose principled views and legal skills I respect - used capital resource centers and our federal courts to effectively suspend the imposition of constitutionally and factually sound state death sentences. I am loathe to once again federally empower these artisans of manufactured delay.

Manufactured delays breed contempt for the law and have a profound effect of the victims of violent crime. For the families of murder victims, each delay exacerbates the pain of losing their loved one. They are reminded that their son, daughter, spouse, or parent will never come home again. No birthdays, no holidays to celebrate -- only the dreaded anniversary of a murder.

So as we debate the future of capital punishment, we should also remember the past.

END

LOAD-DATE: June 14, 2000