[House Hearing, 110 Congress]
[From the U.S. Government Printing Office]


 
 REAUTHORIZATION AND IMPROVEMENT OF DNA INITIATIVES OF THE JUSTICE FOR 
                            ALL ACT OF 2004

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 10, 2008

                               __________

                           Serial No. 110-145

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov

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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MAXINE WATERS, California            DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts   CHRIS CANNON, Utah
ROBERT WEXLER, Florida               RIC KELLER, Florida
LINDA T. SANCHEZ, California         DARRELL ISSA, California
STEVE COHEN, Tennessee               MIKE PENCE, Indiana
HANK JOHNSON, Georgia                J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio                   STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota

            Perry Apelbaum, Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

             ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman

MAXINE WATERS, California            LOUIE GOHMERT, Texas
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
JERROLD NADLER, New York             F. JAMES SENSENBRENNER, Jr., 
HANK JOHNSON, Georgia                Wisconsin
ANTHONY D. WEINER, New York          HOWARD COBLE, North Carolina
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
ARTUR DAVIS, Alabama                 DANIEL E. LUNGREN, California
TAMMY BALDWIN, Wisconsin
BETTY SUTTON, Ohio

                      Bobby Vassar, Chief Counsel

                    Caroline Lynch, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             APRIL 10, 2008

                                                                   Page

                           OPENING STATEMENTS

The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Chairman, Subcommittee 
  on Crime, Terrorism, and Homeland Security.....................     1
The Honorable Louie Gohmert, a Representative in Congress from 
  the State of Texas, and Ranking Member, Subcommittee on Crime, 
  Terrorism, and Homeland Security...............................     3
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Chairman, Committee on the 
  Judiciary......................................................     4
The Honorable F. James Sensenbrenner, Jr., a Representative in 
  Congress from the State of Wisconsin, and Member, Subcommittee 
  on Crime, Terrorism, and Homeland Security.....................     5
The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Ranking Member, Committee on the Judiciary.     5

                               WITNESSES

The Honorable Carolyn Maloney, a Representative in Congress from 
  the State of New York
  Oral Testimony.................................................     7
  Prepared Statement.............................................     9
The Honorable David G. Reichert, a Representative in Congress 
  from the State of Washington
  Oral Testimony.................................................    10
  Prepared Statement.............................................    12
Ms. Debbie Smith, Charles City, VA
  Oral Testimony.................................................    14
  Prepared Statement.............................................    16
Mr. David W. Hagy, Director, National Institute of Justice, 
  Office of Justice Programs, U.S. Department of Justice, 
  Washington, DC
  Oral Testimony.................................................    18
  Prepared Statement.............................................    20
Mr. Peter M. Marone, Director, Virginia Department of Forensic 
  Science, Richmond, VA
  Oral Testimony.................................................    28
  Prepared Statement.............................................    30
Mr. Levon Brooks, wrongfully convicted of murder and exonerated 
  through DNA evidence
  Oral Testimony.................................................    42
Mr. Peter Neufeld, Co-Founder and Co-Director, Innocence Project, 
  New York, NY
  Oral Testimony.................................................    42
  Prepared Statement.............................................    45

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of Angelo Della Manna, Chief of Forensic 
  Biology & DNA, Alabama Department of Forensic Sciences, 
  Birmingham, AL, submitted by the Honorable Artur Davis, a 
  Representative in Congress from the State of Alabama, and 
  Member, Subcommittee on Crime, Terrorism, and Homeland Security   107
Birmingham News article entitled ``DNA Testing for Arthur,'' 
  submitted by the Honorable Artur Davis, a Representative in 
  Congress from the State of Alabama, and Member, Subcommittee on 
  Crime, Terrorism, and Homeland Security........................   125

                                APPENDIX

Material Submitted for the Hearing Record........................   143


 REAUTHORIZATION AND IMPROVEMENT OF DNA INITIATIVES OF THE JUSTICE FOR 
                            ALL ACT OF 2004

                              ----------                              


                        THURSDAY, APRIL 10, 2008

              House of Representatives,    
              Subcommittee on Crime, Terrorism,    
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 10:07 a.m., in 
room 2141, Rayburn House Office Building, the Honorable Robert 
C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
    Present: Representatives Conyers, Scott, Waters, Delahunt, 
Nadler, Johnson, Weiner, Jackson Lee, Davis, Baldwin, Sutton, 
Smith, Gohmert, Forbes, Sensenbrenner, Coble, Chabot, and 
Lungren.
    Staff present: Mario Dispenza, Majority Fellow/Counsel; 
Karen Wilkinson, Majority Fellow/Counsel; Veronica Eligan, 
Majority Professional Staff Member; Caroline Lynch, Minority 
Counsel; Kimani Little, Minority Counsel; and Kelsey Whitlock, 
Minority Staff Assistant.
    Mr. Scott. The Subcommittee will now come to order, and I 
am pleased to welcome you to the hearing before the 
Subcommittee on Crime, Terrorism, and Homeland Security on the 
Reauthorization and Improvement of DNA Initiatives of the 
Justice For All Act of 2004.
    Today we will hear testimony about H.R. 5057, the ``Debbie 
Smith Reauthorization Act of 2008,'' which is sponsored by the 
gentlelady from New York, Mrs. Maloney.
    We will also hear testimony about issues surrounding the 
Innocence Protection Act--specifically, the hurdles that have 
impeded its implementation, the consequences of those hurdles 
and how to overcome them.
    The Debbie Smith Act authorizes the Attorney General to 
provide grants to States to assist them in entering DNA 
evidence into databases.
    As the Nation's police departments and prosecutors have 
come to recognize the value to DNA evidence in solving crimes, 
labs have collected DNA samples from increasing numbers of 
crime scenes and convicted offenders faster than they can 
examine and enter them into State and local databases.
    In fact, Congress has funded State and local law 
enforcement agencies to test nearly 104,000 DNA cases from 2004 
to 2007 and funded over 2.5 million convicted offender and 
arrestee samples.
    Yet the backlog remains almost level. Consequently, a large 
backlog of samples exists around the Nation that could identify 
valid criminals at large.
    There are no better examples of how to demonstrate how 
important DNA technology can be for solving crimes than the 
stories that two witnesses will share with us today.
    Before service in Congress, the gentleman from Washington, 
David Reichert, was sheriff of King County, Washington 
sheriff's office where, through help of DNA technology, he 
helped solve the largest serial murder case in U.S. history, 
the Green River killer investigation.
    And in 1989, Debbie Smith was kidnaped in her Virginia home 
and viciously attacked in nearby woods by a stranger. With 
remarkable courage and determination, she reported her attack.
    The crime lab was able to preserve DNA evidence of her 
attacker. Eventually he was convicted of a separate violent 
crime and was required to provide a DNA sample which matched 
the sample collected from his attack on Ms. Smith, identifying 
him as the attacker.
    The goal of the Debbie Smith DNA backlog grant program is 
to assist States in entering their DNA evidence timely so that 
they can solve more crimes and solve them as soon as possible.
    The act was incorporated into the Justice for All Act of 
2004, and that expires at the end of 2009. H.R. 5057 has strong 
bipartisan support and would authorize funding for the Debbie 
Smith Act, extending it through fiscal 2014.
    The Innocence Protection Act authorizes the Attorney 
General to grant funding to States for post-conviction DNA 
testing to help ascertain whether individuals have been wrongly 
convicted.
    To date, there have been 215 post-conviction exonerations 
through DNA testing in the United States, spanning 32 States. 
Sixteen of the 215 exonerees were on death row, and the true 
suspects or perpetrators have been identified in 82 of the DNA 
exoneration cases.
    The most recent exoneree is Levon Brooks, who is here with 
us today. He spent 18 years in prison, wrongfully convicted of 
the murder of a child, until DNA evidence led to the discovery 
of the actual murderer.
    The success of post-conviction DNA is evident by the 
exonerations it has yielded and its potential to exonerate 
hundreds more of the wrongly convicted.
    Unfortunately, post-conviction DNA testing has been 
seriously under utilized due to unrealistic and unattainable 
standards for grant applications. Congress funded a total of $7 
million for Innocence Protection Act grants from 2005 to 2007, 
but none of the funds were ever used for actual grants.
    According to the Department of Justice Office of Justice 
Programs, statutory language of the act set standards for 
authorizing the grants too high for any State to meet.
    Concerns have also been raised that the standard may have 
discouraged applicants from applying as there have been 
actually only three grant applications--Virginia, Connecticut 
and Arizona.
    Consequently, $7 million that might have been used to free 
innocent people from prison have sat idle. This is 
unconscionable and we must correct it.
    For fiscal year 2008, Congress appropriated an additional 
$4.8 million and inserted a temporary change in statutory 
language that OJP suggested so that applicant States may be 
able to meet the requirements for grants under the Innocence 
Protection Act.
    Thus, there are now $11.8 million available, and new 
language to facilitate granting post-conviction DNA testing 
funds. There are also five new applicants for these grants, and 
we are looking forward to hearing testimony about these 
applications and their chance for success under the new 
standard.
    I also look forward to working with my colleague to 
determine whether the temporary language established for 2008 
should be made permanent or whether we should make some other 
correction in the law.
    DNA technology has given us the means to identify the 
wrongly imprisoned. Now we have the responsibility to use those 
means.
    The Debbie Smith Act and the Innocence Protection Act 
complement each other in that they use DNA technology to meet 
the shared goal of identifying those responsible for committing 
crimes.
    DNA evidence is, indeed, an invaluable tool for ensuring 
that the guilty are identified beyond any doubt. However, like 
any tool, it is only useful as to the extent that it is 
employed, and we must do everything we can to ensure the 
availability of funding set aside to determine the guilt or 
innocence and make sure it is used to its fullest extent.
    It is now my pleasure to recognize the Ranking Member of 
the Subcommittee, the gentleman from Texas, Judge Gohmert.
    Mr. Gohmert. Thank you, Chairman Scott. And I do appreciate 
you holding this hearing on this reauthorization of the Debbie 
Smith DNA Backlog Grant Program and improvements to the Kirk 
Bloodsworth Post-Conviction DNA Testing Program.
    I do want to welcome our distinguished witnesses and extend 
a special thank you to Congresswoman Maloney and Congressman 
Reichert.
    And the incredible work that Congressman Reichert did in 
the Green River killer case has also been made the subject of a 
fantastic miniseries that I watched last weekend.
    Anyway, maybe you would have done a better job, I am sure, 
in representing yourself, but it was quite a good miniseries.
    But to the subject of what we have before us, March 11, 
2003, President Bush announced his DNA Initiative to provide 
funds, training, assistance to ensure that DNA technology 
reaches its full potential to solve crimes, protect the 
innocent and identify missing persons.
    The DNA Initiative awards grants to address several DNA 
backlog issues, including capacity enhancement, convicted 
offender DNA backlog issues, including capacity enhancement, 
convicted offender DNA backlog reduction, forensic casework DNA 
backlog reduction, and solving cold cases with DNA.
    As a former prosecutor and judge, I know the value of the 
DNA evidence and how it serves in convicting violent criminals 
and providing some closure to victims, but also ensuring that 
those who are sent to prison are actually guilty of the crime.
    The Debbie Smith and Kirk Bloodsworth programs help ensure 
that these goals of the criminal justice system are met.
    I also saw the tremendous backlogs, the delay in justice 
from programs that were not fully equipped to address the DNA 
backlogs and the problems that created for State and local 
justice.
    But we have all heard the adage that it is better to let 10 
guilty people go free than to send one innocent person to 
prison.
    Well, DNA evidence provides a level of certainty in 
criminal prosecutions that I hope would lessen or even 
eliminate the likelihood that innocent people are convicted for 
a crime they did not commit.
    By now, we are familiar with the story of Kirk Bloodsworth 
that the Chairman has mentioned. It is also appropriate to 
mention Mr. Levon Brooks that the Chairman also mentioned, and 
we are delighted that he is here today to share his story and 
the horrible ordeal that he witnessed personally.
    It is appropriate this program providing grants to States 
for post-conviction DNA testing is named for Mr. Bloodsworth. 
Since 1989, 215 wrongfully convicted individuals have been 
exonerated through the testing.
    The Kirk Bloodsworth DNA post-conviction DNA testing 
program was authorized by the Justice for All Act of 2004, but 
in order to receive a grant under this program, the State must 
demonstrate that all jurisdictions within the State comply in 
practice with the requirements of the Bloodsworth provisions.
    This is true even if only one jurisdiction within the State 
processes post-conviction DNA tests. This requirement 
apparently has been so restrictive that only three States 
submitted applications for the Bloodsworth grants in 2007, and 
none were approved.
    To address the problem, Congress included language in the 
fiscal year 2008 Appropriation Act to lessen the grant 
requirements on applicant States.
    Surprisingly, despite these less burdensome grant 
requirements, only five States submitted applications for post-
conviction grants in 2008, and these five States requested only 
about $8 million of the roughly $11 million available.
    And I know that there are more States that could use this 
help. I am interested to learn why so few States are seeking 
Federal grant assistance for post-conviction DNA testing, 
whether they are aware of the grant program, whether they are 
aware of the improvement to the grant language, whether they 
believe that for some reason they are still ineligible, or is 
it that they don't need Federal grant money for post-conviction 
DNA testing and, if so, why or why not?
    I hope the Department of Justice can shed some light on 
these issues, and I look forward to hearing from our esteemed 
witnesses today and yield back the balance of my time.
    Mr. Scott. Thank you.
    Does the gentleman from Michigan have a statement? The 
gentleman from Michigan has 5 minutes.
    Mr. Conyers. Thank you, Chairman Scott and Judge Gohmert.
    I will put my statement in the record and merely say this. 
Because of the increasingly bipartisan nature of the Judiciary 
Committee, we are very pleased to work more closely with the 
Department of Justice.
    And I want David Hagy from the Department of Justice to 
know that we are all going to be continuing our good 
relationships, but you guys better get cracking on this subject 
matter here today.
    And I guess I don't sound like I am kidding, and I am not, 
so my statement, you know, reiterates all of this.
    I always have to notice that I only wish Carolyn Maloney--I 
think she wanted to go to law school as a kid, because she 
keeps coming before this Committee all the time. I think maybe 
it is DNA or genetic, I don't know.
    And we are certainly glad to see Congressman Reichert here.
    I am also happy to see Debbie Smith joining us here. This 
is a historic moment for our Committee. Levon Brooks is here. 
And so I am happy to join in this evaluation and continue our 
improving relationships with the leadership at the Department 
of Justice.
    I thank you so much.
    Mr. Sensenbrenner. Mr. Chairman?
    Mr. Scott. Thank you. I thank the----
    Mr. Conyers. Yes?
    Mr. Sensenbrenner. Mr. Chairman, if I can say a couple of 
words at the beginning of this hearing----
    Mr. Scott. Does the gentleman from Michigan yield to the 
gentleman from Wisconsin?
    Mr. Conyers. Yes, of course.
    Mr. Sensenbrenner. Mr. Chairman, I thank the Chairman of 
the Committee for yielding.
    I was the author of the Justice for All Act in 2004, and 
that act was an elaborately crafted conglomeration of bills 
that was designed to get the support of both houses, but 
particularly the other body, in order to get a number of very 
important initiatives passed.
    And one of the linchpins of getting this passed was the DNA 
provision in the bill, and the Justice Department at the time 
didn't like it.
    And basically, what the current Chairman and I as the 
Chairman at the time had to do was to go over to the Senate and 
basically give them some provisions on victims' protections 
which the Justice Department did like.
    And I guess it is disappointing to me that after we had 
reached this compromise that passed both houses overwhelmingly 
the Justice Department has not been vigorously implementing the 
DNA part, and it has been almost 4 years since the President 
signed the legislation into law.
    It was a good deal then. It is a good deal now. And foot-
dragging by anybody, but particularly the Department of 
Justice, means that a good deal ends up being an incomplete 
deal. I hope it is complete.
    And I thank the Chairman for yielding.
    Mr. Scott. Thank you.
    The time of the Chairman has expired.
    The gentleman from Texas, Ranking Member of the full 
Committee?
    Mr. Smith. Thank you, Mr. Chairman.
    I think I may have broken my microphone here. I am not 
sure.
    Mr. Chairman, thank you for holding this hearing on the 
reauthorization of the Debbie Smith DNA Backlog Grant Program 
and improvements to the Kirk Bloodsworth post-conviction DNA 
testing program.
    And I want to thank, of course, Congresswoman Maloney and 
Congressman Reichert for being here as well.
    Congressman Reichert knows firsthand the value of DNA 
evidence in solving violent crime. Before he was elected to 
Congress, Dave Reichert, sheriff of King County, Washington 
State spent 20 long years hunting down the notorious Green 
River killer. By the way, I did not know about the miniseries 
that Louie Gohmert mentioned.
    Gary L. Ridgway pleaded guilty in 2003 to killing 48 women, 
and it was advances in forensics and DNA evidence that 
ultimately helped Sheriff Reichert solve this case.
    Carolyn Maloney has been a champion of reducing the DNA 
backlog for many years, and I am pleased to be an original co-
sponsor of her bill, H.R. 5057, to reauthorize the Debbie Smith 
DNA Backlog Program.
    And like the Chairman a minute ago, I would like to thank 
Debbie Smith for appearing here as well. Her willingness to 
share her courageous story gives hope to other victims of rape 
and sexual assault that they will see their attackers 
apprehended and brought to justice.
    The Debbie Smith program, originally authorized in 2000, 
was expanded by the Justice for All Act of 2004 that former 
Chairman Sensenbrenner mentioned a minute ago. The program 
awards grants to State and local governments to reduce the DNA 
backlog of samples collected from crime scenes and the backlog 
for entry into the National DNA Database.
    The program also assists State and local governments with 
increasing the capacity of their forensic labs and collecting 
DNA samples from arrestees and convicted offenders.
    These grants and other parts of the President's DNA 
Initiative are working to reduce the DNA backlog, solve violent 
crimes and put offenders in prison.
    Through DNA backlog reduction grants, State and local 
governments received funding to test approximately 104,000 DNA 
cases between 2004 and 2007. These grants have also funded the 
collection of 2.5 million DNA samples from convicted offenders 
and arrestees for inclusion in the National DNA Database.
    The Department of Justice estimates that over 5,000 hits or 
matches are the result of this DNA backlog reduction. But it is 
clear that there is more work to do. Technology is always 
advancing, and so, too, is the use of DNA to solve crime.
    As DNA use expands, so does DNA collection and the need for 
larger laboratories and increased storage capacity. We must 
continue our efforts to reduce the DNA backlog. It is necessary 
in order to bring offenders to justice and provide some solace 
to the victims themselves.
    I look forward to hearing from our witnesses today.
    And, Mr. Chairman, I will yield back the balance of my 
time.
    Mr. Scott. Thank you very much.
    Other statements can be submitted for the record.
    We have two panels. Our first panel, the first witness will 
be the gentlelady from New York, Congresswoman Carolyn Maloney, 
who is a sponsor of H.R. 5057. I think I may have called it 56 
at one time--5057.
    She has been a Member of Congress since 1993 and was a 
driving force behind the Debbie Smith Act on numerous occasions 
in Congress before it was finally incorporated in the Justice 
for All Act in 2004.
    The reason she is before us, Mr. Chairman, so often is she 
is a strong advocate for the protection of women in the 
criminal justice system, not only on this bill but many others. 
She has a bachelor's degree in education from Greensboro 
College.
    And so thank you for being with us today.
    Our second witness will be the gentleman from Washington, 
Congressman David Reichert, who currently is in his second term 
in Congress. In addition to his notable work on the Green River 
task force, he has over 35 years of public service to the 
people of Washington. He has a bachelor's degree from Concordia 
Lutheran College.
    Both of the witnesses are familiar with the lighting 
system, so we would ask you to summarize your statements. The 
written statements will be entered into the record in their 
entirety.
    So, Mrs. Maloney?

TESTIMONY OF THE HONORABLE CAROLYN MALONEY, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF NEW YORK

    Mrs. Maloney. Thank you so much, Chairman Scott, and thank 
you for your leadership on the Debbie Smith Act and so many 
other issues, and Ranking Member Gohmert and our distinguished 
Chair of the Committee, John Conyers, for his leadership on 
this and so many other areas, and Mr. Lamar Smith, who is the 
lead sponsor--one of the lead sponsors, along with many people 
on this panel of the reauthorization of Debbie Smith.
    I must mention Mr. Sensenbrenner's and Mark Green's hard 
work on it, as well as Anthony Weiner and Mr. Nadler and many 
others.
    I have been working on this since 2001 when I initiated a 
hearing before the Government Reform Committee, a Committee Mr. 
Conyers used to Chair, on the use of DNA to convict and to 
exonerate.
    We reached out to a program called RAINN to find a rape 
survivor to testify. No one would testify, understandably. It 
is a traumatic experience. Yet Debbie Smith came forward, and 
she told her story.
    And believe me, after that hearing, there wasn't a dry eye 
on the panel--and Congress Members are very strong people--
because her story was so terrifying and one that we could all 
identify with.
    Living in a suburban, quiet neighborhood, an intruder broke 
in while her husband was asleep upstairs--a police officer--
dragged her into the woods, raped her and said, ``I will come 
back and kill you if you tell anyone.''
    So for 6 years, she lived in utter fear that the intruder 
would come back, until finally through DNA processing a match 
was made, a cold hit, and her rapist was put in jail.
    We put in a bill afterwards with the help of practically 
everyone on this panel that provided funding for the backlog. 
We found out there were roughly 500,000 rape kits sitting in 
police departments across the country that had not been 
processed, yet each rape kit represented a life such as 
Debbie's that was living in fear.
    And the FBI told us that most rapists are very sick people. 
They will attack seven, eight, nine times. They continue to 
attack. So if you can make that conviction, you are saving the 
lives of seven, eight, numerous other women from the horror of 
what Debbie had to live through.
    The FBI has told me that the second most horrendous crime 
in terms of destroying a life and recovering is rape, preceded 
only by murder. So this is a very, very serious issue.
    It took us 4 years to pass this bill. And it was done with 
the great help and support of Debbie and her husband, Rob, who 
continue their work in helping rape survivors. They have 
started a foundation to really help with this effort.
    Our bill that went forward with the Justice for All Act not 
only provided money for the backlog but provided money for S.A. 
nurses. There was documentation that with professional nurses, 
the police said they could make the conviction with the DNA. 
That was very important.
    It included John Doe convictions so that rapists could be 
caught at a time in the future and still be convicted, and 
helped support the FBI's DNA research lab which shares DNA 
information across the States, since rapists don't know 
boundaries. They go from State to State.
    And it has served as an invaluable tool. Many organizations 
of rape victims have told me that through this program they 
have finally found peace because their rapists have been 
caught. And it has been a wonderful tool for law enforcement to 
use.
    Not only does it help convict, but through the Justice for 
All Act and the work of Mr. Delahunt and many others, and Mr. 
Conyers, it has been used to exonerate the innocent, those on 
death row. Now they must go through a DNA test, and many people 
have been exonerated when they find out that this is not the 
person.
    Debbie's story was so moving that it was made into a movie, 
literally, by Lifetime Television called ``A Life 
Interrupted,'' and they are making another movie based on the 
continuing effort with the Justice Department, with Members of 
Congress, with the police and all of the D.A.s and everyone who 
is working to really cure the backlog.
    Because this ground-breaking program's authorization 
expires at the end of 2009, we have reintroduced the 
reauthorization which will extend the program to 2014, and I am 
very pleased that Congressmen Conyers and Smith and others have 
joined us, and certainly, Mr. Reichert and others, with the 
reauthorization.
    Estimates place the number of unprocessed rape kits 
nationwide in the tens--and possibly hundreds of thousands. 
Each kit represents an innocent life and a rapist who may 
commit multiple rapes before he is caught.
    DNA is remarkable evidence. It can't be intimidated. It 
never forgets. It is really our best tool for a conviction. And 
DNA never changes its story.
    Debbie's bravery and dedication in working with me and 
others, which was no small feat, has already made a tremendous 
impact on our justice system, and I do want to compliment very 
much the efforts, continuing efforts, of Lifetime Television 
and RAINN as well as other dedicated groups to ending the 
violence against women.
    April is Sexual Assault Awareness and Prevention Month. 
Tragically, only 6 percent of rapists will spend any time in 
jail, and Congress must continue to support programs like the 
Debbie Smith DNA Backlog Grant Program that helps to put 
rapists in prison and reduce violence against women.
    I want to thank this Subcommittee and particularly Bobby 
Scott for his leadership on this action for many, many years, 
as well as many other issues we have been working on together 
along with Chairman Conyers.
    And I look forward to working with you and supporting your 
efforts and the reauthorization of the Debbie Smith Act. Thank 
you for this great honor of appearing before this Committee.
    I believe I am before this Committee so much, Mr. Conyers, 
because you really touch on so many important issues in our 
country. It is an incredibly important Committee.
    Thank you for offering me the honor to appear before you 
today. Thank you.
    [The prepared statement of Mrs. Maloney follows:]

       Prepared Statement of the Honorable Carolyn B. Maloney, a 
         Representative in Congress from the State of New York

    Thank you Chairman Scott and Ranking Member Gohmert for holding 
today's hearing about DNA technology, which can help convict the guilty 
and free the innocent.
    I have been working on this issue since 2001 when I, along with 
former Representative Steve Horn, held a hearing in the Government 
Reform Committee where we heard from the courageous rape survivor 
sitting at this table, Debbie Smith.
    Debbie recounted her horrifying story . . . how an intruder broke 
into her home and raped her in the nearby woods. Six years later her 
assailant was charged with her rape because DNA processing techniques 
had produced a ``cold hit.''
    Inspired by Debbie's story, I resolved to do something to combat 
the epidemic of violence against women in the United States, where a 
sexual assault occurs every two minutes.
    I knew that DNA processing techniques could serve as conclusive 
proof in countless other rape cases. But I was outraged that a backlog 
of hundreds of thousands of rape kits, with DNA evidence already 
collected, were gathering dust in police stations and crime labs all 
over the country . . . all because of inadequate government funding.
    It was for Debbie, and the thousands of rape survivors like her, 
that I authored ``The Debbie Smith Act'' to provide federal funding to 
process the unconscionable backlog of DNA evidence.
    I first introduced this legislation in 2001. In 2004, it was signed 
into law as part of the ``Justice For All Act,'' comprehensive DNA 
legislation that has helped bring justice to rape survivors and their 
families across the country.
    The ``Justice For All Act'' accomplished several critical 
objectives including authorizing the necessary funding, $151,000,000 in 
each fiscal year from FY2005 through FY2009, to start processing the 
backlog of DNA evidence through the creation of the Debbie Smith DNA 
Backlog Grant Program. Since 2004, millions of dollars in funding have 
been appropriated under the Debbie Smith DNA Backlog Grant Program.
    Because this groundbreaking program's authorization expires at the 
end of FY2009, I have introduced H.R. 5057, ``The Debbie Smith 
Reauthorization Act of 2008,'' which extends the program through 
FY2014. I am pleased to have been joined in introducing the legislation 
by the Chairman and Ranking Member of the Judiciary Committee, Chairman 
Conyers and Ranking Member Smith. Resolutions have already been 
introduced or passed across the country in support of ``The Debbie 
Smith Reauthorizaton Act'' including in Vermont, Alaska, and the City 
of Easton in Pennsylvania.
    Estimates place the number of unprocessed rape kits nationwide in 
the tens and possibly hundreds of thousands. Each kit represents an 
innocent life and a rapist who may commit multiple rapes before he is 
caught.
    DNA is remarkable evidence. It doesn't forget, it can't be 
confused, it can't be intimidated and it doesn't lie. While an 
eyewitness can easily get mixed up about height, weight, hair color--
DNA never changes its story.
    Debbie's bravery and dedication to working with me to pass ``The 
Debbie Smith Act,'' which was no small feat, has already made a 
tremendous impact on our justice system. We were joined in our efforts 
by Lifetime Television and RAINN, as well as other groups dedicated to 
ending violence against women.
    April is Sexual Assault Awareness and Prevention Month. Tragically, 
only 6% of rapists will spend any time in jail. Congress must continue 
to support programs, like the Debbie Smith DNA Backlog Grant Program, 
that help to put rapists in prison and reduce violence against women.
    I want to thank the Subcommittee for inviting me to testify today, 
and I look forward to working with you to move ``The Debbie Smith 
Reauthorization Act'' forward.
    Thank you.

    Mr. Scott. Thank you.
    Mr. Reichert?

TESTIMONY OF THE HONORABLE DAVID G. REICHERT, A REPRESENTATIVE 
            IN CONGRESS FROM THE STATE OF WASHINGTON

    Mr. Reichert. Thank you, Mr. Chairman.
    I want to thank Chairman Conyers and Ranking Member 
Gohmert, and Ranking Member Smith also, for the opportunity to 
testify today and first would like to say that I very much 
admire and respect Debbie Smith as a survivor and some of the 
other survivors who might be here today.
    To have the courage to come and testify before Congress and 
push for important legislation that will be helpful to others 
in their lives takes a lot of courage. I have investigated 
these cases over my 33-year career as a police officer, but the 
one that I want to talk to you about today is one that I think 
really paints a picture of the great need for DNA funding.
    I was a young detective in 1982 at 31 years old. Sometimes 
it is a hard story to tell--lots of bodies, and lots of 
victims, and lots of families torn apart, lots of bad memories 
in this case.
    But if you think about--in 1982, at 31 years old--I had 
dark brown hair, by the way, back then. [Laughter.]
    Standing on the riverbank--there was no computer. There was 
no--we were investigating this case and organized it by using 
3x5 note cards and a Rolodex file.
    And when I share this story with junior high and high 
school students, immediately I get a hand that says, ``Sheriff, 
what is a Rolodex file?'' They haven't got a clue.
    But no DNA. There was blood typing. That was it. And if we 
got a blood type, it would narrow the suspect pool to millions. 
There was no automated fingerprint identification system when I 
started this case, no AFIS system. So it just tells you how far 
we have come from 1982 to today.
    I agree with you, Chairman Conyers, this is an historical 
day, I believe, for your Committee. This reauthorization needs 
to take place.
    We were able to collect bodily fluids from the riverbanks 
from three of the victims in this case. They were the only 
three bodies that had any flesh attached to it during this 
entire investigation, and that is the only reason we were able 
to collect the bodily fluids that would somehow come together 
with a gauze that contained saliva that the suspect was asked 
to chew on in 1987.
    We collected those samples in 1982 and froze them. We had 
over 10,000 items of evidence collected during the 
investigation of this case over the 19-year period that we 
worked on this case, and I am proud to say that we found every 
one of them when it came time for trial. And that, my friends, 
is unusual, too.
    But the bodily fluids frozen in 1982--spermatozoa--in 1987, 
Gary Ridgway was identified as a possible suspect out of 40,000 
tip sheets. We interviewed him. He passed a polygraph test and 
he was released.
    And we went on to investigate others. All the while, Gary 
Ridgway is in the mix. He is out there. He is still a part of 
what we are looking at. You know, the polygraph test is a tool 
that we use. He didn't fit the profile, by the way, the FBI 
profile, which is another tool that came along during this 
investigation.
    I have 40 seconds left? I want to tell you that the science 
came together. The DNA science came together. On September 
10th, the day before September 11th, 2001, my detectives came 
to my office and said, ``Sheriff, we know who killed at least 
three of the women.'' DNA did that.
    Now, it took 2 years for him to finally come to prison, but 
I spent 3 days--if I could just have a little bit more time--
with each family member, 50 families, and explained to them 
what we want to do is make a deal, so no death penalty here, 
but we wanted answers to questions.
    We were able to get an additional three cases matched 
through another science of paint evidence. It was a total of 
seven. He wanted to plead guilty. He wanted to save his life. 
Most of the families were in agreement to that.
    But DNA provided the answers to the questions that these 
families have had for 19 years. Four of the families found out 
where the bodies of their daughters were for years that we 
couldn't find.
    So to all the Members of the Judiciary Committee that have 
this decision to make, I wish I could have more clearly stated 
without such emotion the need for DNA testing and the relief 
that it brings to people like Debbie Smith.
    There will never be closure. The memories are always there. 
The families of the victims in this case will never have 
closure. But they have got answers to questions. They were able 
to put their victims, their daughters, to rest, to go visit 
their bodies in a cemetery.
    And my wish and hope is, of course, that no other young 
lady has to suffer at the hands of such a murderous monster. 
But if it happens, DNA is so essential.
    We were actually recipients of a $1 million Federal grant 
to help with DNA testing. I went before my county council in 
Seattle and asked for an extra $500,000. They didn't have it. I 
spent it anyway. We need your help.
    I yield.
    [The prepared statement of Mr. Reichert follows:]

Prepared Statement of the Honorable David G. Reichert, a Representative 
                in Congress from the State of Washington

    Thank you Chairman Conyers, Ranking Member Smith, Chairman Scott 
and Ranking Member Gohmert for the opportunity to be here this morning. 
I am pleased to share with you my experience with forensic DNA 
technology and the critical role that technology played in bringing a 
serial killer to justice and providing answers to the questions the 
victims' families had been asking for many years.
    Before coming to Congress, I spent over 30 years in law enforcement 
in the King County Sheriff's Office, in Seattle, Washington. I have 
personally witnessed how forensic DNA has closed unsolved rapes and 
homicides in Washington State. For 20 years I was involved in the case 
of the Green River Killer, in which at least 48 women were found 
murdered throughout King County, Washington; the first five were found 
along the Green River and so it was called the Green River Task Force. 
DNA evidence played a central role in this investigation and ultimately 
led to the conviction of Gary Ridgway.
    Ridgway became a suspect early in the investigation but after 
passing a polygraph test and with no physical evidence to link him to 
the crimes, he walked free. Police collected bodily fluids from the 
first victims found in 1982, and first took hair and saliva samples 
from Ridgway in 1987. At the time, the technology did not exist to 
compare these samples with the evidence collected at the crime scenes. 
These samples were later subjected to DNA analysis. When the tests came 
back on September 10, 2001, the DNA from 3 of the 48 victims was 
attributed to one suspect, Gary Ridgway. It is incredible that nearly 
two decades later, thanks to advancements in DNA technology, a small 
saliva sample compared with the first crime scene evidence from 1982 
would prove the key to unlocking one of the most notorious serial 
murder cases in our history. Gary Ridgway pled guilty to 48 separate 
counts of murder and later admitted to having sex with and killing over 
70 women. He is now serving life in prison.
    I cannot speak enough about the importance of DNA analysis to law 
enforcement and to the victims and their families. DNA analysis is a 
powerful tool that can potentially help solve hundreds of cases where 
no known suspect currently exists. Unfortunately, there is a severe 
backlog for DNA testing. It is a real tragedy that we have the 
technology needed to bring offenders to justice and peace to their 
victims, yet we're unable to fully utilize it.
    For victims of rape and sexual assault, DNA promises the 
opportunity to finally reclaim their lives--their sense of security, 
confidence, and independence that only comes after knowing their 
offender is caught and behind bars. Today, an alarming 1 in 6 women and 
1 in 33 men have experienced an attempted or completed rape, and 1 out 
of 4 college-aged women have been sexually assaulted. In 2006, there 
were over 270,000 victims of rape, attempted rape, or sexual assault in 
the United States. Sex crimes are one of the most personal, offensive, 
and destructive crimes. Often victims are never able to fully recover 
from the psychological and emotional distress associated with the 
offense. DNA has the unequaled ability to identify rapists, bring them 
to justice, and grant peace of mind to victims. We owe it to our 
daughters, sisters, and neighbors to do everything in our power to 
eliminate the DNA backlog so rapists are taken off the streets and 
prevented from claiming more innocent victims.
    The bottom line is the FBI and state and local law enforcement must 
eliminate the backlog and get the DNA samples into the system. It is 
the only way the DNA does all that it's capable of.
    I commend the Judiciary Committee for taking up this charge to 
eliminate the DNA backlog through the reauthorization of the Debbie 
Smith DNA Backlog Grant Program. This program goes a long way towards 
helping states and local government eliminate the current backlog of 
unprocessed DNA samples so that dangerous perpetrators like Gary 
Ridgway can be caught and communities across our nation will be safer.

    Mr. Scott. Thank you very much. And we are certainly going 
to do what we can.
    If there are no questions for our witnesses--thank you very 
much.
    If the next panel will come forward.
    Our next witness will be Debbie Smith, for whom H.R. 5057 
is named. As a survivor, as we have heard, of a brutal attack, 
Ms. Smith has become a crusader, intent on helping other 
victims and preventing other persons from being victimized.
    She speaks all over the United States and Canada in an 
effort to help others, and she is the founder and CEO of the H-
E-A-R-T, Heart, Incorporated, a nonprofit foundation 
established to aid victims of sexual assault.
    The next witness will be David Hagy, director of the 
National Institute of Justice. He oversees the research, 
development, evaluation of activities at the Department of 
Justice, including the authorization of grants under the 
Justice for All Act of 2004.
    He holds a bachelor of science and economics from Texas A&M 
and a master of arts and Ph.D. in political science from 
Tulane.
    The next witness will be Peter Malone, director of the 
Virginia Department of Forensic Science. He is a member of the 
Forensic Education Program Accreditation Commission for the 
American Academy of Forensic Sciences and the National Academy 
of Sciences Committee on identifying the needs of the forensic 
science community.
    He also is Chair of the Consortium of Forensic Science 
Organizations. He has a bachelor's degree and master's degree 
in chemistry, each from the University of Pittsburgh.
    Our next witness will be Mr. Levon Brooks, who is the 215th 
person to be exonerated through the use of DNA technology. In 
1992, he was tried and convicted of a heinous child murder that 
he did not commit.
    DNA evidence was used to solve other murders that had 
almost identical circumstances, which led to Mr. Brooks' 
exoneration. On March 13, 2008, Mr. Brooks was finally cleared 
of all charges, but only after serving the last 18 years in 
prison.
    Our final witness will be Mr. Peter Neufeld, co-founder and 
co-director of The Innocence Project at the Benjamin Cardozo 
School of Law.
    His work has shaped the course of case law across the 
country and helped to lead to an influential study by the 
National Academy of Sciences on forensic DNA testing, as well 
as important State and Federal legislation setting standards 
for the use of DNA testing.
    He has a bachelor's degree from the University of Wisconsin 
and a law degree from New York University Law School.
    Now, all of our witnesses statements will be entered in the 
record in their entirety. I would ask each witness to summarize 
testimony in 5 minutes or less.
    And to help you stay within that time, there is a lighting 
device on the table which will start with green, go to yellow 
when there is 1 minute left, and it turns red to signal that 
the 5 minutes have expired.
    Ms. Smith, it is good to see you.

 TESTIMONY OF DEBBIE SMITH, CHARLES CITY, VA; MR. DAVID HAGY, 
  DIRECTOR, NATIONAL INSTITUTE OF JUSTICE, OFFICE OF JUSTICE 
      PROGRAMS, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC

    Ms. Smith. I want to thank you for allowing me to be here 
this morning and for the commitment of Congress that Congress 
has shown to the victims by funding the Debbie Smith Act.
    I am deeply grateful to the House because you have 
consistently voted to fully fund this important piece of 
legislation, and your message was finally heard as last year, 
for the first time, Congress essentially fully funded the 
Debbie Smith Act.
    It is truly a privilege to be given the opportunity to be a 
small part of this legislative process. It is also one of the 
most terrifying things I have ever done.
    I truly believed that March 3, 1989 would be the last day 
that I would feel the loving touch of my husband's embrace or 
hear the precious voices of my children tell me that they loved 
me.
    It was on a Friday that a stranger entered my home 
threatening to kill me if I screamed. He then abducted, 
blindfolded and led me to the woods behind my home where he 
repeatedly raped me and robbed me.
    After being raped, I struggled with trying to live with the 
memories of that day. For 6\1/2\ years the smell of his breath, 
the touch of his cool, damp coat sleeve around my neck, the 
sight of his black rubber boots and the sound of his voice 
reminding me, ``Remember, I know where you live, and I will 
come back to kill you if you tell anyone,'' were all stored in 
my mind, unwilling to be discarded.
    I needed peace, security and to feel normal again. I had no 
hope that I would ever attain this vital relief. I had found 
the fate worse than death, and that was living with the 
memories of this day, living with the fear that he would 
fulfill his promise to return to kill me or, even worse, that 
he would he take out his revenge on my husband or my children.
    I merely existed for those 6\1/2\ years as fear held my 
heart and soul within its grip, choking out any joy in life. I 
became suicidal, seeking peace and rest from the pictures that 
played without warning in my mind.
    Finally, a cold hit, DNA cold hit, offered peace to my 
fearful heart and gave validation to my accusations, 
administered justice, and prevented this man from claiming 
another victim. With his conviction, the jury sentenced him to 
two life sentences plus 25 years with no parole.
    But my problem here this morning is how do I convey to you 
something that is so deeply rooted in my heart that the only 
way I have found to express it is through action?
    Perhaps if you can picture in your mind the reality of what 
I have seen in labs and police evidence lockers all across our 
great country, you will have a sense of the urgency that I feel 
for row after row of shelves, from floor to ceiling, holding 
boxes of every size, with numbers written in black ink, 
containing vital evidence, that are dusty and untouched.
    These are not just boxes but they represent real people, 
people that are trying to live past the memory of the day that 
evidence was taken from their body.
    These victims have family and friends who are watching 
them, watching the self-destruction that often comes from 
sexual assault, these people, who are waiting as I had waited. 
But for how many of them is it already too late?
    When a rape victim submits to this very intrusive evidence 
collection process, she at least knows that she has done her 
part. She has done everything that has been asked of her to 
keep this man from hurting anyone else.
    Unfortunately, there is a very good chance that this vital 
evidence will sit on a shelf with another estimated 350,000 
rape kits, each holding within it vital evidence that is 
crucial to the safety of women everywhere.
    Each day that passes without the identity of these rapists 
being known allows them to continue to claim victims, and I 
promise you they will. We simply cannot allow these women to 
feel violated again by our negligence to do all that we can to 
provide them justice and safety.
    It is for the 65,000 victims in Alabama, the 40,000 in 
California and all those victims across our country who are 
still waiting for answers that my husband and I have sacrificed 
our income, our retirement and our time.
    It is for them that we continue to return to your offices 
pleading for proper appropriation of funds and now for the 
reauthorization of this bill.
    I am not a paid lobbyist. Living on a retired policeman's 
pay is not easy. In fact, if it were not for our foundations' 
fundraising efforts and the support from local and national 
businesses, we could not afford to be here today, as neither of 
us takes any type of salary or honorarium, but they help to 
provide the necessary expenses as we travel all over this 
country, training nurses, prosecutors, law enforcement and 
advocates on how to deal with victims and the value of DNA.
    This is not a job for me. This is my life. This is my very 
heart. And I will do whatever it takes to give these victims a 
chance at justice.
    Since passing the Debbie Smith Act, Massachusetts' crime 
lab has reduced their sexual assault backlog from 4,000 cases 
to 2,081 cases, solving cold cases and providing numerous 
offender profiles to be added to CODIS.
    Atlanta, GA has reduced their DNA backlog from 33,000 to 
5,000 cases in just less than 2 years.
    After 19 years, a Texas victim was relieved when, in 2006, 
CODIS produced the identity of her attacker. Prosecution was 
not possible because of the statute of limitations, but her 
attacker's parole was denied because of this new DNA evidence.
    We have made tremendous strides since passing the Debbie 
Smith Act, but our success has also been our own worst enemy.
    As State legislators understand the power of DNA, they have 
broadened the types of offenses they have included in the 
database, and more States are beginning to include all 
arrestees.
    Detectives recognize its enormous ability in solving no-
suspect cases, and police officers are more aware of DNA's 
capabilities. Victims are grasping the connection between DNA 
and justice, giving them the courage to submit to the 
humiliating rape kit.
    All of these wonderful achievements have caused a swell in 
the backlogs, though, across our country. I am fortunate to 
live in a State where the forensic scientists realized the 
potential of this valuable tool and found resources to initiate 
a program.
    Unfortunately, these resources are not available in most 
States. The swell having subsided, with another 5 years of 
Federal funding, crime labs can begin to eliminate their 
backlog and the current unacceptable turnaround can be 
shortened.
    As the success of this powerful tool continues, the public 
becomes more confident in the system, and State and local 
budget writers will have the data needed to begin paying for 
their own DNA programs without Federal assistance.
    We have to continue to keep DNA a priority. Not to do so 
would mean that we are going to lose valuable momentum. This 
science is distinctive in that it is tied to a national 
database, and it requires involvement from Congress and State 
legislature to function.
    When the original bill was passed, it provided for training 
money for all first responders, including sexual assault nurse 
examiners. These forensic nurses are vital in the collection 
and preservation of evidence, but this part of the bill is yet 
to be funded.
    I would ask that you use the power afforded you to guide 
our wonderful country to using DNA to its fullest potential.
    In closing, DNA is structurally a chain, yet this amazing 
piece of science breaks the chains of emotional imprisonment 
and becomes a chain of confinement for those who would violate 
innocent citizens.
    DNA gives life. It administers justice, offers peace and 
validation, frees the innocent. And I believe it is one of the 
greatest crime prevention tools we have available today.
    All victims of crime deserve the experience of this gift of 
renewed life that I received, and I know that DNA can offer 
that gift. To withhold that gift would be the act of denying 
our citizens that promised right of liberty and justice granted 
by our Constitution.
    So I am honored and I am proud to be here with you today 
representing that hope of promised justice. Thank you.
    [The prepared statement of Ms. Smith follows:]

                   Prepared Statement of Debbie Smith

    Let me begin by thanking each of you for allowing me to be here 
this morning and for the commitment Congress has shown to victims by 
funding The Debbie Smith Act. I am deeply grateful to the House for you 
have consistently voted to fully fund this important piece of 
legislation. Your message was finally heard as last year for the first 
time Congress essentially fully funded The Debbie Smith Act. It is 
truly a privilege to be given an opportunity to be a small part of the 
legislative process . . . it is also one of the most terrifying things 
I have ever done.
    My personal experience as a rape victim provides me with the 
understanding of the devastation of this crime. With understanding 
comes knowledge and with knowledge comes responsibility. This vivid 
understanding has changed my life forever.
    I truly believed that March 3, 1989 would be the last day that I 
would feel the loving touch of my husband's embrace or hear the 
precious voices of my children say, ``Mommy, I love you.'' It was on 
that Friday afternoon that a stranger entered my home threatening to 
kill me if I screamed. He then abducted, blindfolded and led me to the 
woods behind my home where he robbed and repeatedly raped me.
    After being raped I struggled with trying to live with the memories 
of that day. For 61/2 years the smell of his breath, the touch of his 
cool, damp coat sleeve around my neck, the sight of his black rubber 
boots and the sound of his voice in my ears reminding me, ``Remember I 
know where you live and I will come back to kill you if you tell 
anyone'' were all stored in my mind unwilling to be discarded. I needed 
peace, security and to feel normal again. I had no hope that I would 
ever attain this vital relief. I had found the fate worse than death 
and it was living with the painful memory, living with the fear that he 
would fulfill his promise to return to kill me or even worse that he 
would he take out his revenge on my children or my husband. I merely 
existed for those 61/2 years as fear held my heart and soul within its 
grip, choking out any joy of life. I became suicidal, seeking peace and 
rest from the pictures that played without warning in my mind. Finally 
a DNA cold hit offered peace to my fearful heart, gave validation to my 
accusations, administered justice, and prevented this man from claiming 
another victim. With his conviction the jury sentenced him to two life 
sentences plus 25 years with no parole.
    How do I convey something so deeply rooted in my heart that the 
only way I have found to express it is through action? Perhaps if you 
can picture in your mind the reality of what I have seen in labs and 
police evidence lockers all across our great country you will have a 
sense of the urgency I feel. Row after row of shelves from floor to 
ceiling holding boxes of every size with numbers written in black ink 
containing vital evidence, dusty and untouched. These are not just 
boxes but represent real people . . . people trying to live past the 
memory of the day that evidence had been taken from their body. These 
victims have family and friends who may be watching the self 
destruction that often accompanies sexual assault. These are people who 
are waiting as I had waited but for how many was it already too late?
    When a rape victim submits to the very intrusive evidence 
collection process she at least knows that she has done her part . . . 
she has done all that has been asked of her . . . to keep this man from 
hurting anyone else. Unfortunately, there is a very good chance that 
this vital evidence will sit on a shelf with another estimated 350,000 
rape kits each holding within it vital evidence that is crucial to the 
safety of women everywhere. Each day that passes without the identity 
of these rapists being known, allows them to continue to claim victims 
. . . and they will. We simply cannot allow these women to feel 
violated again by our negligence to do all we can to provide them 
justice and safety.
    It is for these victims that my husband and I have sacrificed our 
income, retirement and time. It is for them that we continue to return 
to your offices pleading for proper appropriation of funds and now for 
re-authorization of this bill. I am not a paid lobbyist. Living on a 
retired policeman's pay is not easy, in fact if it were not for our 
foundations fundraising efforts and the support from local and national 
businesses we could not afford to be here today as neither of us takes 
any type of salary or honorarium for our labor. We travel all over our 
country training nurses, prosecutors, law enforcement and advocates on 
how to deal with victims and the value of this DNA. This is not a job 
for me . . . this is my life . . . my very heart. But I will do 
whatever it takes to give these victims a chance at justice.
    We have made tremendous strides since the passing of the Debbie 
Smith Act but our success has also been our own worst enemy. As state 
legislators understand the power of DNA they have broadened the types 
of offenses they have included in the data base and more states are 
beginning to include all arrestees. Detectives recognize its enormous 
ability in solving no-suspect cases and police officers are more aware 
of DNA's capabilities. Victims are grasping the connection between DNA 
and justice giving them the courage to submit to the humiliating rape 
kit. All of these wonderful achievements have caused a swell in the 
backlogs across our country. I was fortunate to have live in a state 
where the forensic scientists realized the potential of this valuable 
tool and found resources to initiate a program. Unfortunately these 
resources were not as readily available in most states.
    The swell having subsided, with another five years of federal 
funding crime labs can begin to eliminate their backlogs and the 
current unacceptable turn around time will be shortened. As the success 
of this powerful tool continues the public becomes more confident in 
the system and state and local budget writers will have the data needed 
to begin paying for their own DNA programs without federal assistance.
    We must continue to keep DNA a priority, not to do so would mean 
losing valuable momentum. This science is distinctive in that it is 
tied to a national database, requiring involvement from Congress and 
state legislature to function. I would ask that you use the power 
afforded you to guide our wonderful country to using DNA to its fullest 
potential.
    DNA is structurally a chain, yet this amazing piece of science, 
breaks the chains of emotional imprisonment, and becomes a chain of 
confinement for those who would violate innocent citizens. DNA gives 
life, it administers justice, offers peace and validation, frees the 
innocent and I believe that it is one of the greatest crime prevention 
tools we have available today. All victims of crime deserve the 
experience of this gift of renewed life and I know that DNA can offer 
that gift. To withhold that gift would be the act of denying our 
citizens the promised right of liberty and justice granted by our 
constitution. So I am honored and proud to be here with all of you 
representing that hope of promised justice.

    Mr. Scott. Thank you. Thank you.
    Dr. Hagy?

  TESTIMONY OF DAVID W. HAGY, DIRECTOR, NATIONAL INSTITUTE OF 
    JUSTICE, OFFICE OF JUSTICE PROGRAMS, U.S. DEPARTMENT OF 
                    JUSTICE, WASHINGTON, DC

    Mr. Hagy. Thank you, Chairman Scott, Ranking Member 
Gohmert, and obviously the distinguished Members of the 
Subcommittee.
    And I want to thank, obviously, people like Debbie Smith 
who have worked tirelessly to raise the profile of DNA and its 
importance in crime and justice issues.
    Obviously, as they said earlier, NIJ's mission is to 
advance scientific research to meet the challenges of crime and 
justice, and I am pleased to be here to talk about the 
department's efforts in this area and forensic capacity, as 
well as--particularly as it regards to DNA.
    As you are hearing in the stories today, forensic science 
plays a vital role in the criminal justice system in solving 
crime, protecting the innocent and identifying the missing.
    Congress has repeatedly demonstrated its commitment to DNA 
technology, including the passage of the Justice for All Act in 
2004, which includes the Debbie Smith Act.
    Since fiscal year 2004, NIJ has provided over $575 million 
to support DNA and forensic-related activities. Through the 
initiative, State and local law enforcement agencies have 
tested, as many have said earlier, 104,000 DNA cases.
    The NIJ has also funded the analysis of 2.5 million 
convicted offender and arrestee samples which will all be added 
to the National DNA Database. And again, as mentioned earlier, 
over 5,000 hits or matches to unknown profiles or other cases 
have resulted.
    The NIJ has also supported many innovative research 
projects in human genetics, molecular biology and 
biotechnology.
    The research has dramatically improved DNA testing of 
sexual assault samples, which--we have heard from Congresswoman 
Maloney and Debbie Smith how important that is--as well as 
those of small, degraded or compromised evidence which is used 
in missing persons and mass disaster cases.
    Research in other forensic disciplines, such as impression 
evidence, toxicology, crime scene, other non-DNA areas have 
already greatly expanded. These research programs promise to 
revolutionize forensic science methods.
    NIJ has provided funding to expand the long-term capacity 
of criminal justice agencies to process DNA evidence on their 
own, through the purchase of modern equipment, hiring of staff, 
training of new analysts, and we have delivered basic and 
advanced cold case and missing persons training for law 
enforcement.
    NIJ produced an interactive resource tool entitled 
``Principles of DNA'' for officers of the court to help lawyers 
and judges understand DNA and its implication. It doesn't just 
stop with a match. It has to go on and make sure it follows 
through the entire process.
    In 2007, we launched the National Missing and Unidentified 
Persons System, which we call NamUs. It is the first national 
online repository designed to help medical examiners and 
coroners share information about missing persons and the 
unidentified dead.
    The Department of Justice seeks to ensure that all Federal 
funds are spent wisely and that the criminal justice system can 
rely on the validity of forensic results.
    One major step in this direction is Grant Progress 
Assessment Program through which NIJ assesses 100 percent of 
its grants over a 2-year cycle. Since implementing the GPA 
program, 854 reports have been generated, thousands of 
forensics results have been reviewed by independent experts, 
and many important improvements have been instituted in labs 
that receive the funds. It is kind of a best practices as well 
as auditing.
    The Department of Justice has taken many other steps, such 
as ensuring accreditation of grantee laboratories, monitoring 
financial compliance, educating grantees about best practices 
and mandating the timely expenditure of Federal funds.
    We are aware that the Committee is concerned about the 
Post-Conviction DNA Testing Program. Please be assured that the 
Department of Justice remains fully committed to exonerating 
wrongly convicted individuals.
    The issue with the Kirk Bloodsworth Post-Conviction Testing 
Program has been with section 413 of the Justice for All Act. 
This section requires State applicants to demonstrate that they 
satisfy detailed and stringent eligibility requirements for 
preserving biological evidence and providing post-conviction 
DNA testing in connection with all State felonies.
    In fiscal year 2007, as it was said earlier, we issued a 
solicitation under those requirements of 413. We got three 
applicants and none were considered eligible for the program.
    With the benefit of the language that was provided in 
fiscal year 2008 appropriation, we eased the eligibility 
requirements for the post-conviction program.
    One example is now a State must only address post-
conviction testing and preservation of evidence in cases of 
murder, non-negligent manslaughter and rape, rather than all 
State felonies.
    NIJ's fiscal year 2008 solicitation was issued in January. 
We conducted extensive outreach above and beyond what we 
normally do to ensure that people knew that this application 
was out there. Five States did submit applications.
    And assuming the requirements are met--we are working on 
the peer review now--we expect to make those awards this year.
    What we are also doing is trying to do a survey of the 
States that didn't apply. We are just as concerned as to why we 
only got five States that applied. We thought that the three 
would be improved as the requirements were eased.
    So I just want to say we have made great progress. There is 
much more to be done. And it is this backlog, as mentioned 
earlier--the submission of violent and non-violent crime scene 
information, as well as the collection from offenders of 
violent crimes to all felons and now, in many cases, all 
arrestees is increasing that backlog. But we are working our 
best to do it.
    And again, I want to thank you and just reiterate that 
whatever problems or concerns we have with the post-conviction 
program, it is not a lack of motivation on the very dedicated 
and bright staff of NIJ. I have the great privilege to work 
with them.
    So I can assure you our motivations are pure, and we are 
working very, very hard to get that money out. So thank you for 
having me, and I will open up for questions.
    [The prepared statement of Mr. Hagy follows:]

                  Prepared Statement of David W. Hagy

















    Mr. Scott. Thank you.
    Mr. Marone?

TESTIMONY OF PETER M. MARONE, DIRECTOR, VIRGINIA DEPARTMENT OF 
                 FORENSIC SCIENCE, RICHMOND, VA

    Mr. Marone. Thank you, Mr. Chairman, Ranking Member 
Gohmert, other Members of the Committee.
    I am director of the Department of Forensic Science, as the 
Chairman indicated, but I am also speaking today as Chairman of 
the Consortium of Forensic Science Organizations.
    And what that is is six national organizations--the 
American Academy of Forensic Science, the National Organization 
of Medical Examiners, the American Society of Crime 
Laboratories, the International Association of Identification, 
American Society of Crime Laboratory Directors, Laboratory 
Accreditation Board, and maybe I missed somebody, but you get 
the idea. It is essentially the forensic science community.
    Just this past Monday, Maryland joined a great number of 
States in adding arrestee testing to their databases. Now, this 
is good and bad, if you look at it from an operational 
standpoint, because what we have experienced is, as we 
progress, as we develop more sensitive and more direct science, 
more technology, and add to the databases that the various 
States are looking at, that is very good.
    However, what it also does is it increases the number of 
cases that are available for laboratories to work. And with the 
databases, the number of hits that we have all talked about--
and we have talked about the numbers--hundreds of thousands of 
old cases that are now worked.
    And we are in a situation where laboratories are forced to 
struggle between the old cases, the cold cases, the post-
conviction cases, court dates and everything else, and it is 
not that they wouldn't really love to be able to do everything, 
but the resources just aren't there.
    The new services such as Y-STRs, mitochondrial typing, 
mini-STRs--all those methods go toward certainly new 
applications and the ability to be able to not only find the 
guilty but exonerate the innocent, and that is truly important.
    The casework backlog, as has been stated before, is 
somewhere around 350,000. Again, when we originally started the 
funding in 2000 and 2001, there were about 400,000, 450,000 
offenders, convicted offenders, in the CODIS databank. Now 
there are several million.
    Virginia alone started out with a few thousand. And thanks 
to a lot of far-thinking legislators in Virginia--by the way, 
the Chairman was one of them at the time who established the 
Virginia databank, and found that money for Virginia to 
essentially test 240,000 of those samples prior to any Federal 
funding being provided.
    The laboratories are catching up with the backlogs, but 
what is happening is--and I have heard the criticism; I am sure 
Mr. Hagy has heard the criticism--that in spite of the amount 
of money that has been funded to laboratories that the backlog 
is just not coming down.
    What is happening is the number of cases that are being 
worked is certainly going up, but because of the influx of a 
significant number of cases, it is a losing battle of more 
cases coming in the door even though you are working more. The 
backlogs aren't coming down as quickly as we would like.
    Virginia, for example, from 2003 to 2007 cut the backlog in 
half. That is at the same time that the receptions went up 50 
percent, 60 percent.
    There have been numerous success stories from Virginia that 
come out of the DNA funding under the Justice for All Act 
establishing many training positions that we funded under grant 
funding and, with projections, later on turned those grant-
funded positions into fully funded positions under our FTEs.
    I want to read this so I get it exactly right. The forensic 
science community enthusiastically supports the reauthorization 
of the Debbie Smith Act and encourages Congress to continue 
funding for DNA backlog casework and research development.
    It would be impossible for us to keep up with this issue 
not getting that funding. While the Commonwealth of Virginia is 
fortunate to have our administrations--several--and 
legislatures--they provided significant support for us not only 
in positions but in facilities--other States aren't that lucky.
    I would also like to address, then, the Bloodsworth Act, 
and maybe answer some of those issues with funding for post-
conviction testing. Virginia was one of those States that 
applied. We have applied again.
    And we have a significant--or should I say a very 
interesting issue in that the cases we are analyzing are cases 
for which we possess that evidence, so we know what that finite 
pool of cases is to be able to address for grant purposes.
    What the other States don't have necessarily is a handle on 
what that number is. Funding for post-conviction testing is 
just as important as funding for any other type of DNA 
processing.
    Thank you.
    [The prepared statement of Mr. Marone follows:]

                 Prepared Statement of Peter M. Marone

























    Mr. Scott. Thank you.
    Mr. Brooks?

 TESTIMONY OF LEVON BROOKS, WRONGFULLY CONVICTED OF MURDER AND 
                EXONERATED THROUGH DNA EVIDENCE

    Mr. Brooks. Thank you, Mr. Chairman--my name is Levon 
Brooks. I was locked up for a crime I did not commit. I did 18 
years, and I was exonerated in March of this year.
    And to give you a little example on how it was when I was 
there--a nightmare--gave up one time but I had to fight with 
everything that I had, you know, to make it, even with all 
kinds of people that you are around every day.
    But I had to do what I had to do to make it. But thanks to 
DNA, me and a lot of more guys--we were freed. And I am going 
to let this be short, because I am so happy to be out that I 
can't get my words out right.
    But I am going to do the best that I can. And we don't get 
nothing for re-exonerated. We are not getting compensated or 
nothing. And it is really kind of hard on us, you know, just 
coming back to the street.
    We ain't got nothing, so we try to make it--you know, the 
family that I got, you know--they trying to help me now, but I 
really need help on that issue. If you all could, you know, 
please help us out. And I think I could speak for the other 
guys, too.
    But I want to thank the Innocent Project, Mr. Peter and Ms. 
Vanessa, that has helped me get through this ordeal on running 
the DNA tests and stuff like that to help me.
    Then--to say thank you, God, I am here today. And DNA is a 
important thing, so that, like I said, that has freed me and a 
lot of more guys, and we are thankful.
    And I won't take up too much of your time, and I thank you 
just for being here.
    Mr. Scott. Thank you. And what State were you in? Were you 
in Mississippi?
    Mr. Brooks. Yes, sir.
    Mr. Scott. Thank you.
    Mr. Brooks. Macon, Mississippi.
    Mr. Scott. Thank you. Thank you for your testimony.
    Mr. Brooks. Thank you, sir.
    Mr. Scott. And, Peter Neufeld?

    TESTIMONY OF PETER NEUFELD, CO-FOUNDER AND CO-DIRECTOR, 
                INNOCENCE PROJECT, NEW YORK, NY

    Mr. Neufeld. Good morning, Chairman Scott and Ranking 
Member Mr. Gohmert, Congressman Nadler.
    Just to give you a little bit of background, because I 
think it is important here, back in the fall of 1990----
    Mr. Scott. We are going to have a couple of votes in a 
minute, so we will conclude your testimony and then come back 
for questions.
    Mr. Neufeld?
    Mr. Neufeld. Okay, sure. Back in the fall of 1990, in 
Mississippi, a 3-year-old girl was abducted from her house in 
the middle of the night. She is taken out. She is sexually 
assaulted. She is then killed, and she is dumped in a pond 
behind her house.
    There was a logical suspect. There was a pedophile. There 
was a young man in the community who had sexually assaulted 
other young women. Nevertheless, that suspect was not pursued, 
and instead attention focused on the boyfriend of the mother of 
the 3-year-old girl.
    And that young man was Levon Brooks. The only evidence used 
to convict Levon Brooks was the discredited testimony of a 
forensic dentist and local coroner and a pathologist, a 
pathologist who routinely testified in murder cases all over 
Mississippi, because he was the only one to do it at a 
discounted price.
    It was a capital case. Levon Brooks was convicted of the 
capital murder, but because of residual doubt he was sentenced 
to live in prison without parole.
    Eighteen months later, 1\1/2\ miles away in the same tiny, 
rural town in Mississippi, another 3-year-old girl is abducted 
from her home. She is taken out into the woods. She is sexually 
assaulted. She is then strangled and killed. And she is 
deposited in a creek behind the house.
    Now, to anyone looking at these two crimes, you might 
think, ``My goodness, they were obviously committed by a serial 
pedophile.'' But law enforcement in Macon, Mississippi didn't 
see it that way. And this time, they convicted a guy named 
Kennedy Brewer, who was the boyfriend of the second girlfriend.
    And again, he is convicted on the same discredited 
testimony, the same corrupt forensic dentist, and the same 
discredited testimony and false testimony of the local 
pathologist who did all the autopsies for 80 percent of the 
prosecutors in Mississippi at that time.
    He wasn't as lucky as Levon. He was sentenced to death and 
was sent off to Parchment death row to be executed. Years 
passed, and finally--finally--we got access to DNA, but not 
because there was a statute providing access to the DNA, not 
because there was a statute in Mississippi requiring them to 
preserve evidence.
    Now, Brewer, the second guy, Kennedy Brewer, gets DNA 
testing because his lawyer, one of the very few, asked the 
court at the end of the trial, ``Please preserve the biological 
evidence.''
    And then later on, when we requested testing, we couldn't 
get it until the Mississippi Supreme Court finally decided, 
``You know, in this case, you might want to do some testing.''
    And so Brewer gets testing on semen left by the perpetrator 
of the second crime, and it not only cleared Mr. Brewer, but 
eventually we called attention to this serial pedophile who was 
still out there at liberty, and DNA testing was done on him, 
and it matched him.
    We tried to do DNA testing on Mr. Brooks' case, but 
unfortunately, again, because Mississippi did not have a 
preservation statute, the biological evidence was not 
adequately preserved.
    But thank God for Mr. Brooks that, when the Attorney 
General took over the case and apprehended the real perpetrator 
just a couple of months ago, and started talking to the real 
perpetrator on videotape about the abduction of that little 
girl, Christine Jackson, in the Brewer case, he said, ``You 
know, by the way, I did another one, and the one I did was this 
little girl, Courtney Smith. It is the one that Levon Brooks 
was convicted of.''
    So it was serendipitous, if you will, because there was no 
preservation, and there was no access to the DNA, that Mr. 
Brooks, along with Mr. Brewer, was completely exonerated of 
this horrible, horrible crime.
    And of course, we join with Debbie Smith and Carolyn 
Maloney and the other people here who understand the importance 
of DNA and also understand how unreliable forensic science 
evidence, like the type used in these two cases--okay?--should 
be discarded, should be improved, and hopefully Congress will 
do that, at the same time opening up the opportunity for people 
like Levon Brooks and Kennedy Brewer to get DNA testing.
    Congress in its infinite wisdom passed the Justice for All 
Act and put aside a good pot of money so there would be 
testing. However, the executive branch gutted that, took away 
the financial incentives for poor States like Mississippi, like 
Alabama, to do DNA testing, left a small amount of money in the 
Bloodsworth grant, and that was it.
    Eighty people have been--of the 215 people who have been 
exonerated, 80 other people were identified as the true 
perpetrators. And in every case, almost every case, those 80 
people committed other serious violent crimes in the 
intervening years.
    Congress knew that to get the States to allow for access to 
DNA and to preserve the evidence, there had to be financial 
incentives. But it was taken away by the President, and the 
small amount that was left was poorly managed by NIJ's OJP.
    They put difficult obstacles in the way of most States, and 
they did it to the point that in the first year only 3 of 50 
States even applied for the money, and now you have only 5 
States, at a time when they say they have made it much easier 
to happen.
    They haven't made it that much easier. It is still very 
difficult for the States to do it. Attorney generals for this 
money alone have to certify that they have met certain tasks, 
and when they certify it, they have to swear to it under 
penalty of criminal prosecution.
    We have looked at other authorizations and requests for 
proposals from the Justice Department, and we have not seen 
anything quite that draconian. So as a result, you only have a 
few States doing it.
    The law needs to be changed. Hopefully you will do that. 
Hopefully you will allow that other monies that people get to 
do DNA testing and laboratories get will be conditioned on 
providing access to post-conviction DNA testing or preserving 
the evidence.
    Preservation is not just about the innocent. Preservation 
is also required so cold case units can look at old cases. It 
is a no-brainer. But they are not doing it.
    So hopefully Congress will impose that requirement as a 
condition of getting these other monies like it was initially 
intended in 2004. Change that law so there won't be more Levon 
Brooks', so there won't be more Kennedy Brewer's, and there 
won't be more 3-year-old girls who didn't have to be executed 
if the police had done it right the first time in 1990. Thank 
you.
    [The prepared statement of Mr. Neufeld follows:]

                  Prepared Statement of Peter Neufeld



























































































































    Mr. Scott. Thank you, Mr. Neufeld.
    As I indicated, we have votes in just a minute. If someone 
wanted to be recognized for a minute or so before we come 
back----
    Mr. Chabot. Mr. Chairman?
    Mr. Scott. The gentleman from Ohio?
    Mr. Chabot. Mr. Chairman, yes, I think I can do this in 1 
minute. I appreciate the opportunity to make a very brief 
statement.
    I would like to thank you for holding this hearing on such 
a critical topic, and the opportunities that have been made 
available to the criminal justice system through DNA technology 
are significant and quite remarkable.
    I have a constituent. Her name is Debra Culberson. Her 
daughter, Carrie Culberson, was murdered. Her remains were 
never found--never been located, and she has been an 
inspiration to many people in our community in trying to locate 
her daughter and deal with this terrible situation.
    And I appreciate and support H.R. 5057. I am a co-sponsor. 
However, there is one aspect of the DNA Initiative that I want 
to emphasize, and that is the use of DNA testing to identify 
and locate missing persons and human remains.
    More than 40,000 sets of unidentified human remains rest in 
laboratories or offices, often times sitting in a box or 
something on the shelf, across the Nation.
    Section 308 of the Justice for All Act was intended to 
encourage jurisdictions to use the technology for the purpose 
of identifying this and to submit the samples to the FBI 
missing persons database so that there was one central 
repository to which jurisdictions could access information.
    To date, this remains an underutilized component of the DNA 
Initiative, and I would just like to urge this Committee to 
focus appropriate attention on this important issue.
    And I thank you for yielding, and I yield back my time.
    Mr. Scott. Thank you.
    Mr. Davis. Mr. Chairman, I can probably do this in 45 
seconds.
    Mr. Scott. The gentleman from Alabama?
    Mr. Davis. I don't have additional questions for the panel, 
but I have a constituent of mine, Angelo Della Manna, who is 
the chief of forensic biology and DNA for the Alabama 
Department of Forensic Sciences, who believes very much in this 
program, has found it enormously helpful in my State.
    And he has submitted written testimony to the Committee 
that I would ask to be placed in the record.
    Mr. Scott. Without objection, so ordered.
    [The information referred to follows:]

 Prepared Statement of Angelo Della Manna, Chief of Forensic Biology & 
      DNA, Alabama Department of Forensic Sciences, Birmingham, AL





















    Mr. Scott. And we will recess for approximately 15 minutes, 
and we will be back as soon as the voting is over.
    [Recess.]
    Mr. Scott. The Subcommittee will come to order. We will now 
proceed with questions from the Members, and I will recognize 
myself for 5 minutes.
    Dr. Hagy, there is obviously a bipartisan consensus that we 
need to deal with this backlog of DNA samples. How much do we 
need to appropriate to effectively eliminate the backlog, 
consistent with the DNA technology that we have?
    Mr. Hagy. I am sorry?
    Mr. Scott. How much money would we have to appropriate to 
deal with the backlog? We have a bipartisan consensus, I 
believe, that we ought to be doing something. We have got these 
hundreds of thousands of kits floating around all over the 
place.
    How much would we need to appropriate to effectively deal 
with the backlog?
    Mr. Hagy. I don't even know if I could make a guess at 
that. I will tell you how we spend our money, because as an 
agency that Congress and the American gives money, what we try 
to do is focus our efforts on those things that have the 
biggest impact--our research and development, our capacity-
building, measures to increase the throughput in the 
processing.
    So we really focus on those efforts first, and then 
whatever--I mean, we always do, but we also want to send money 
out to the labs, and the equipment and some things that you buy 
in the field.
    So I really can't pick a figure. What I can say--we try 
to----
    Mr. Scott. Can you go back and try to pick out a figure? 
Because we would like to eliminate the backlog. As we have 
heard, because people are doing a better job in gathering 
samples, the backlog is not really--we are not really even 
chipping away at the backlog.
    How much would we have to appropriate to effectively 
eliminate the backlog?
    Mr. Hagy. I couldn't even get at a number. I apologize. It 
could be any amount. Like I said, the money we have now--we are 
trying to efficiently and effectively spend it. We will spend 
what we get, and we are fully committed to it, but it could be 
any number.
    And again, I don't know the future. We have some agencies 
that are having trouble spending their money. Some are spending 
more, and I----
    Mr. Scott. Well, let me ask you about the grants that are 
outstanding. Are we effectively spending the money that we have 
already appropriated in terms of grants? We had the technical 
problems before.
    Are there technical problems that may occur that would 
prevent you from releasing the funds that we have already 
appropriated?
    Mr. Hagy. I don't see really technical problems. Beyond the 
post-conviction issue that we are aware of, I don't see a lot 
of technical problems. We do see some States that you see in 
most grant programs--procurement issues, training of analysts 
so the casework can move faster is one of the concerns we have.
    Also, I think last year we had some money that is still out 
in the field. We try to keep a running total of what is out in 
the field because the budgets are coming later in the year.
    I think the analyst concern, procurement policies--those 
somewhat slow it down. But I think as far as technically, we 
are getting the money out the door.
    Mr. Scott. Mr. Marone, can you help us in what would be 
needed to deal effectively with the backlog, how much money you 
need?
    Mr. Marone. Unfortunately, I tend to agree with Dr. Hagy 
about the dollar figure issue, because what he doesn't have 
control of--what Congress doesn't have control of and what the 
field desperately needs is cooperation at the State and local 
level.
    He can give me money. If I can't get the FTEs, the 
positions, to train those people under grant funding, or I 
don't have the facilities or the maintenance, the under-all 
maintenance, to do that, that is the problem.
    Mr. Scott. Well, yes, but that--again, you get to money. 
What do we need to do as Members of Congress to effectively 
deal with the backlog? All we are getting is mumbo-jumbo.
    Mr. Marone. Well, okay. What we need do is, then, 
incentivize the situation.
    Mr. Scott. How much money do we need?
    Mr. Marone. He just told me you are utilizing $150 million 
now. I would say probably three times that might be--but the 
key is----
    Mr. Scott. So for less than $1 billion we can get rid of 
the backlog.
    Mr. Marone. Yes, sir. Well, that will help to get rid of 
the backlog.
    Mr. Scott. Well, if somebody can come up with some 
suggestions, we would like to hear them, because we are trying 
to eliminate the backlog, and all we get is--you know, I asked 
a simple question, and 5 minutes is almost up. I haven't gotten 
an answer yet. We are looking for a number.
    Mr. Marone. It is not a simple answer. That is the problem. 
No, seriously, States----
    Mr. Scott. It is a number.
    Mr. Marone. The problem is that States have to cooperate in 
this to agree to provide support. In addition to the Federal 
funds, there have to be buildings, there have to be people.
    And so Federal funds in and of themselves aren't going to 
correct that situation. That is the problem.
    Mr. Scott. Federal funds can build buildings.
    I will reserve the balance of my time for the next round.
    Mr. Gohmert?
    Mr. Gohmert. Well, thank you, Mr. Chairman.
    First, let me go to Ms. Smith.
    And I was honored to have the chance to meet you and visit 
with you during our break for votes.
    But you know, something was mentioned earlier when you 
mentioned about self-destructive tendencies after a sexual 
assault, and I think it speaks volumes for you that you have 
turned that into a positive to help so many across the country 
who have been victims.
    But I did as a judge see repeatedly that self-destructive 
tendency which was then used against victims or attempted to be 
used against victims when they went to testify at trials.
    So thank you for--I know it hasn't been easy, and closure 
doesn't mean complete closure. It just means a chapter. But 
thank you for what you are doing.
    And if at any time--let me just tell this to all our 
panelists. Your testimony doesn't have to end today. The 
question has been put by the Chairman--we are trying to get to 
the bottom and get to a solution. You can submit us things in 
writing. This is how you can help the program.
    And so I want to follow up what the Chairman was trying to 
get to. Let me go to Mr. Marone.
    Rather than a number, I am going to try to find out what do 
you think would be the most helpful change we could make to 
Federal law? I heard you say something about well, we don't 
have adequate training in the State and local areas.
    Do we need to have some of this money go for training 
programs? Is that something that needs to be part of the fix?
    Mr. Marone. Absolutely. Actually, I have to be very, very 
careful what I say, because I sit on the National Academy of 
Sciences Committee looking at these very issues, and we have 
been knocking these issues around for the last year, now----
    Mr. Gohmert. Well, I would have thought you would have an 
answer ready.
    Mr. Marone. And so what I see is it is a combination of all 
these things. The Chairman said Federal money can building 
buildings. Right now, I can use Federal funds to expand 
existing space I have or renovate it to make labs. I can't 
build a new building with it. That is one of the issues.
    Training is certainly, in essence, a very, very important 
part of the aspect there.
    Mr. Gohmert. But do you think it is the most important? 
That seemed to be where you were going a moment ago.
    Mr. Marone. They are all equally important. You have to 
have facilities to put people in. You have to have positions in 
order to train people.
    Over the last 2 years, Virginia got 34 positions, and it 
has taken us a couple of years to incorporate all those 
positions into now productive positions, not just for DNA but 
for other positions also.
    So for example, like firearms examiners take a year, DNA--
or, excuse me, 2 years, DNA examiners take a full year, maybe 9 
months, to train them. So once you have the position, it takes 
almost a full year to get them into speed where they are in a 
position to work those cases.
    Mr. Gohmert. So you are hiring people that aren't trained 
and equipped to do the DNA study?
    Mr. Marone. You are hiring college graduates and having to 
train them. The pool of experienced, qualified examiners is so 
small--yes, I can steal them from the next State over if I 
offer them more money, and that will help, but on the national 
level it doesn't help to trade people around. You have to 
produce new people.
    Mr. Gohmert. It just seems like the training could go a lot 
quicker than two to 4 years.
    Mr. Marone. Well, a year for DNA folks. No, sir, it can't. 
You know, maybe 9 months on the outside, but on the inside----
    Mr. Gohmert. Is there any college program in the country 
that would have people trained to do DNA studies in the 
criminal forensic area when they come out of college?
    Mr. Marone. They have all--and yes, there are. I actually 
also sit on the Committee that accredits college programs for 
just this thing, but----
    Mr. Gohmert. So you all are not accrediting--I mean, you 
have accredited people that are preparing people that are 
unprepared.
    Mr. Marone. You are accrediting colleges to have the 
appropriate programs to do this, yes, sir.
    Mr. Gohmert. But you have got to come back and train them 
before they are----
    Mr. Marone. You still have to screen them on the particular 
applications. They learn all the theory. They learn the 
genetics, the molecular biology, the biochemistry, but they 
don't know the specifics.
    And there are no college programs now that teach 
specifically the application. That is the key.
    Mr. Gohmert. Well, that sounds like that is a problem, so 
if----
    Mr. Marone. It is.
    Mr. Gohmert [continuing]. You are on the board to do an 
accreditation, then you need to tell them, ``We are not going 
to accredit you unless you can prepare people to go do these 
jobs when they come out,'' and not cause them to have to get 
more student loans or more training for 4 years after they get 
out.
    And let me just say, because my time is running out, Mr. 
Brooks, nobody could wish on anybody what, you know, you have 
been through for 18 years.
    I know some States like mine have programs where if you are 
wrongfully convicted, there is no amount of money that is going 
to give you back your 18 years, but at least, my goodness, you 
don't walk out with nothing, struggling as apparently you have.
    At least there are funds to help someone like you 
wrongfully convicted to at least have some seed money to get a 
start, and I am sorry that you have had to deal with that issue 
and for what you have been through.
    Mr. Neufeld, from your position, do you see--what do you 
see that needs to be done, the most important thing, to fix 
this legislation to where we address the DNA backlogs?
    Mr. Neufeld. On the DNA backlog or on the inability of 
people like Mr. Brooks to get access to evidence and post-
conviction?
    Mr. Gohmert. Well, yes, I am asking what do you see is the 
most important fix we can do to Federal legislation to address 
the DNA backlog the quickest so we don't have people languish 
18 years?
    Mr. Neufeld. The one point I would agree with Mr. Marone on 
is that, really, what has to happen--and Congress is going to 
probably do this--the sooner, the better--is realize just how 
critically important forensic science is not only as a matter 
of public safety, not only to identify innocent people and help 
them, but also to fight terrorism and everything else involved 
in----
    Mr. Gohmert. Okay. Let's assume we have got that 
realization. Now how do we fix the legislation?
    Mr. Neufeld. You are going to need an infusion of capital 
to allow for the training and education on a massive level in 
the United States of all the people who can do not only DNA 
work but all the other valuable forensic disciplines that are 
utilized in laboratories like the one that Mr. Marone runs and 
other people run around the country.
    You are going to have to have a program where better 
forensic science is utilized so we don't have the kind of 
situation that Mr. Brooks had to suffer, where you have an 
incompetent dentist and an incompetent pathologist providing 
false testimony to----
    Mr. Gohmert. Well, we are still at 30,000 feet. We are 
trying to get down to fixing the words in the law that make 
those things possible. We have got the realization among these 
folks.
    Mr. Neufeld. The Innocence Project is not involved, sir, 
with all due respect, in thinking about how to clear up the DNA 
backlog, which obviously we join in wanting to do, but it is 
going to be taking people like NIJ and numbers crunchers there 
to offer you the kind of assistance that you seek.
    Mr. Gohmert. Okay. I thank you.
    Mr. Scott. The gentleman from New York, Mr. Nadler?
    Mr. Nadler. Thank you.
    First of all, Mr. Neufeld--well, first of all, let me say 
that I feel very strongly about this whole subject. Back in 
February of 2002, I introduced an amendment to the Judiciary 
Committee's budget views and estimates to put the Committee on 
record as supporting full funding to eliminate the backlog of 
DNA evidence.
    And in March of that year, I introduced the Rape Kit DNA 
Analysis Backlog Elimination Act to provide $250 million for 
that purpose, and that was all folded into the Debbie Smith 
Act.
    But let me ask you, Mr. Neufeld, you mentioned that in Mr. 
Brooks' case and in other cases, this dentist and pathologist 
testified, and they testified in a lot of cases. Did they 
testify knowingly falsely or they were just incompetent?
    Mr. Neufeld. We realized in the two cases involving Mr. 
Brooks and Mr. Brewer--cases that they testified falsely and--
not only did they testify falsely, but it appears to experts 
who reviewed the evidence that they have testified deliberately 
falsely.
    Mr. Nadler. Have they been punished?
    Mr. Neufeld. They haven't been punished yet, although we 
filed a complaint with the medical licensing boards of 
Mississippi this week seeking Dr. Hayne's medical license, and 
we have asked----
    Mr. Nadler. I assume the statute of limitations on perjury 
has long since passed.
    Mr. Neufeld. No, it hasn't, because under Mississippi law, 
for instance, there is an exception for fraud.
    Also, we have asked the Federal Government--we have asked 
everybody we can to look into the possible criminal penalties 
for these people who used known falsehoods to convict innocent 
people and, frankly, of capital cases.
    Mr. Brewer, the other gentleman, went to death row. You 
know, as far as I am concerned, on a personal level, if you 
fabricate evidence in a capital case with the intent to send an 
innocent person to death row, you are committing the crime of 
attempted murder.
    Mr. Nadler. Yes. And you have been unsuccessful in getting 
prosecutions?
    Mr. Neufeld. So far we have.
    Mr. Nadler. In your general work with proving other people 
innocent, have you found perjury to be a major problem or just 
rarely?
    Mr. Neufeld. Well, you know, that depends on what you mean 
by perjury.
    Mr. Nadler. Deliberate false testimony.
    Mr. Neufeld. Right. We have found that one of the 
significant causes of wrongful conviction has been police and 
prosecutorial misconduct, where either people suborned perjury 
or people get on the witness stand and----
    Mr. Nadler. And as to people who have been proven innocent 
because of improper conduct, do you find that generally 
remedial action is taken, or is it just shrugged off?
    Mr. Neufeld. There has been historically very little 
remedial action, particularly, unfortunately, among 
prosecutors.
    A lot of prosecutors are very conscientious and are doing 
the right thing, but on those occasions when they step out of 
line and do the wrong thing, there is no discipline.
    In fact, in our State, like most States, even when a case 
is reversed for prosecutorial misconduct, there is no 
disciplinary action. There is no remedial action. There is 
nothing done to the offending prosecutor.
    Mr. Nadler. Would you think it might be a good idea for 
Congress to condition aid to States for justice matters on some 
sort of a record of disciplining people who bring about wrong 
convictions because of deliberate misconduct?
    Mr. Neufeld. I think it would be very good for Congress to 
do everything they could to create financial incentives on the 
States to take remedial action to eliminate or seriously reduce 
the causes of wrongful conviction.
    Misconduct is certainly one of those. Lawyers who are 
asleep in the courtroom is another. Police who secure false 
confessions is a third. Sloppy identification procedures which 
generate false--misidentifications is a fourth.
    All those causes need to be addressed. Congress can 
certainly get involved with that and create financial 
incentives for the States to eliminate those causes.
    Mr. Nadler. Let me ask you one other--thank you. Do you 
think it would be a good idea also for Congress to incentivize 
States to--we passed, as you told me in the break--Congress 
passed a bill a number of years ago to provide for compensation 
for Federal prisoners who have been wrongly imprisoned and 
urged States to do so, but almost--but very few States have 
done that.
    Do you think that the Federal Government should condition 
grants to States on their establishing programs to compensate 
people who spend significant amounts of time after wrongful 
convictions in State prisons?
    Mr. Neufeld. I think you can incentivize States to do the 
right thing with respect to compensation, because there is no 
question that the notion of compensation enjoys wide bipartisan 
support.
    No one feels that somebody like Levon Brooks, who spent 18 
years in prison--I mean, the crazy thing about Mr. Brooks here 
is 1 month before he went to prison, he was accepted into art 
school.
    He was about to leave a town of 350 in rural Mississippi, 
move north to go to art school. Instead, he spent the next 18 
years in some of the worst prisons in America. He obviously 
deserves some measure of compensation to try and get his life--
--
    Mr. Nadler. Thank you. And finally, you said that the 
executive branch had gutted the act, that it eliminated 
financial incentives to States. Only five States have applied 
for Federal money. What changes do you think should be made in 
the reauthorization act?
    Mr. Neufeld. Well, what happened very specifically was that 
in 2004, when Congress--it was the will of Congress in the 
Justice for All Act--had four different revenue streams that 
would go to the States to incentivize them to provide access 
for DNA testing and to preserve biological evidence, which was 
not only good for the innocent, but it was also good for police 
that want to do cold case units.
    What happened after Congress did that is the President did 
an end run around that legislation in the Justice for All Act 
by eliminating the incentives for three of the four parts, and 
those were the----
    Mr. Nadler. By eliminating, you mean just not funding it.
    Mr. Neufeld. So they weren't funded at all--no, no, no. 
What happened is he gave them the funding but they no longer 
had, as a condition of receiving the funding, have to either 
preserve the evidence or authorize----
    Mr. Nadler. Was that legal under the act?
    Mr. Neufeld. Excuse me?
    Mr. Nadler. Was that legal under the act, or did the 
President break the law?
    Mr. Neufeld. No, no, no, the President--through the 
President's DNA Initiative, which was basically appropriating 
money--ignored the original authorization willed by Congress 
that said that these four pots of money would be conditioned on 
preservation and access, and said we are just going to give you 
the money without the condition.
    I don't know anything about congressional authorizations 
and appropriations that I would take a step----
    Mr. Nadler. Okay.
    Mr. Chairman, can I have unanimous consent for 1 minute for 
one question to Mr. Hagy?
    Mr. Scott. Without objection.
    Mr. Nadler. Thank you.
    Mr. Hagy, you just heard Mr. Neufeld say the Administration 
gutted the law by ignoring the incentivization. Can you tell me 
why and what you will do to fix that?
    Mr. Hagy. I can't tell you why because I am not familiar 
with the parts of the legislation in 2004. I wasn't involved in 
the initiative.
    Mr. Nadler. Can you get back to us on that?
    Mr. Hagy. I can.
    Mr. Nadler. On the specific statements that Mr. Neufeld 
made about we gave incentives in the law for access to DNA and 
for various other things, the Administration made an end run 
around that by removing the incentives, and what you plan to do 
to obey the law by changing that end run.
    Mr. Hagy. I will get you an answer to that.
    Mr. Nadler. Thank you.
    I yield back.
    Mr. Scott. The gentleman from Alabama, Mr. Davis, I think 
was here next.
    Mr. Davis. Thank you, Mr. Chairman.
    Mr. Neufeld, let me have a conversation with you, if I 
could, about a case in Alabama that caught my attention. It 
involved someone named Thomas Arthur. You are aware of that 
case, I know.
    Mr. Neufeld. I am aware of it.
    Mr. Davis. Most of the questions are going to be coming to 
you, so you might be better leaving your mike on so you won't 
have that keep happening to you.
    I know the Innocence Project has gotten involved in this 
case, and it caught my attention for two reasons.
    These are the facts. There is a death penalty defendant in 
Alabama who was convicted in 1982 of a rape-murder, and at the 
time he was convicted DNA tests were not widely available in my 
State, and he has never had the benefit of a DNA test.
    He has argued that the State should conduct these tests 
under Alabama law. The Governor of the State has enormously 
broad authority in any matters for which he may issue a 
commutation or pardon. Actually, even the Attorney General of 
Alabama concedes that the Governor has the legal authority to 
order DNA testing.
    The Governor has declined to do that, and it caught my 
attention because--I would like unanimous consent, Mr. 
Chairman, to introduce into evidence a Birmingham--or to put 
into exhibit, rather, at the hearing--I am used to my courtroom 
days--a Birmingham News editorial dated Thursday, November 29, 
2007, ``DNA Testing for Arthur.''
    [The information referred to follows:]

    
    
    Mr. Davis. It is interesting because, candidly, it is the 
only time I recall the Birmingham News ever criticizing the 
Governor of Alabama. They are a very, very, very, very, very 
strong supporter of his.
    And the only time I have ever seen them criticize him on 
their editorial pages was over his refusal to order DNA 
testing.
    So I want you to talk with me a little bit about, first of 
all, a broad proposition. Is there any cost to the criminal 
justice process in terms of efficiency--is there any unusual 
burden that is imposed from a State ordering DNA tests for 
someone who never received them?
    Mr. Neufeld. Well, first of all, you are absolutely right 
about Alabama. Alabama is one of those States, for instance, 
that doesn't have a statute authorizing post-conviction DNA 
testing.
    And so the only way that somebody can get post-conviction 
DNA testing, even if they are on death row in Alabama, is if 
the Governor on his own decides to do it.
    And so we went to the Governor and asked him to exercise 
that authority, because we don't know if the man is innocent or 
guilty, but DNA can answer that question.
    Mr. Davis. And there is no dispute about his authority. He 
said he didn't have it, but the Republican Attorney General 
says he has it.
    Mr. Neufeld. No, he has the authority, okay? And obviously, 
everybody wants to get to the truth, or you would expect that 
everybody would want to get to the truth.
    The consequences of doing DNA testing financially only err 
to the benefit of the State. Obviously, if you have the wrong 
guy, you are not going to have to pay to house him in a prison 
any longer.
    If you have the wrong guy and you can do DNA testing and 
get a CODIS hit and identify the real perpetrator who is out 
there on the street committing other violent crimes----
    Mr. Davis. Give me a number, just to put it in perspective. 
How much is a DNA test, or how much would a DNA test cost for--
--
    Mr. Neufeld. In that case, it would be a couple thousand 
dollars, in that case, given the nature of the evidence. And we 
have offered to pay for it as well, so it wouldn't even be an 
expense of the people of the State of Alabama--but simply 
refuses.
    Mr. Davis. What is the Governor's basis for refusing?
    Mr. Neufeld. The Governor's original basis for refusing was 
that he didn't want to delay the execution.
    Mr. Davis. It has already been delayed.
    Mr. Neufeld. Well, once the Supreme Court decided to take 
up the issue of lethal injection, and he knew it would take 4 
months at least before that was decided, it would only take 4 
weeks to do the testing, he then didn't offer another 
justification.
    Mr. Davis. Because it has been delayed. The Supreme Court 
has delayed it. They delayed it last December. So is there any 
reason why the State couldn't conduct the test now in the 
interim?
    Mr. Neufeld. All he has to do is authorize it.
    Mr. Davis. Let me just end with this observation. I differ 
from some of my colleagues on this side of the aisle. I am a 
supporter of the death penalty, and that puts me in the 
minority on this side of the aisle.
    But when I look at a case like this, I am compelled to make 
an obvious point. If we can put in place a more regular 
procedure at the State level and incentivize States to do it, 
Congress can incentivize States to put in place a more regular 
procedure to allow, certainly, capital defendants to receive 
DNA testing when it was not available at the time of original 
conviction, that strikes me as not an unreasonable course of 
action--in fact, it strikes me as a reasonable course of 
action--I suspect--Mr. Chairman, if I can just finish this 
point up, I suspect the reason that it hasn't occurred is that, 
you know, those of us in the political world don't want anyone 
to say that we are soft on crime, we don't want anyone to say 
well, we are trying to provide some delay in the criminal 
justice system.
    But it strikes me a $2,000 test that would have the effect 
of either exonerating someone or at least possibly casting a 
major doubt around his case is not a major burden to the 
system.
    And your point, Mr. Neufeld, I think is that if individual 
prosecutors have to make the decision, they can't always be 
counted on to want to reexamine their cases. If Governors have 
to make the decision, they can't always be counted on to 
reexamine decisions.
    So maybe we do have to have in place a procedure that is 
more hospitable, that doesn't require a political actor to make 
the ultimate decision on review.
    Mr. Neufeld. The only thing I would take issue with, sir, 
is that I don't believe it is a question of being soft on 
crime. For instance----
    Mr. Davis. I didn't say it was. I said that was what--let 
me finish my point.
    Mr. Neufeld. Debbie Smith, for instance, has been a 
longtime supporter of our efforts to get post-conviction DNA 
testing----
    Mr. Davis. Yes. Well, I----
    Mr. Neufeld [continuing]. Incentivize the States to do that 
testing.
    Mr. Davis. I am not sure if you didn't hear me or--I wasn't 
saying it was a matter of being soft on crime. The point that I 
was making was that that is often the fear, and I don't think 
you would doubt me that is often the fear, of people who 
decline to wade into these issues.
    I am trying to agree with you more than I am not. I am 
trying to make a very basic point that if we can put in place 
some kind of procedure with more regularity that doesn't 
require, as in Alabama, an ad hoc decision by a Governor or a 
prosecutor, it would seem to be in the interest of the system.
    I have no idea whether Arthur did or did not do what he was 
accused of doing. There is evidence on both sides. But it would 
seem that the State does have some interest in a $2,000 test to 
find out.
    Mr. Gohmert. Would the gentleman yield?
    Mr. Davis. Yes.
    Mr. Gohmert. I would submit that this former mean, tough, 
law-and-order judge would be glad to co-sponsor legislation to 
work on that with you, if you were interested.
    Mr. Davis. Well, I appreciate the gentleman's 
thoughtfulness.
    Mr. Gohmert. I might give some cover for anybody that is 
worried about political----
    Mr. Davis. Well, I appreciate the gentleman's 
thoughtfulness, and I have never considered him to be mean or 
ornery anyway. [Laughter.]
    Mr. Scott. The gentleman's time has expired.
    The gentleman from New York?
    Mr. Weiner. Thank you, Mr. Chairman.
    The Chairman and Ranking Member asked the seminal question 
on the legislative fund, and I am going to try to endeavor with 
some questions to answer it.
    The first question was how much money is necessary. Part of 
the problem we have always had with this issue is the general 
reluctance of law enforcement agencies that have backlogs to do 
press releases trumpeting that fact.
    So when we originally passed the first legislation ever to 
fund DNA testing by Congress, one of the things that was 
included was a study to go and take a look. And even that study 
that came up with this number, 542,000--it didn't say this 
police agency has this much, this one has this much, this one 
has this much.
    And it did comment about how reluctant some agencies were 
to talk about it. And as Mr. Neufeld's organization knows, 
sometimes they are reluctant to even admit that they are not--
that they are reluctant to admit it.
    You know, it is getting them to say we have got this--it is 
not something a lot of sheriffs' departments want to talk 
about.
    We also learned in that study a couple of interesting 
things. We learned that in England their average start to 
finish, when they take the piece of evidence, submit it to the 
lab, until they get a result back is about 33 days. In the 
United States, it is 30 weeks. So that is the difference.
    And that is even assuming that you have had a law 
enforcement agency that is really fired up. They get the thing, 
and it doesn't sit.
    We also have the experience of New York where we had, in 
the early--in the late 1990's, almost a 6-year backlog, when 
you literally had kits sitting like shoe boxes in a vault in--
several of them, actually, in Queens.
    Literally, each one of them had a number. It represented a 
woman--in most cases, a woman waiting for justice in their 
case. And they, to their credit, didn't wait, got some Federal 
money, but mostly city and State money, and then went to work 
on trying to clear out the backlog, and they have done it.
    But I want to ask Mr. Hagy and--and, Mr. Marone, you can 
jump in, too--a couple of things that I am going to be offering 
in the next version of this bill that perhaps Mr. Gohmert and 
Mr. Scott would be interested in.
    And I just want you to answer as briefly as possible 
whether you think it would help improve the backlog. And these 
are things that aren't in the current law that perhaps they 
should add.
    One, should we give priority to labs with demonstrated 
training and personnel needs, meaning labs that are doing their 
best but can show that they are overburdened, meaning it would 
incentivize them to say, ``Here is our backlog, here is why we 
need it?''
    Would it help to clear the backlog if we gave more money 
and more priority to those labs?
    Mr. Hagy. You are asking me?
    Mr. Weiner. Yes.
    Mr. Hagy. Yes, we do that. As we do our formula grant 
program, which is the largest portion of the DNA money, they 
actually apply.
    Mr. Weiner. Right.
    Mr. Hagy. They give us information on what they are doing. 
But I do think if--we do it by needs. It is generally a formula 
grant, but we do see a budget.
    Mr. Weiner. No, I understand, but the idea was to give your 
priority to those labs in the grant-making process.
    Mr. Hagy. Yes.
    Mr. Weiner. The second thing is expand the eligibility of 
funding to cover salaries for existing employees.
    You know, frankly, you are competing--you know, there are 
salary needs for employees that are already on the books, not 
just the need to hire new folks, meaning as salaries rise, as 
competition gets higher for technical skills, to expand 
eligibility for those.
    That is the second thing. Do you think that might help?
    Mr. Hagy. Salaries are something we cover as well.
    Mr. Weiner. The next thing is--but these are all things 
that are not in the present Debbie Smith Act that we would add 
as the next evolution.
    Next, add some money for grants for technology. You know, 
one of the things that is happening is bar code technology that 
really does help speed the English system--if you get that type 
of technology, and you get labs to invest in that, not just 
keeping more people pounding away at the same technology, do 
you think that might help with the backlog?
    Mr. Hagy. Absolutely.
    Mr. Weiner. The next is a technical thing. Under the 
present law, the Attorney General has to sign off in advance 
that a State provides post-conviction testing and biological 
evidence before States are eligible to get some grants.
    Would it not be, as a technical matter, sufficient to have 
that process going on, that approval process going on, and 
still let them ramp up with some Federal money, and worst comes 
to worst, you just say, ``You don't get next year if you don't 
meet certifications?''
    This is something Mr. Marone might be able to comment on.
    Mr. Hagy. Yes. This year we gave an extra month--when we 
reformed this post-conviction in trying to improve the process, 
we gave them extra time to work on getting the actual 
certification.
    We go to the Attorney General, because these are State laws 
and practices they are speaking to, and they are most of the 
time the most appropriate person to gather----
    Mr. Weiner. But a few States have said to me that it is a 
little bit of a headache that they are waiting while that A.G. 
process is going on.
    Next I want to talk to you about a couple of things, 
relatively small things, that I think would not only add to the 
cases that Mr. Neufeld has and prove experiences of victims 
like, unfortunately, Ms. Smith has.
    Oughtn't we be ramping up a little bit the sexual abuse 
nurse examiners that need to be out there, the experts that sit 
in hospital emergency rooms that are on call for police 
agencies, that realize that dealing with women who are victims 
of sexual assault not only have very important emotional needs 
as victims of crimes, but also there are specific forensic 
things that you need to do to collect information for those 
women?
    Would it not be helpful this time to ramp that up a little 
bit, so it is not just something that you find in big cities, 
but in small towns as well?
    Mr. Hagy. I can speak to how important that is, and we 
actually are with the Office on Violence Against Women at the 
U.N. as we speak, presenting a tool that we formed together.
    It is a practicum as well as a C.D. on how to do sexual 
assault forensic exams and actually improve that process, not 
only to help the victim but to lead to convictions of innocent 
people--I mean guilty people that have done these acts.
    And that is actually both our office and the Office on 
Violence Against Women presenting that tool, which is amazing, 
and that is----
    Mr. Weiner. And let me add one other thing.
    And I appreciate the Chair letting me run a little over.
    The other thing is R&D into DNA technology. You know, we 
talked a little bit about bar codes and things like that, but 
you know, it strikes me that if we took a fraction of our R&D 
budget for some things and just put it toward trying to figure 
out ways to mechanize the system a little more--we need the 
next big advance.
    And frankly, the private sector is not getting incentivized 
to do it, because there is such a drip, drip, drip of dollars 
that people are putting it to getting as many tests as they can 
get done with the existing people.
    If you create an R&D fund that says to technology firms, 
``Go out and try to improve this,'' I think that that would 
help a great deal.
    And if I can take one additional moment just to ask Mr. 
Neufeld about one case that captured a lot of our attention in 
New York, isn't there also a problem of DNA and evidence of all 
sorts sitting in completely disorganized, uncategorized boxes 
and bins in a lot of places?
    You had a fairly famous case that was tragic of having to 
go back to--of a piece of evidence that you knew existed, but 
the police agency--and I am not sure--I don't remember which 
one it was--frankly just couldn't find it, for years and years.
    And they kept telling you, ``Court order, court order, 
court order,'' and they kept saying, ``We can't really find 
it.''
    Is there a way that we--using this popular hook of DNA, 
which everyone looks at through their own lens--say let's also 
figure out ways either to require agencies to retain evidence 
better or to incentivize them?
    How would you recommend we do that?
    Mr. Neufeld. The easiest way to incentivize them is the way 
that you initially wanted to do it in 2004 but then, 
unfortunately, with the end run, it don't happen, which is to 
give the money to the States to do all this DNA testing, but 
simply condition it on two things.
    One is come up with a kind of preservation procedure--the 
bar coding, for instance, that you just described a moment ago, 
is fantastic.
    But don't just do it prospectively. You have got to do it 
with the 10,000 items that are currently sitting in your 
property clerk warehouse, because if you don't do it with those 
items, not only will you not exonerate people, but you are also 
depriving your cold case units from reopening old cases.
    So obviously, you want to incentivize that. Congress can 
incentivize that. They should do it.
    And that is why poorer States, you know, like Alabama, for 
instance, don't have a preservation statute, don't have a DNA 
access bill either, because they need the money. They need the 
basic money for infrastructure that you are describing.
    But if Congress can appropriate those kind of funds, yes, I 
think it will all happen.
    Mr. Weiner. I thank you, Mr. Chairman.
    Mr. Scott. Thank you.
    Mr. Marone, how often do you get cold hits?
    Mr. Marone. Cold hits, lukewarm hits, 40 a week, 40 to 50 a 
week.
    Mr. Scott. And if you had----
    Mr. Marone. Excuse me, a month, 40 or 50 a month.
    Mr. Scott. If you had more of these in the database, you 
would get more cold hits.
    Mr. Marone. We saw a significant increase as the database 
went from 100,000 to 250,000. We saw a significant increase in 
the number of hits. Obviously, the bigger the database you are 
looking at, the more chances you have to match things.
    Mr. Scott. Mr. Neufeld, are John Doe indictments helpful?
    Mr. Neufeld. John Doe indictments are very helpful. They 
have obviously been very helpful to prosecutors, and in a good 
way, because you don't have the statute of limitations 
problems.
    You have DNA. Obviously, if it is a rape case and it is 
collected in the right way, it is the pivotal piece of 
evidence.
    You do a DNA profile. You get it. You run it through CODIS. 
You don't get a hit, but you know this is the perpetrator. You 
indict the DNA profile. And if and when you identify the person 
that goes with that profile, he can be prosecuted.
    Mr. Scott. How often are John Does identified?
    Mr. Neufeld. I am sorry?
    Mr. Scott. Do you know how often John Does are identified?
    Mr. Neufeld. I don't have that information, sorry.
    Mr. Scott. You and the Innocence Project hear from a lot of 
people who claim to be innocent. What portion of the people who 
claim to be innocent do you find are actually innocent?
    Mr. Neufeld. Well, that is a good question. In about one-
third of our cases that we take on--we get about 3,000 requests 
now a year for post-conviction DNA testing, but it can take 
many years before we actually get to do the testing.
    In one-third of our cases, we have to close them out 
because the evidence has not been preserved in the intervening 
years.
    But in the cases that actually go to lab and we do the 
testing, it turns out that the DNA testing exonerates people 
about 50 percent of the time, and about 50 percent of the time 
it confirms their guilt.
    Some people might wonder why are you doing it if it 
confirms guilt 50 percent of the time. It is a good thing to 
confirm guilt.
    But on the other hand, if we are getting an exoneration 
rate of 50 percent, that is extraordinarily high also. Who 
would imagine that 50 percent of the people who write to us, 
where we then locate the evidence and go to lab, actually end 
up being exonerated by the testing?
    Mr. Scott. Are there chain of custody issues?
    Mr. Neufeld. In terms of the integrity of the evidence?
    Mr. Scott. Right.
    Mr. Neufeld. In sexual assault cases, there is no real 
chain of custody issue at all, because there are internal 
controls that are part of the DNA test.
    When you are talking about the rape kits that Debbie Smith 
was talking about, for instance, the rape kits are a mixture of 
DNA from the victim and from the assailant.
    And they can actually differentiate, if you will, in these 
laboratories between sperm DNA and all other kinds of DNA, so 
first of all, when you find this kit 20 years later, and it 
could be wedged behind some prosecutor's desk, the first thing 
you want to do is when you do that separation, does the non-
sperm fraction match DNA from the reference sample taken from 
the victim.
    If it does, you have got the right case. If it doesn't, you 
have got the wrong case, and that answers your question.
    Secondly, let's look at the sperm. It is sperm DNA, okay? 
If it was me, if I was the real perpetrator, there is no way 
that science has figured out that I can get in there and 
somehow separate and extract my sperm out of that mixture and 
then substitute somebody else's sperm to make it look like they 
did the crime.
    So those two internal controls, by its very nature, give 
DNA a kind of integrity that other types of forensic evidence 
simply lack.
    Mr. Scott. Mr. Marone, is there a problem with preservation 
and deterioration of the evidence?
    Mr. Marone. No, sir. Once the materials have all been 
dried--and that is the key, that they are dry. And I am 
assuming we are not talking about blood tubes, but the swabs 
and such, slides.
    Essentially, office environment, room temperature, with a, 
you know, decent humidity--what you have to stay away from is 
high humidity, warm temperatures.
    But essentially, like what we are in here now would be 
certainly appropriate to be able to store evidence for a 
significant time period.
    I would like to address the one thing that Mr. Neufeld 
spoke about. One of the biggest issues we see with some of 
these post-conviction testing is that although we might be able 
to get results, you are not getting full profiles from the 
crime scene samples, and quite often you are getting not full 
profiles from either the victim or the suspect.
    And what is problematic is going back and trying to get new 
good samples from those individuals, especially with the 
victims, who really don't--you know, they many times don't want 
to have to go through that all again.
    So it is very problematic. It is a touchy issue to go back 
and talk to the victims of cases that are, you know, 15 years, 
20 years old.
    Mr. Scott. Mr. Neufeld, you mentioned Alabama. Is there a 
right to post-conviction evidence now, to test the evidence?
    Mr. Neufeld. No. We got a decision from the Ninth Circuit 
Court of Appeals 5 days ago saying there is a constitutional 
right to post-conviction DNA testing. There are three other 
circuits who share that position. There are one or two circuits 
who disagree. We will wait and see what happens.
    Mr. Scott. Does the Effective Death Penalty Act serve as a 
barrier? Because under that, you have to show clear and 
convincing evidence of innocence, which you don't have until 
the test is done.
    Mr. Neufeld. Well, the Effective Death Penalty Act has been 
an obstacle to a lot of types of post-conviction relief that 
people seek, including DNA testing.
    The hope is, in part, that the U.S. Supreme Court decision 
last year in the House, which said that there is something 
qualitatively different about DNA and other types of new 
evidence, will move Congress in the direction of removing some 
of those obstacles created by AEDPA and make it easier for 
people to get DNA testing.
    Mr. Scott. Mr. Marone, is there a--are there any problems 
in the conforming State-by-State what people are--the profiles? 
Are the tests done in Virginia comparable and compatible with 
the tests done in other States?
    Mr. Marone. Absolutely, sir. There is no problem with 
compatibility nationwide. In fact, there are searches that are 
done internationally.
    Mr. Scott. Any problem with false negatives? If you do a 
test--if somebody claims they are innocent, if you do a test 
and get a result, is it possible for it to be a false negative?
    Mr. Marone. I would never say never, but I can't think of a 
particular situation where that would be applicable.
    As Mr. Neufeld said, you have an internal checks and 
balances system with the cases that you are looking at.
    Mr. Scott. Would there be any value to a central testing 
lab where people can send samples from across the country to a 
central lab?
    Mr. Neufeld?
    Mr. Neufeld. You know, it is funny. Historically, there was 
one. Before all the States got money to open up their own 
laboratories, the FBI had a central repository and started 
doing testing in 1988, but quickly became overwhelmed, and the 
backlog was much worse than it is today.
    And the determination was made that by having this process 
localized in the States and cities, you are going to have much 
better throughput than you would if you have one central 
laboratory.
    Mr. Marone. The key, sir, is to have them all working off 
the same sheet of music.
    Mr. Scott. The gentleman from Texas?
    Mr. Gohmert. Thank you.
    Well, I am following up on that line. I know in our court, 
in my court back in Texas, if you feel like you have got a 
perpetrator--a prosecutor does--well, everybody is interested 
in getting results as quickly as possible.
    And you know, delays of 90 days may not seem much to some, 
but if you are really wondering if this is probable cause here, 
then it means a lot of difference whether it is 90 days or 180 
days.
    And so what seemed to happen there is, you know, the 
prosecutors would see we have got a State lab that can do this 
more quickly, a DPS lab, or will the FBI lab help, so I was, 
different cases, hearing from the FBI lab folks and in some 
other cases DPS lab people in Texas, whoever could get to that 
case the quickest.
    And so you know, after hearing so much difficulty from our 
witnesses putting their finger on exactly how we can get the 
greatest good done by this law, I am wondering well, are we 
back to saying, ``Maybe we need localized FBI labs,'' where we 
can do the greatest good?
    And the problem with training programs, Federal dollars--
well, you know, do these need to--Federal repository, FBI 
labs--do we need those more localized and just let those do it, 
if we have got a problem with getting people properly trained 
to do the work?
    So let me ask my friend from A&M, what percentage of DNA 
tests in the United States are currently being done by FBI 
labs, do you know, or DOJ labs?
    Mr. Hagy. Yes, I don't know the answer to that. I mean, 
there is 100 and some--80--FBI labs that can enter into CODIS 
that are qualified, and then there is State labs, so I could 
try to work on an answer for you to that. I don't know that off 
the top of my head.
    But just to your other concern about what really works, 
what we really look like--and back to Congressman Weiner's 
point about technology--this high throughput technology, as 
well as the process research that we do--and we do as much as 
we can on the general--not only in DNA, but general forensics 
as a whole, can really have a tremendous impact on the labs' 
ability to get those DNA samples tested.
    So we really try to start with that, those processes. 
Training is good, but you do have turnover, and you continually 
have to train. And buildings are good and all that. But I think 
a real focus on the R&D technology and those types of processes 
could really help move all of the labs.
    One other thing that--just while I have got--just a quick 
chance on the things we are talking about, any time we use 
money to incentivize behavior--which we do; I mean, that is a 
very important part of our grant programs--but that adds 
restrictions to the money.
    So we always have to balance what we try to do with the 
money and, obviously, getting it to the local governments and 
making sure they can do it. So we always try to balance that as 
a grant maker.
    Mr. Gohmert. Well, and that brings up another issue I was 
concerned about. I appreciate my friend from New York actually 
doing some concrete thinking that not everybody always does, 
but--on trying to figure out what can we put in the law to make 
it better, make it work, what language? Will this work, and 
will this work?
    But I would only submit that what I have seen when we 
provide incentives or priorities to labs with a demonstrated 
need, it means often times they are doing a sorry job, they are 
taking forever, and throwing money at labs that have some real 
problems doesn't necessarily fix the problem, because sometimes 
it is the personnel and money is not going to fix it.
    It is just going to incentivize more bad work, whereas it 
seems to me when you find labs--maybe they are understaffed but 
they are doing good quality work, doing it in a timely manner, 
and maybe that is where we need to put some money.
    But I appreciate the efforts at trying to innovate and come 
up with places to fix this law.
    And I would make one other observation about expert 
testimony. It seems like we do have some experts that will go 
around, hired guns. What normally happens with bad experts is 
they are not intentionally perjuring themselves. They are just 
doing bad work and shoddy work.
    And you have got people at risk. Sometimes you find people 
who have perjured themselves. But when you find people who have 
done shoddy work and that has been shown to happen, well, as 
the U.S. Supreme Court has made clear, the judge has an 
obligation as the gatekeeper to determine whether somebody is 
truly an expert and should be allowed to testify.
    And we do need to have more judges that make the finding, 
``This guy, you know, is a snake oil salesman. He is not going 
to testify in my court and put people at risk when he has done 
that way too freely in the past.''
    And I wonder about the term ``false negative'' also. I 
mean, do we have false negatives? And I am wondering if that 
ends up being like can somebody crazy know that they are really 
crazy.
    You know, if you have got a false negative, how do you 
really know it is a false negative. And I don't know if there 
is a good way to know that.
    Mr. Marone. Let me attempt to answer that. My answer would 
be I don't think you can get a false negative, but I would 
never say never, because things happen.
    Mr. Gohmert. How would you know if you had a false 
negative?
    Mr. Marone. Well, you would have a lot of controls, and you 
look at the process. You have got positive and negative 
controls in the system. You have got reagent blanks. You have 
got blanks all over the place.
    And if you were going to find something that would come up, 
you would expect to see it in those blanks where, you know, you 
are not supposed to see anything.
    So you have got a number of controls that would----
    Mr. Gohmert. But a false negative is probably going to 
create a reasonable doubt once that comes into evidence, and it 
would come into evidence because that would be exculpatory 
evidence.
    Mr. Marone. Well, yes, if you have a result that is not 
supposed to be there, my estimate would be you would pick that 
up as a whole process, and it would be a question on the 
examiner's part what--they may not know what they have, but 
they know they don't like what they have, and so probably just 
kind of inconclusive at that point with the results that you 
have.
    One of the things I would like to address--and it is, as 
you said, the seminal question. What is it going to take to fix 
this? And that is something that, as I said, the National 
Academy has been working with, and it is truly a complex issue.
    I will stick with the public testimony so I don't step on 
anybody's toes. It is very comprehensive. You need training 
examiners. You need certification of examiners. They meet 
certain minimum criteria.
    You need accreditation of laboratories. Every laboratory 
meets a certain standard. And that gets to your question of are 
they doing bad work or are they just doing good work but not 
enough of it.
    You need educational opportunities. Start with the pool. 
Make sure the educational programs are supplying the examiners.
    You need research and support at all those levels. You need 
more training and certifying of attorneys and judges to 
understand scientific aspects. So you are looking at all those 
things.
    It is not a single, quick-fix thing. You need more 
facilities, more people and everything. So it is an extremely 
complex program. You asked us to give a top of the head in 5 
minutes.
    This is an issue that people have been dealing with--if you 
looked at our report, the 1994--that folks did, it said the 
same thing as the report that was done in 1999, and the same 
thing of a report that was done 2 years ago with the 
forensics--what is called the 180-day study. And these are the 
issues that the National Academy of Sciences is dealing with.
    And that gives you a general direction as to where we need 
to go. There are a number of things. It is not a simple, quick 
fix. It is an overall national process.
    Mr. Gohmert. Well, and I understand that, but just to 
correct one thing you said, I didn't ask for an off the top of 
your head. Some of us have more off the top than others. But I 
didn't ask for an off the top of your head in 5 minutes.
    I asked for concrete suggestions. And I also pointed out to 
everybody on this panel--it doesn't stop in 5 minutes. It 
doesn't stop at this hearing.
    If you have got suggestions, everybody up here is 
interested in fixing the law, and we would welcome your input, 
not just here but well into the future.
    Mr. Scott. Thank you.
    Dr. Hagy?
    Mr. Hagy. Just one comment on some of the things we have 
tried to do. We combined our capacity and casework grants to 
make it easier, make it more flexible for our grantees, so we 
did that last year when they used to be two separate grants, to 
make it a little bit easier.
    We have also extended some of our grants to allow property 
crimes, which you--talk about a growing backlog. We are going 
to have some studies coming out about the effectiveness of DNA 
used in property crimes.
    And it is going to show some tremendous results, and so we 
are also allowing--some of the bigger labs are caught up on 
their backlog on their violent crimes, and they are moving into 
that--some of the bigger labs. So we are doing some of that as 
well.
    Mr. Scott. Thank you.
    The gentleman's time has expired.
    The gentleman from New York?
    Mr. Weiner. Thank you, Mr. Chairman.
    Just so I understand, there are for-profit labs that are 
unaffiliated with the government, right, that do this work?
    Mr. Hagy. Private.
    Mr. Weiner. Have we learned any lessons? Are they better?
    Mr. Marone. I would say they are no better, they are no 
worse. Because they have to meet the same Federal criteria that 
public labs meet, they do the similar kind of work.
    Mr. Weiner. Is it good business? Are there more people 
going--are there big companies investing in this? Are there 
publicly traded outfits that do it?
    Mr. Marone. I found it not to be--from what I hear from 
those companies, not all that profitable to do. There is an 
awful lot of man-hour intensive type work, and because all 
these--or the majority of these cases are done grant-funded, 
they have to do it with very tight overhead.
    Mr. Weiner. But if you have--did you want to weigh in on 
this, Peter?
    Mr. Neufeld. Just for 1 second on that, you know, we are 
also a user group. We go out to lots of laboratories all over 
the country, government laboratories and private sector 
laboratories, to do post-conviction DNA testing.
    And I have to tell you, in all candor, that they are not 
all the same, that some are a lot better than others. There are 
some government laboratories that are better than other 
government laboratories, and there are some private 
laboratories that are great and other private laboratories that 
are awful.
    Mr. Weiner. If you had a client who came to you--and I know 
this rarely happens in your line of work--that said, ``Money is 
no object, I am prepared to go out and get the best, fastest--I 
want it quickly, I want top-notch, I want the best,'' and they 
wrote you a blank check, can you go to your Rolodex and say, 
``All right, I am going to call this lab, get it back in a 
couple of days, and it is going to be bust-out great?
    Are there labs like that?
    Mr. Neufeld. No, unfortunately, the laboratories that we 
have found that do the best quality work have also been the 
slowest.
    Mr. Weiner. I guess that is not necessarily 
counterintuitive. I mean, maybe you expect it to be a little 
bit slow.
    Can I open up a can of worms as we end this hearing? There 
are no cops on the panel.
    Peter, maybe I can put you in the category of a civil 
libertarian. We arrest somebody for jumping the turnstile, and 
we now, in New York City, put them through the system, meaning 
we take their fingerprints and check to see if they committed 
any other crimes when they are arrested.
    Should we have arrestee--should we take DNA from arrestees? 
Does anyone have a position on that?
    And then obviously, if they are--you know, like a 
fingerprint--if you are found not to be guilty of the crime, or 
there is no hit on something else, you know, we can go ahead 
and destroy it. But who knows? Maybe we will find someone that 
jumped a turnstile also raped somebody.
    Do you have a position on that, Peter?
    Mr. Neufeld. Well, I mean, first of all, as an 
organization, we do not have a position on it. Personally, I 
mean, obviously, in any situation like this, one has to do a 
cost-benefit analysis.
    There is no question that if you had a universal database, 
if you had DNA testing from every Member of Congress, for 
instance, you would probably solve more crimes, okay, even 
though they haven't been arrested, much less convicted of 
anything.
    That is the reality. That is just simple statistics. And no 
one would disagree with that. But for certain reasons, we 
choose in our society to exclude certain groups of people from 
having to give up that privacy right, whether they be Members 
of Congress, or people who have been arrested and are entitled 
to the presumption of innocence, or people who are simply 
stopped on the street, not even arrested, okay, like they are 
in Great Britain--if you are simply stopped and not even 
arrested, they can take your DNA sample.
    So we as a Nation will have to decide what we are willing 
to give up in order for certain benefits. That national 
discussion has not been had yet.
    Mr. Weiner. Well, to some degree, it has, because we take 
fingerprints when people are arrested.
    Mr. Neufeld. Well, no, but we haven't decided as a Nation 
do we want to have a universal DNA database.
    Mr. Weiner. No, no, but I am----
    Mr. Neufeld. But, Congressman, you have to do that. And the 
reason you have to do that is you put on the one side of the 
scale solving crime, and if that is your goal, and it is simply 
to solve crime, there is no question, if you have everybody's 
DNA in the databank, you are going to solve more crime. There 
would be no disagreement in the country.
    Yet we don't do that, so there must be certain concerns 
that we have----
    Mr. Weiner. Well, wait a minute. Hold on a second. When you 
are arresting someone, you are trying to solve a crime.
    Mr. Neufeld. Well, you are trying to solve----
    Mr. Weiner. Right? So that specific task that you are 
pursuing is to solve a crime. I am not saying, ``Go out and do 
everyone.''
    But right now, I guess what I am puzzled by is are we 
making a difference--a distinction where none really exists 
when we do take identifying information from someone when they 
are arrested, and then just like if they are found not to be 
the guy, we destroy it and move on--I mean, I guess I am 
putting you in the position of kind of hashing this out with 
me.
    But I mean, we have kind of already made the decision as a 
society we do want to take information when we arrest somebody.
    Mr. Neufeld. Well, one of the concerns--and if you want, I 
would be happy to have this discussion any time and any place.
    Mr. Weiner. Right.
    Mr. Neufeld. But I am not speaking for the organization. 
One of the problems and concerns in your State, for instance, 
and my State, New York, is that our Attorney General did a 
study and discovered that, in fact, people of certain races 
were being disproportionately singled out for stops and 
arrests.
    And so there is a danger that if you are simply making an 
arrest the criteria or condition for DNA testing that you will 
have something called pretext arrests, and you will have a 
disproportionate number of black and brown people being stopped 
and their DNA ends up in the databank, whereas White people's 
do not.
    Mr. Weiner. Right.
    Mr. Neufeld. And that is why you are constantly doing that 
kind of cost-benefit analysis. I am not making it. I am not 
going to do it. We will have to have that bigger dialogue. But 
I don't think we are going to resolve that here.
    Mr. Weiner. Here.
    Are we going to resolve it here, Mr. Scott?
    Mr. Scott. Well, we have had a little bit of that before, 
because there used to be a line at serious violent felonies, 
and Virginia found that most of the people for which there were 
hits were non-violent crimes.
    Mr. Marone?
    Mr. Marone. Actually, the way the statute is written, it is 
just that. It is for arrestees.
    Mr. Scott. Right.
    Mr. Marone. For arrestees, it is for the serious felony 
crimes. In Virginia, that equates to about 12,000 arrestee 
samples per year. Of those 12,000, about 50 percent after a 
period of time are pulled back out, just as the congressman 
indicated. If it is null pros, if it is dismissed or whatever, 
pled down, those samples are pulled out.
    From 2003, with those numbers coming in over the years, 
there have been 400 hits on arrestee samples.
    Mr. Scott. Well, yes, but for people convicted of a felony, 
if you go to prison, everybody, regardless of the charge----
    Mr. Marone. Yes.
    Mr. Scott [continuing]. And it used to be it was only those 
in prison for the violent felonies, but then you expanded it to 
everybody. I am not sure exactly----
    Mr. Weiner. Will the gentleman yield?
    I mean, look. There are five States that still don't take 
it from all felons. And one of the questions that we have on a 
Federal level is the ability to solve a crime in Texas being 
hindered because people in New York make a decision to have a 
smaller group of arrestee samples.
    And one of the opportunities that we have with this 
legislation is to say, ``Listen, if you want to be part of the 
database, you have got to make sure that we are all sharing the 
same types of information so that we can crack these cases.''
    And I think that it is true, you know, we are on the 
precipice of a much larger discussion here. Mr. Hagy is exactly 
right. More and more information--little blood specks at a 
burglary scene are being added on the crime lab side.
    So this conversation is going to be thrust upon us, in some 
degree, how much we grow this universe. But I think at some 
point we are going to reach a point where--you know, and I 
agree with you, Mr. Neufeld, you know, the pursuit of what are 
called 250's in New York, must stop and frisk as a policing 
tool, has problems.
    But I am not saying don't--I am not weighing in on that. I 
am saying I think there are real problems with how you do it. I 
am saying that if you are going to take certain information 
from arrestees, should you take other.
    I mean, should you say to someone who is a felon, but a 
white-collar felon--I mean, I, frankly, think you should. I 
don't think since it is a--I think it is a distinction that we 
shouldn't make.
    But I thank you for the extra time.
    Mr. Scott. Mr. Hagy?
    Mr. Hagy. I was going to say our study of these burglaries 
and these property crimes are showing much more serious 
criminals are being caught as well. It is a limited study of 
about five cities and 500 cases in each city, but we are also 
finding that they have much more serious criminal records than 
just burglary.
    Mr. Scott. Thank you.
    The gentleman from Texas?
    Mr. Gohmert. Yes, I wasn't going to ask another question, 
other than asking that Mr. Weiner's original question, if we 
could get an answer, because I thought it was a good question, 
Mr. Neufeld.
    Not asking what the Innocence Project's position is, but as 
I understood him to ask originally, should we take DNA samples 
from people who are arrested? And as I got your response, it 
was, ``We need to have that national debate.''
    But I would like to know your answer to that question. Do 
you think we should take DNA samples from anyone who is 
arrested? Understanding it would not be an answer for Innocence 
Project, but just for Peter Neufeld, with all your experience.
    Mr. Neufeld. Yes, I have not fully thought out and resolved 
that issue, for two reasons. One is because I do think it is a 
much more complicated question, and I was trying to apprise you 
all of some of the complexities, okay, because you have to 
decide literally what is the priority----
    Mr. Gohmert. So your answer is you can't answer that at 
this point.
    Mr. Neufeld. Well, that is one. Two, okay, it is not just 
the philosophical issues and policy issues, but there is a 
fiscal issue. And the fiscal issue is you are talking to these 
folks today because they can't even deal with the backlog of 
cases of rapes and murders, okay?
    And if we can't--and I think we would all agree that the 
number one priority is getting----
    Mr. Gohmert. Okay, I understand that. I just didn't know if 
you had an answer specifically to that question.
    Mr. Neufeld. I do not.
    Mr. Gohmert. And because it is--that answer would then--if 
it were yes, then we would be looking at a bill to try to make 
sure that there was adequate repositories.
    Mr. Weiner. Would the gentleman yield?
    Mr. Gohmert. Sure.
    Mr. Weiner. One of the questions here is what drives what. 
It could be that as Congress or as States drive for more and 
more testing, it then creates more labs, it then creates more 
funding. And who knows what drives what here?
    And I happen to think of all the areas of the lab process 
that is most given to being mechanized and improved and speeded 
up, it is this idea, offender sample, which you have one 
standard for, and one standard swab, one standard slide.
    So you are right, we would have to make that decision. I 
think this larger--it is a larger philosophical and a moral 
question, and it is one that crosses party lines, about how 
much information do you want to--it is a civil--I mean, it is a 
big issue.
    And then how you preserve or don't preserve that 
information--and remember, unlike a fingerprint, you are 
getting a heck of a lot more information on that little piece 
of evidence. And do we want government having that, you know?
    And I mean, as you know, there is so much DNA around this 
room right now of Members of Congress. What a frightening 
laboratory this would be if it were ever opened up to the 
experts.
    Mr. Neufeld. Congressman, just to give you one additional 
piece of that puzzle, which is very complicated, for instance, 
in New York there are a number of laboratories--and across the 
country--for instance, you have a serial murder or a serial 
rapist, and so the police, as part of a proper investigation, 
will go out and ask hundreds of people to consent to give 
biological specimens so they can be excluded as the 
perpetrator, which will enable the police, then, to refocus 
their investigation.
    In Florida, for instance, when they had a serial rapist, 
several thousand--and they knew the assailant was a Black man. 
The police approached several thousand Black men in Miami and 
asked them to give samples. They all gave samples. They all 
consented. They were all excluded.
    And eventually, the police identified and captured the real 
perpetrator. But those several thousand samples, DNA samples, 
were never destroyed. And the rationale was, ``Hey, we got it 
legally. It is only being used for law enforcement purposes. 
What is the big deal?''
    Well, if you can accept that, which perhaps you do, then 
you can accept that maybe we should have a universal database 
so we wouldn't have to have racial distinctions or other kinds 
of distinctions. We will just have everybody's DNA on file.
    Mr. Gohmert. Well, and I appreciate that. Sometimes people 
come up here to preach. I really didn't want to ask questions--
and I think the key is Mr. Weiner's question.
    I am familiar with all the different sides and exactly the 
things you are pointing out. I understand the philosophical 
discussion. I can have that debate entirely by myself and have 
my wife come in and go, ``Who are you talking to?'' And she 
does that often.
    And so I can play both sides. But once we answer Mr. 
Weiner's question, then we can move forward with appropriate 
legislation to deal with the issue. And that is why I was 
curious, as a civil libertarian, as Mr. Weiner indicated, how 
you felt about that.
    I have got mixed emotions. Like I say, I can debate that 
from both sides. But I just wondered where you were, and your 
jury is still out. So thank you very much.
    Mr. Neufeld. And I debate with myself whether I am even a 
civil libertarian.
    Mr. Scott. Thank you.
    Let me make one further comment on Mr. Brooks' situation, 
having been exonerated. Yesterday the President signed the 
Second Chance Act which gives assistance to those who have been 
convicted of crimes job training and other kinds of things.
    The unfortunate thing is someone who has been exonerated 
may not be eligible for even those little provisions. There is 
legislation pending specifically to help exonerees.
    We are going to see if we can't move that along so that 
people in your situation don't get the worst of both worlds.
    So I want to thank all of our witnesses for their testimony 
today. Members may have additional written questions which we 
will forward to you and ask that you answer as promptly as you 
can so the answers may be made part of the record.
    Without objection, the hearing record will remain open for 
1 week for submission of additional materials.
    And without objection, the Subcommittee stands adjourned.
    [Whereupon, at 1:17 p.m., the Subcommittee was adjourned.]

                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
in Congress from the State of Michigan, and Chairman, Committee on the 
                               Judiciary

    The DNA initiatives of the Justice for All Act serve three critical 
goals: to identify the guilty, to ensure that the innocent are not 
erroneously convicted of crimes, and to exonerate the wrongfully 
convicted.
    While Congress has funded these initiatives and much progress has 
been made to achieve these objectives, I am very concerned that so much 
remains to be done.
    Let me identify three major shortcomings with the present system. 
First, although the Debbie Smith Act and other legislation intended to 
eliminate the backlog of DNA samples has resulted in more than 2\1/2\ 
million samples being registered, a significant backlog remains.
    As DNA technology has become more widely available, police 
departments are collecting increasingly more samples. Consequently, the 
backlog has remained almost level over the past several years, which 
hinders our first goal, identifying the guilty.
    The longer it takes to identify a violent offender, the greater the 
risk posed to society. The gentleman from Washington (Mr. Reichert), 
who headed the Green River Task force before coming to Congress, will 
likely describe how the Green River Killer remained at large for nearly 
20 years before the Task Force, using DNA evidence, proved his guilt. 
It's common sense: quicker data entry facilitates quicker matches of 
offenders to evidence collected from crime scenes, and less opportunity 
for violent criminals to remain at large undetected.
    Second, the backlog also undermines our second objective, 
eliminating the innocent as suspects. If police agencies cannot rely on 
the timely use of DNA technology, they waste scarce investigative 
resources pursuing innocent people as suspects.
    And let us not forget that, when an innocent person is accused of a 
crime, his or her life can become a nightmare. Besides the obvious 
threat of imprisonment, these individuals risk losing their jobs, and 
the support of family and friends.
    The backlog also undermines the third objective, to exonerate the 
wrongfully convicted. To date, more than 200 people in 32 States have 
been exonerated as a result of DNA testing, one of whom is with us 
today. Third, I am very concerned that the States have received none of 
the $7 million that Congress appropriated for post-conviction DNA 
testing grants under the Innocence Protection Act.
    The Justice Department advised us that a flaw in the language of 
the Innocence Protection Act was making it difficult to make the 
grants. So Congress passed a temporary clarification that the Justice 
Department recommended, also increasing the funding level to nearly $12 
million.
    But no amount can do any good unless it can be put to use. So I 
very much look forward to hearing from our Justice Department witness 
today about whether this temporary change has now facilitated funding 
for the States.
    If the temporary change is effective, we may need to make it 
permanent. If it is not working, we must find a solution that does work 
and implement it as soon as possible.