Thank you Mr. Chairman, Members of the Committee. I appreciate the opportunity you have given me to present testimony today on the very important issue of DNA testing.

By way of brief background, I was elected Attorney General of Oklahoma in 1994 and was re-elected in 1998. Prior to this office, I served as an elected District Attorney for ten years and was in the private practice of law for two periods, during which I had an active criminal defense caseload which included homicide cases. I was serving in the Oklahoma Legislature in 1976 when our death penalty statute was re-enacted and voted for its passage.

I also had the honor of working with Senator Hatch and others on the habeas corpus reforms included in the 1996 Anti-Terrorism and Effective Death Penalty Act. Some of you may recall the victims and family members of victims of the Murrah Building bombing who came to Washington wearing buttons with the number 17 and the international “no” symbol on them, signifying the 17 years of appeals for Roger Dale Stafford, a notorious Oklahoma murderer, and their hope that the process would not be that lengthy for whoever might be convicted of the act which so devastated Oklahoma City on April 19, 1995.

You responded to their pleas in 1996, but now, I fear, only four years later, you are considering legislation which might well erase those gains and throw additional, unnecessary roadblocks into our judicial process.

Since the death penalty was re-enacted in 1976 Oklahoma has executed 27 convicted murderers, with all but three taking place during my five and one-half years as Attorney General. I have attached a very brief description of each of those cases to my written testimony to note the fact that DNA testing was not an issue in any of those cases, either because there were no samples from the perpetrator left at the scene of the crime for testing or because guilt was admitted and testing unnecessary or identity of the perpetrator was not at issue.

There is nothing magic about DNA.

The Innocence Protection Act of 2000 calls DNA., “...the most reliable forensic technique for identifying criminals when biological material is left at a crime scene.” That is accurate but misleading at the same time.

1. DNA identifies the donor, not necessarily the perpetrator.
2. DNA does not tell us when it arrived at the scene of the crime, only that it is there.
3. DNA does not tell us how it arrived at the scene of the crime.
4. DNA does not tell us who else might have been present when the DNA arrived at the scene or when the crime was committed.

Robert Frost said that before he would build a wall he would ask himself what it is he is wanting to wall in or to wall out. Before we mandate a DNA test in an individual case or by legislation we should ask ourselves what, exactly, do we hope to prove or disprove. The essential question should be: If this test turns out exactly the way the applicant hopes it turns out will it show the applicant is innocent?

Contrary to the expression of fact in the Innocence Protection Act, that DNA “...can, in some cases, conclusively establish the guilt or innocence of a criminal defendant,” the truth is that in the best of cases a DNA test can only provide compelling evidence of either guilt or innocence. In most cases, including most murder cases, DNA testing is inapplicable because there are no samples connected to the suspect for testing or irrelevant because the identity of the perpetrator is not at issue.

What Congress may do, in responding to a “hot button” problem which may not exist by passing a law that may not be needed, is establish an “Ineffective Death Penalty Act” that awards new avenues of appeal for convicted murders, years of additional anguish for the families of their victims, and an attack on state sovereignty that is breathtaking in its scope.

Under S2073, the State of Oklahoma, even if it opts out of federal grant programs, can still be forced to adopt new hearing procedures, new avenues of appeal, new standards for representation and compensation, new jury instructions in capital cases, new requirements for preservation of evidence and new methods for convicted murderers to sue state officials, including judges.

Oklahoma enacted a DNA testing bill in this past session of the Legislature. It was signed into law by Governor Keating on June 1. While it gives our indigent defense system sole discretion to determine which cases to authorize for testing, the Act requires priority be given to cases presenting the “opportunity for conclusive or near conclusive proof that the person is factually innocent by reason of scientific evidence.” The Act applies to both capital and non-capital cases and is attached to this testimony.

Prior to enactment of the testing bill, the Attorney General’s office established a procedure for DNA review of all death penalty cases nearing the end of their appeals to determine whether there remained an issue of actual innocence which could be resolved by forensic testing. If such a case presented itself, the testing would be accomplished by agreement prior to an execution date being requested. No such case has arisen.

Oklahoma, along with other states, is awaiting the product of the National Commission on the Future of DNA Evidence, which we anticipate will be a model law styled the Uniform Statute for Obtaining Postconviction DNA Testing. While we have not yet seen that statute, I joined with 29 other state Attorney Generals to urge this committee and the Congress to be cautious about enacting new and onerous provisions in this area, at least until the model statute has been presented and reviewed. I have appended that letter to my testimony.

Last Sunday’s Tulsa World had a review of the book Actual Innocence which included a lengthy reference to the Oklahoma case of Ronald Keith Williamson, declared by the authors to have been proven innocent beyond a doubt after having been within days of being executed. It is a fact that Williamson was released on the strength of DNA testing, which showed that samples taken from the victim belonged to a third individual and not to Williamson or his co-defendant Dennis Fritz, who was also released from a life sentence. It is not true that Williamson was within days of being executed and it is arguable whether he is innocent.

Oklahoma requested an execution date for Williamson in August 1994 because his most recent appeal had been denied and his next appeal had not been filed. An execution date of September 27, 1994 was set with all parties understanding that it would be stayed when the defense filed its petition for writ of habeas corpus, the next step in the process. The habeas petition was filed on September 22, 1994 and we filed a response agreeing to a stay of execution, which was granted September 23, 1994. The threat of his execution on September 27 was so remote as to be nonexistent

Williamson was not convicted “on the strength of a jailhouse snitch” as reported. Among the direct and circumstantial evidence of his guilt was a statement he gave to the Oklahoma State Bureau of Investigation describing a “dream” in which he had committed the murder. Williamson said, “I was on her, had a cord around her neck, stabbed her frequently, pulled the rope tight around her neck.” He paused and then stated that he was worried about what this would do to his family.

When asked if Fritz was there, Williamson said, “yes.”

When asked if he went there with the intention of killing her, Williamson said “probably.”

In response to the question of why he killed her, Williamson said, “she made me mad.”

The Pontotoc County prosecutor had a tough decision to make on a re-prosecution of Williamson and Fritz and concluded that conviction was highly unlikely in the wake of the DNA evidence, even though the note left at the scene said “Don’t look fore us or ealse,” indicating multiple perpetrators.

Scheck, Neufeld and Dwyer can claim Williamson as poster material for Actual Innocence, but I would look further before creating federal legislation based upon his case.

Oklahoma also saw the case of Loyd Winford Lafevers delayed over DNA evidence. With the execution date approaching, defense attorneys alleged in pleadings that test results could produce substantial evidence of innocence. After being denied access to the evidence by both state and federal courts, the 10th Circuit issued a stay, without affording the state an opportunity to respond, and the case is now on hold at least until July and probably longer.

Lafevers and co-defendant Cannon burglarized, beat, kidnaped and ultimately doused with gasoline and set on fire, an 84 year old woman in Oklahoma City. They were tried together, convicted and sentenced to death. The appeals court reversed and ordered they be tried separately, which was done in 1993. Separately they were convicted and sentenced to death.

Each co-defendant confessed to participation in every part of the crime scenario, but each said the other was the more active participant. Two pair of pants were seized from Cannon’s residence and were tested. They both had blood type A on them, which was the blood type for both Cannon and the victim. In argument, the state submitted that one pair of pants could belong to Lafevers and the blood could be the victim’s from the beating. Lafevers denied ownership of either pair of pants, saying he washed his pants at his mother’s house.

Having exhausted all state and federal appeals, to file a successive one in either courthouse would require a showing of (1) new evidence of (2) actual innocence. This evidence is neither. It is not new because the defense could have run DNA tests for the retrial in 1993 and chose not to. It is not evidence of actual innocence because regardless whose blood is on those pants the evidence would not negate or even minimize the guilt of Lafevers.

The tests determined the blood to be Cannon’s. The defense is now testing, over the state’s objection, hairs from the victim’s clothing at the scene of the immolation. Again, not new and no potential for exoneration of Lafevers, and the victim’s family is suffering through more delays and wondering what has happened to our criminal justice system.

Lafevers not only admitted to his participation in the murder of this 84 year old woman, his confession was corroborated by witness testimony, the fact that after the killing he went to a strip joint smelling of gasoline and gave a stripper the victim’s wedding ring, and a statement he gave another witness that he set the woman on fire and “watched her jump like a junebug on a hot sidewalk.”

This scenario of justice delayed would be repeated over and over again with the mandates and lax standards of S2073.

We are told there are people on death row or serving lengthy terms of imprisonment who are actually innocent and could be proven so by DNA testing. The executive director of our indigent defense system cited statistics from the Innocence Project that they had heard from 70 to 100 Oklahoma inmates so situated. I asked for names and offered to review files and, if merited, to pay for testing out of the budget of the Attorney General’s Office. I have attached exhibits verifying that offer.

Four months later those prisoners continue to languish and I have yet to be provided with a single name of a single prisoner who is arguably innocent and could be freed with a DNA test in Oklahoma.

If the federal government moves in a direction to affect forensic testing in state courts, I would urge the committee to adopt the approach being suggested by Senator Hatch. Establish policies that encourage the states to proceed in this direction. Rather than authorizing tests whenever the results might be “relevant” to a theory of innocence, require a prima facie showing that identity was an issue at the original trial and that the DNA test, if the results were favorable, would establish innocence sufficiently that a reasonable jury would not convict.

Rather than threatening loss of funds that are providing vital law enforcement needs and victim services, establish a new funding source to assist states in implementing these new initiatives.

No Attorney General I know, not a single prosecutor I have ever known, and certainly no judge or jury, wants to be responsible for the incarceration, much less the execution, of an innocent person. If the legislature of Oklahoma can pass, and a conservative governor with a law enforcement background can sign, a state law facilitating forensic testing to aid the appeals of incarcerated individuals, then any state can.

I urge the committee not to succumb to the mantra and drumbeat of DNA by passing legislation that tramples state sovereignty, shatters the promise of the Effective Death Penalty Act, erases the progress we have made in behalf of victims, adds little to the rights of the truly innocent but adds years to the appeals of the very guilty.

Thank you.