Good morning, Chairman Hatch and Members of the Committee:

My name is Charlie Baird. I presently serve as co-chair of the National Committee to Prevent Wrongful Executions. Because the Committee has not yet crafted its recommendations, I speak not for the Committee as a whole, but as a member of the Committee, and one who has years of direct experience with the Texas criminal justice system.

I am a former judge on the Texas Court of Criminal Appeals, the highest criminal court in Texas. I served on the court for eight years. In that time, I participated in more than 400 capital punishment appeals, and I reviewed numerous writs of habeas corpus from capital defendants and literally thousands of petitions and writs in non-capital cases.

In that judicial capacity, I authored many opinions which affirmed the conviction and sentence of death. I voted for many more opinions which did the same. And many of those defendants have in fact been executed.

Prior to my service on the court, I practiced law in Houston, Harris County, Texas.

In total, I have more than twenty years of direct experience of working in the Texas criminal justice system.

During my years of service, I came to realize what we all know – that the criminal justice system is fraught with problems – problems including convictions of innocent people, prosecutions motivated by racial bias, overzealous prosecutors and police officers, ineffective, incompetent and even sleeping defense attorneys, unreliable evidence and witnesses whose testimony is uncertain or derived from improper motives, and citizens excluded from jury service because of their race or gender.

My experience also tells me that most of those who work within the criminal justice system have the best of intentions. They want to do justice and to see that justice is done in every case. Sometimes they lack the resources to do justice. Sometimes they just make mistakes. And sometimes there are just bad apples. Whatever the reason, the criminal justice system should embrace technology that allows us to avoid mistakes, or to correct them when they occur, as they have in the past and inevitably will in the future.

The criminal justice system can be improved markedly with the passage of the Leahy-Smith-Collins bill. Please permit me to tell you why I feel confident in making that statement.

First, the legislation makes DNA testing available in cases where it is not presently available. This is very important because DNA can often determine the ultimate question in any criminal case, the guilt or innocence of the accused.

In Texas, and around the country, several inmates on death row or in prison have been exonerated through the marvel of DNA testing. Those innocent individuals were destined to a life of confinement or to be executed for crimes they did not commit. They now have their freedom – that is the gift of DNA.

However, as we know in Texas, oftentimes conclusive DNA testing which exonerates the defendant is not enough. In this instance, I speak of an inmate named Roy Criner.

Mr. Criner was charged with the rape and murder of a sixteen year old girl. The state’s theory of prosecution was that Mr. Criner was the sole perpetrator of the offense. Crucial to the state’s theory of prosecution was evidence that the semen found in the victim was consistent with Mr. Criner’s blood type. The jury convicted Mr. Criner and assessed his punishment at 99 years in prison.

When Mr. Criner’s case came before the Court of Criminal Appeals, I voted to affirm the conviction and sentence.

It is important to note that Mr. Criner’s trial occurred in 1990, before DNA testing was considered scientifically sound and accepted in most courts.

As technology improved and DNA became more accepted, Mr. Criner sought and eventually obtained permission to have the semen genetically tested. Mr. Criner’s family paid for this testing. That test exonerated Mr. Criner.

When the district attorney reviewed the results he was skeptical and insisted on another DNA test which would be performed by the laboratory at the Texas department of public safety. The results of that second test also exonerated Mr. Criner.

The trial court then conducted a hearing where both test results were admitted into evidence. Following that hearing, the trial court recommended that the Texas Court of Criminal Appeals, my former court, order a new trial for Mr. Criner.

However, six members of the Court of Criminal Appeals voted to deny Mr. Criner a new trial. Their reasoning was twisted, contorted and confused. Although I and two other judges dissented, we could not carry the day.

So today as I appear before you, in Texas we have a man incarcerated for the remainder of his life who has two DNA tests which conclusively establish his innocence.

While Mr. Criner has no remedy in Texas, the Leahy-Smith-Collins bill would encourage the state to provide a remedy. Moreover, the legislation would provide a federal remedy for state inmates if their particular state did not offer a remedy. The result is that under the Leahy-Smith-Collins legislation all inmates who are able to prove their innocence through DNA testing can gain their freedom.

Mr. Criner is not the only Texas inmate who has been exonerated by DNA testing. Kevin Byrd was convicted of rape in 1985. He was exonerated in 1997 when DNA evidence conclusively established his innocence. Even though Mr. Byrd spent twelve years in prison, because of DNA testing he is now a free man.

A. B. butler has also gained his freedom through DNA testing. He was convicted of rape in 1983 and served seventeen years in prison for a crime he did not commit. While DNA cannot give Mr. Butler back those seventeen years, DNA did secure his freedom.

Mr. Butler was pardoned by Governor Bush the day before the governor gave death row inmate Ricky Nolen McGinn a reprieve in order to secure additional DNA testing.

Mr. McGinn sought permission from the trial court to subject certain biological samples to current DNA testing. The trial court agreed that such testing was needed and asked the Court of Criminal Appeals, my former court, to order such testing. The court refused. At the eleventh hour, Mr. McGinn was granted a reprieve and the testing has now been ordered.

Whether this testing will exonerate Mr. McGinn or return him to the death chamber we do not know. What we do know is that serious questions were raised and those questions can only be answered by DNA testing. All Americans gain by ensuring, as much as humanly possible, that the right person is in custody. This is especially true when that person faces the ultimate penalty of death.

Paula Kurland, my colleague from Texas who serves on the national committee to prevent wrongful executions with me, and who is a victims’ advocate and mother of a daughter who was brutally murdered, has some wise words for all of us. “You can get out of a conviction but you can’t get out of an execution.”

The criminal justice system should embrace DNA testing because it has the potential of eliminating human error and conclusively establishing the guilt or innocence of the accused. This would be a great development. This development can only be guaranteed to all of our citizens with your help and the enactment of federal legislation that sets a minimum standard. States of course can set higher standards.

Where DNA is involved, the legislation must have two vital components. First it must permit access to the evidence. For this evidence to be accessible it must be preserved. And the defendant must have the ability to subject that evidence to testing.

In Texas, there is no right to post-trial DNA testing. It is left totally to the discretion of the trial judge.

In Texas, there is no duty to preserve the evidence for later DNA testing. Indeed, the evidence is routinely destroyed.

In fact, after Kevin Byrd was exonerated by DNA testing, the state secured orders for the destruction of fifty rape kits in fifty separate cases where the defendants are still incarcerated. Because this is permissible in Texas, those defendants will never have an opportunity to prove their innocence. [10/14/97, Dallas Morning News, pg. 13A, “Evidence that freed man seemingly kept by chance. Samples from old cases routinely destroyed.”]

Secondly, the courts must be open to receive this evidence. Too often legislatures or courts establish procedural bars which prevent this evidence from being considered. The doors of our courts must always be open to consider cases where a person deprived of his liberty can prove his innocence.

Our courts of law were established to do justice. Courts who close their doors to the innocent are courts of injustice and this must stop. The only way to insure that it does stop is the passage of federal legislation.

While we all recognize that DNA evidence can transform the human frailties of the criminal justice system to the certainty of science, we must also recognize that DNA is not present in every case. And in these cases, the criminal justice system must operate as designed – to reach a correct result through the adversary system of two attorneys competing mightily before an impartial judge and jury.

However, far too often, the adversary system breaks down because the defense attorney is not experienced, not competent or, in some cases, not even awake. The verdicts from trials where this type of defense representation occurs are not reliable and work only to undermine and destroy confidence in the judicial system.

This legislation will ensure that indigent capital defendants in all 50 states will have competent counsel. This legislation is especially important because it would establish a national standard for the representation of capital defendants. Establishing this national standard would guarantee that those who are charged with capital crimes will be effectively represented before society extracts the ultimate punishment.

This legislation is necessary to establish a national standard for representation. Presently, many states do not have statewide guidelines for the qualifications of counsel. And some states, like Texas, leave it totally up to the judge who appoints counsel to determine counsel’s level of competence. Therefore, in Texas where there are over 700 judges, each judge operates under his or her own definition of competent counsel that determines the quality of representation for indigent capital defendants.

This legislation would ensure that every indigent defendant, regardless of the locality of his alleged offense would receive qualified, experienced and competent counsel. This legislation fulfills the guarantees of the 6th Amendment to effective assistance of counsel to all indigents accused of a crime.

As the report of Professor James Liebman, released yesterday, tells us, the system is badly broken. This serves no one’s interest. The reforms I urge you to adopt will benefit victims as well as criminal defendants. No one -- and least of all victims -- wants the agony of retrials because of incompetent lawyers who make mistakes, who fail to present all the evidence, and who otherwise fail to make the system truly adversarial. No one wants a system that convicts the wrong person and lets the real perpetrator walk the streets, free to victimize again.

In closing, let me say that I, individually and not speaking on behalf of the National Committee to Prevent Wrongful Executions, support the goals of this legislation. I recognize that the legislative process is one of give and take, and the form the legislation might ultimately take is subject to great debate. However, I urge this committee to send to the Senate legislation that will permit the judiciary to embrace DNA evidence by providing access to relevant genetic material and having an avenue to have that evidence presented and reviewed in our courts.

Finally, I urge the committee to offer legislation that will fulfill the constitutional guarantee of effective assistance of counsel to all criminal defendants, not just to those who are wealthy enough to afford it. In America, liberty should not be determined by the size of the defendant’s wallet.

I look forward to answering any questions that you may have.

Thank you.