Mr. Chairman, Senator Hatch, Ranking Minority Member Leahy, and Members of the Committee, my name is Enid Camps, and I am a Deputy Attorney General for the State of California. It is my honor to be here today on behalf of Bill Lockyer, the Attorney General of our State.

I am an office coordinator on DNA issues, and I am the assigned legal advisor to the California Department of Justice DNA Laboratory. I primarily handle DNA cases at the appellate level. My cases have helped define the development of law on DNA admissibility in our State. On behalf of the Attorney General’s office I drafted, in conjunction with the State’s DOJ DNA Lab, the “DNA and Forensic Identification Data Base and Data Bank Act of 1998,” a comprehensive chapter of laws defining and governing the operation of our State’s DNA Data Bank program.

DNA Data Banks are the most significant crime-fighting tool since fingerprints because they enable us to solve otherwise suspectless crime by comparing the DNA from biological evidence left at crime scenes with blood collected from an enumerated class of convicted felony sex and violent offenders.

California law enforcement has long-recognized the importance of DNA evidence in solving the most serious sex and violent crimes, where the victims are disproportionately women and children.

In 1984, we first began data-banking blood samples from convicted sex offenders to help solve recidivist crime. We were in the vanguard of states using DNA evidence in criminal investigations and trials in 1989, with prosecutors relying on the work of private labs. Our own State DNA Laboratory began accepting cases in 1992.

Clearly, post-conviction DNA testing is an important forensic tool, as well. To date, attention has been focused on the concept of post-conviction DNA testing and the need for it. But as you know, this is only part of the equation. We believe the national dialogue now should move on to include the specifics of cost, of implementation, and a practical assessment of how this can best be accomplished. Fair and reasonable access to post-conviction DNA testing must be established in a manner that does not compromise the integrity of the criminal justice system, or undermine it financially.

We thank you for the opportunity to further the national discussion on this complex matter. California law enforcement is vitally interested in the post-conviction DNA testing bills now before you.

We have just cause for concern. The impact of any new post-conviction remedy (independent of new trial motions and habeas corpus) for inmates falls disproportionately upon our State. There are several reasons for this.

First, with an adult inmate population of 164,523, we have the largest number of prisoners in the U.S. (See U.S. DOJ, Bureau of Justice Statistics, April 2000 Bulletin: “Prison and Jail Inmates at Midyear 1999" at www.ojp.usdoj.gov/bjs/.) Other than Texas, no state has even half of California’s prison totals. Most states have far fewer. (Id.) Clearly, California’s potential number of convicted offender DNA testing requests is second to none, when looking at statistics, alone.

In addition, our State DNA laboratory already faces a significant, if not staggering workload, in part due to our long-standing collection of convicted offender Data Bank samples, the lack of attendant funding for sample analysis, and our commitment to fully using DNA evidence in criminal cases. California’s current backlog for DNA Data Bank samples is about 115,000. The FBI’s 1999 annual survey for DNA Data Banks lists only one state with a larger backlog.

Our State’s DNA Lab also has a current backlog of 150 pending cases, where our criminalists are analyzing evidence submitted by law enforcement agencies from nearly every California county. In addition, the State’s backlog of older unsolved and suspectless case evidence is substantial. For example, there are about 18,000 rape kits waiting to be analyzed by DNA techniques and eventually compared with our convicted offender DNA DataBase. Unfortunately, we are understaffed to handle even our present and foreseeable workload. Though we have funding for many additional analysts, we have not yet been able to hire them. State salaries for DNA analysts have not proved competitive enough for us to hire the personnel we need.

Accordingly, what may be merely difficult elsewhere impacts us on an entirely different scale in California.

The Attorney General of the State of California, Bill Lockyer, and his staff have reviewed Senator Leahy’s bill, and look forward to studying Senator Hatch’s bill. We appreciate that both bills seek to enhance the accuracy and confidence in the administration of our laws. However, we believe the remedy proposed by the Leahy bill will erect such formidable practical, financial and legal obstacles that it will threaten the entire effort to use DNA effectively for criminal justice. Our difficulty with the Leahy bill is its open-ended mandate to essentially preserve and retest virtually all available case evidence.

Rather than relying upon well-developed legal principles for assessing new evidence, the Leahy bill provides no meaningful filter for distinguishing baseless from potentially meritorious claims.

Senator Leahy’s bill with its low threshold requirement that the DNA testing “may produce” relevant evidence reads more like a discovery statute for a case that has never been to trial, than a special post-conviction remedy for a fully litigated criminal cause. (See generally, Fed. R. Evid. 401 [definition of “relevant evidence” does not require that it relate to a disputed fact]; see also State of New Jersey v. Halsey (N.J.Super.2000) 748 A.2d 634 [“However, every defendant cannot forever seek to have post-judgment tests conducted in the hopes that something beneficial may result, even assuming that the evidence to be tested remains available.”].)

Most conspicuously absent from Senator Leahy’s bill is any plain language requiring an evidentiary nexus between actual innocence and the DNA test requested. There is no requirement the DNA evidence would be dispositive of a material question of identity, which in the context of the entire case and facts, would generate a reasonable doubt of guilt or culpability that did not otherwise exist. (Cf. U.S. v. Bagley (1985) 473 U.S.667, 682; People v. Savory (Ill.App.1999) 722 N.E.2d 220 [appeal pending]; see also draft Model Statute of NIJ’s National Commission on the Future of DNA Evidence.) Without such meaningful parameters, the bill invites large-scale and costly fishing expeditions for evidence that our state criminal justice system cannot, and should not, be forced to assume.

Indeed, rather than requiring a trial court to evaluate a request in its developed factual context, the bill rests on the opposite, but erroneous premise that: “Uniquely, DNA evidence showing innocence, produced decades afer a conviction provides a more reliable basis for establishing a correct verdict than any evidence proffered at the original trial.” (Leahy bill, Finding 4; emphasis added.) Obviously, this ignores the reliability of such evidence as fingerprints, and properly taken confessions. It also ignores case-specific matters such as whether the issue in a rape case is consent rather than identity, and whether there are multiple assailants, which undercuts the materiality of any DNA testing result . (See e.g. People v. Gholston (Ill.App. 1998) 697 N.E.2d 375.)

A less conspicuous, but equally problematic component of the Leahy bill is a broad provision that allows a trial court to resentence a defendant in any manner it sees fit, based simply upon “favorable” results.

While this might seem noncontroversial, those of us who have litigated DNA cases at trial or on appeal know, in reality, what can and does happen in these cases. Defense experts often testify that there has been an error in the DNA test result implicating the defendant. Similarly, defense counsel typically argue that an “inconclusive” result is significant or “favorable” to the case. Under the Leahy bill, we foresee a rush, therefore, not to prove actual innocence, but to establish the “inconclusive result” which is arguably enough to open the door to a trial court’s discretionary reevaluation of the defendant’s entire cause. This will lead to extensive hearings on the meaning of test results, but without regard to the evidentiary impact, if any, of the test results on the case as a whole.

In addition, the Leahy bill is ambiguous in several respects. There is certain to be litigation over whether the DNA testing request is based upon a “new” technique, or simply an old technique that has been improved in the regular course of scientific development. Defense attorneys routinely claim that changes in protocol, changes in amounts of chemicals added to processes, changes to enzymes, changes to make a procedure more efficient, whether a system adds markers, or tests them in combination or individually, or whether a system utilizes different visualization methodologies all constitute changes in the fundamental technology sufficient to establish it as a new DNA technique. We disagree that basic improvements to existing methodologies constitute new techniques, but this has been a very time consuming, difficult, and sometimes fruitless exercise to prove to judges who often have limited scientific background.

Other issues which the Leahy bill raises include: (1) Must the defense prove a sufficient chain of custody before the evidence is tested? (2) What will happen if the evidence to be tested will consume the sample; does law enforcement have to relinquish its right to the evidence? (3) What happens if evidence which should have been preserved, is not properly preserved or handled by the law enforcement? (4) Which lab should test the sample and whether the testing must be observed by both defense and prosecution experts when there is limited sample? (5) What is the impact, if any, of the defendant’s own failure to test the available DNA evidence split prior to trial, or reveal the results of his own “confirmatory” testing by various techniques? (6) Should a defendant be permitted to retest with each different technology even if that test does not have a significantly better power of discrimination? We also note, because the Leahy bill has no timeliness requirements, and no stated prohibition on multiple DNA testing requests, it would permit a defendant to wait to the eve of execution, and then sequentially apply for DNA post-conviction tests, i.e., first polymarker, then STRs, etc., even though all are available now.

Moreover, I cannot imagine having to explain to the many victims of serial crime in my cases that their assailants will have yet another day in court, and that a law passed by our Congress is so open-ended it arguably allows a court the discretion to fashion just about any remedy it sees fit, as long as there may be an “inconclusive” DNA result.

People v. Barney (1992) 8 Cal.App.4th 798, was a court trial and DNA RFLP case which involved the 1988 kidnapping, robbery, and attempted rape of a woman by a defendant who had seven prior convictions, many related to sexual assault. The trial court specifically found: "in the final analysis, the same verdicts would have been reached without any DNA evidence." Indeed, the non-DNA evidence against Barney was overwhelming. Among other things, Barney left his wallet containing his California identification and social security cards in the victim's automobile, and the victim gave the police an accurate description of Barney and identified him. Cellmark Diagnostics which analyzed the semen stains on the victim's pantyhose, estimated that the probability of a random match between the samples was one in 7.8 million. On appeal, the Court ruled the DNA RFLP evidence inadmissible, but harmless error. In 1999, the California Supreme Court in People v. Soto (1999) 21 Cal.4th 512 ruled generally accepted and admissible the same product rule calculations used in Barney, but found to be a source of error in that case.

In People v. Britton (June 27, 1994) AO58925 [nonpub.opn.] , the defendant, known as “The Creeper” for his “trademark” of wearing socks but no shoes, was charged with 30 felony counts for a series of rape and sodomy offenses involving six victims for crimes committed from December 15, 1990, to April 4, 1991. Though the defendant was convicted of several of the charged offenses where there was DNA RFLP evidence, the jury specifically declined to convict him of the counts against the victim where DNA was essentially the only evidence, despite the random match probability estimate of 1 in 48 million. The Court of Appeal found: “We must resist respondent's energetic effort to induce us to question the merits of the opinion in Barney [finding DNA RFLP evidence inadmissible]. The DNA evidence is so obviously marginal to the convictions returned in this case that any error in receiving it would clearly be harmless. For us to reach out to decide such a peripheral issue would therefore violate the salutary principles constraining judicial review.” Though the defendant also maintained that the remaining counts which did not involve DNA evidence, were nonetheless tainted by its "prejudicial spillover effect," the Court of Appeal disagreed, stating it was”convinced there was no prejudice,” finding: “ The evidence on the Jessica S. counts shows that appellant was found by the police in the victim's house minutes after the attack; that appellant had his pants down around his thighs, and claimed to have urinated in a bathroom that in fact had no functioning toilet; that appellant claimed he had entered the home to check on another intruder, who was not seen by the victim's mother or the police; and that appellant's car was left some distance from the house with the keys in the ignition, as if to allow a quick getaway.”

In People v. Wallace (1993) 14 Cal.App.4th 651, 661 the defendant , known as the “flex-tie” rapist for the way in which he bound his victims, was convicted of 48 felony counts with 76 enhancements for a series of rape and kidnapping crimes committed against 11 victims from July 1988 through April 1989. DNA RFLP testing performed in 1990 linked the defendant to some of these crimes, which the appellate court found were undeniably perpetrated by the same person given their distinctive m.o. In addition, among other evidence, several victims unequivocally identified the defendant; he was found in possession of the same brand of flex-ties as recovered from the victims, as well as duct tape and lubricant used in his crimes; and he confessed. With respect to the DNA RFLP evidence, the well-credentialed prosecution expert -- a member of both the NRC I and II committees1 -- found a match between the crime scene samples and defendant’s sample, even though the FBI lab which analyzed the evidence testified to an “inconclusive” result. The prosecution expert explained that the FBI has a very broad “inconclusive” category, and the extra bands on the case autorads were “technical artifacts” which were “extraneous to the genetic typing result.” The prosecution expert then estimated the random probability of match between the defendant’s samples and the crime scene samples as 1 in 26 million, but the jury heard only the artificially low figure of 1 in one million Caucasians, because of the expert’s “personal philosophy” about statistical evidence. The district attorney argued the DNA evidence played only a limited role in the case; and the Court of Appeal specifically found “[e]ven excluding the DNA analysis,” the evidence of defendant’s guilt was “overwhelming.” (Id.)

In People v. Quintanilla (Aug.11, 1994) A054959 [non pub.opn.], the defendant who had a substantial criminal record was convicted of 15 felonies with enhancements in connection with the abduction and sexual assault of the victim. DNA PCR evidence was introduced to support the verdicts. The Court would not reach the merits of the admissibility of DNA PCR evidence because it found “any error in connection with this evidence was harmless.” The Court stated: “The key evidence of guilt, aside from the victims' very positive in-court identifications, was the fingerprint on the car. The odds of that happening at random were at least as remote as any odds that have been claimed for RFLP fingerprinting. With an actual fingerprint no ‘DNA fingerprint’ was needed, much less the more generalized results of DQ-alpha genotyping. As noted in the parties' briefs, since PCR testing ‘merely narrowed the group from which other suspects might be drawn rather than definitively identif[ied] appellant as [the victim's] assailant,’ ‘the DNA evidence was more important in the investigatory stages of the case than it was at trial.’" In addition to the fingerprint, the defendant was found in possession of the victim’s jewelry. DNA evidence also excluded a different suspect in the case.

In each case it is likely under Senator Leahy’s bill that the defendant persuasively could argue he can obtain post-conviction testing by “new” DNA techniques. Each points out why it is imperative for a trial court decision to rest not merely on the availability of testable evidence, or a new DNA technique, but upon the facts of each case, which can show why further DNA testing would not undermine confidence in the case’s outcome.

In addition, you should know the laboratories that perform DNA tests in California routinely make DNA evidence available for defense testing. The results of any such DNA testing, however, are not divulged to the prosecution. Oddly, such results do not have to be factored into the calculus of whether the defendant can obtain post-conviction DNA testing.

We also respectfully find the Leahy bill cost estimates to be vastly understated. The Leahy bill sets forth that the cost of testing samples is about $2,000 -$5,000 per case. In reality, the cost of the bill will be much greater, and essentially compels the creation of a new infrastructure to meet its requirements. In addition to the cost estimate for testing an unknown number of samples, possibly reaching into the thousands each year in California, alone, some additional costs or matters which must be considered including the following:

(1) State DNA Lab personnel to provide a first or second opinion in evaluating the quality of evidence and whether evidence has been properly handled.

(2) The cost of taking DNA reference samples from the defendant and others associated with the case.

(3) State DNA Lab personnel necessary to monitor and/or confirm testing if done by another laboratory, particularly if the testing points to an exclusion of the defendant or is inconclusive due to degradation of sample, etc.

(4) The impact on State Lab program as a whole of court orders to produce results within a certain time frame.

(5) State personnel time to testify in the many hearings involving post-conviction DNA testing, particularly hearings regarding the meaning of tests result, which also require paying defense attorneys and expert witnesses; DNA defense experts typically may be paid from $175 to $250 an hour.2

(6) Investigator, district attorney and attorney general resource time to litigate cases.

(7) Trial and appellate court resources.

(8) Leasing additional storage space for case evidence that cannot be destroyed (including bulky items such as cars, blankets, and bathrobes) and building freezer space to preserve evidence.

In this regard, we note that the Leahy bill’s directive to preserve “all biological evidence secured in connection with a criminal case” throughout a person’s entire period of incarceration is very broadly stated and may ignore the privacy rights of innocent persons. Victims, family members, witnesses, innocent suspects, and boyfriends may feel quite differently about whether their samples should be stored indefinitely by law enforcement pursuant to the Leahy bill.

In addition, though it is difficult to make cost projections, we estimate the price tag of building and maintaining freezer space to “preserve” evidence that is presently retained would be substantial. For 100,000 cases we conservatively estimate a cost of $7.2 million to build new facilities, with yearly energy costs of about $1.2 million to sustain the facilities plus the cost of leasing space.

In our opinion, the huge resource allocation that the Leahy bill would require at the post-conviction phase is the wrong way to go. A fair and reasonable post-conviction DNA testing program will permit our emphasis where it should be: getting convictions right in the first place by using DNA evidence to properly identify suspects; so innocent suspects are spared searching investigations ... or even convictions, and suspects who are investigated are burdened on a greater factual basis. For this reason, expanding the national Data Bank program, and funding to eliminate the DNA Data Bank backlog is critical and we appreciate the Hatch Bill’s attention to these matters.

Finally, we emphasize that an elastic standard for post-conviction DNA testing ultimately does not serve the interests of justice for other reasons, as well.

Any further delay in our pending criminal casework caused by large-scale, court-ordered post-conviction DNA testing, ultimately could mean the difference between cases that can be prosecuted and ones that cannot -- as investigative leads must be pursued, and witnesses located while memories are still fresh. Solving crime, of course, is important not only to law enforcement, but to victims and their families, who need closure for their cases.

Likewise, delays in our pending case work and investigations imperil the rights of persons wrongly accused of crime, like Mr. Raul Zamudio, who had his house burned down by community members who thought he was responsible for a series of sexual assaults and murders in their small town, and who spent over 75 days in jail until DNA evidence revealed his innocence and identified Gustavo Marlow, Jr. as the perpetrator. (See e.g. People v. Marlow (April 25, 1995) H010375 [previously published at 34 Cal.App.4th 460].)

Similarly, because a substantial increase in workload due to post-conviction DNA testing would impede our ability to solve old cases through Databank matching, it also delays the exoneration of innocent individuals through the data bank procedure. This is because the DNA Data Bank not only helps law enforcement identify and prosecute the persons responsible for otherwise suspectless crimes, it also helps identify wrongly convicted individuals such as Kevin Green, imprisoned nearly 17 years -- until the DNA data bank evidence helped expose the truth. (See California A.B. 110 [adding Section 17156 to Rev.& Tax Code, relating to miscarriage of justice, and "appropriating $620,000 from the General Fund to the Department of Justice for payment to Kevin Lee Green" related to his unlawful incarceration for crimes committed by Gerald Parker].)

Moreover, it is our opinion the broad access to post-conviction DNA testing provided for in the Leahy bill does not best serve the rights of the wrongly convicted persons the bill ostensibly is designed to protect. If the Leahy bill passes, the truly innocent will find their claims further frustrated and delayed as they face courts clogged with meritless claims.

Curiously, the Leahy bill states “the number of cases in which post-conviction DNA testing is appropriate is relatively small and will decrease as pretrial testing becomes more common and accessible.” (See Leahy bill, Finding 11.) If this is the case, why isn’t the bill reasonably tailored to permit testing only in those small number of cases where identity is at issue, and actual innocence can be ascertained by specific DNA tests. Why not put reasonable parameters on access to post-conviction DNA testing, so it is both effective and affordable.

In our opinion, the best approach would provide fair access to testing for the wrongly convicted, while respecting the finality of convictions, and the basic tenets of our criminal justice system.

Thank you.