United States Senate

Committee on the Judiciary

Testimony of the Honorable William D. Delahunt of Massachusetts

In Support of the Innocence Protection Act of 2001

June 27, 2001

Mr. Chairman and Members of the Committee:

Thank you for inviting me to testify today on behalf of the more than 200 members of the House of Representatives who have cosponsored the Innocence Protection Act.

We introduced the Innocence Protection Act because our nation's system for trying capital cases is failing. This has been demonstrated by a series of studies, such as the one conducted last year by researchers at Columbia University. They looked at over 4,000 capital cases in 28 states over a 23-year period. And they concluded that seven out of every 10 death penalty cases contained serious reversible error.

Seven out of 10. A failure of that magnitude calls into question the fairness and integrity of the American justice system itself.

Some suggest that the high rate of reversals shows that the system is working. But that is nonsense. We cannot know whether the appeals process is catching all the errors or not. But we do know--definitively that the errors are not being caught at trial. We do know that innocent people are serving lengthy sentences for crimes they did not commit.

What is heartening is that the public understands this. Polls reveal growing misgivings about the administration of the death penalty, and overwhelming support for reforms that would provide some degree of reassurance.

The catalyst for this sea-change can be summed up in one word: DNA. Science has given us new forensic tools which can conclusively establish guilt or innocence. And these tools have been used to exonerate nearly 100 people who spent years on death row for crimes they did not commit. Some of whom came within days of being put to death.

Fortunately, their lives were spared. But the system failed them. And it failed society as well, by leaving the real perpetrators out walking the streets.

DNA is the spotlight that has enabled us to focus on this problem, and our bill would help ensure that defendants have access to testing in every appropriate case. But we should be under no illusion that by granting access to DNA testing we are solving that problem. DNA is not a panacea for the frailties of the justice system. To suggest otherwise would be

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tantamount to fraud--particularly when, in the vast majority of cases, biological evidence that can be tested does not even exist.

What DNA has revealed is that the lack of adequate legal services is the crux of the problem. The adversary process is the heart and soul of our system of laws. The chance to put the evidence on trial, and confront the witnesses in open court. I was a prosecutor for over 20 years. And I know that the process can work only when the lawyers on both sides are up to the job.

Those kinds of lawyers aren't as easy to find as some may think. We have a lot of lawyers in this country. But very few of them are engaged in trial practice, and fewer still have ever tried a criminal case from beginning to end.

It is a tiny percentage of that percentage who are equipped to shoulder the immense responsibility of trying a case in which a human being is on trial for his life. These are complex matters which cannot be handled by lawyers who lack the training, experience and resources to prepare a proper defense. Let alone by lawyers who are incompetent, unprepared, or impaired by substance abuse.

We cannot tolerate a system that relies on reporters and journalism students to develop new evidence that was never presented at trial. A system in which chance plays such a profound role in determining whether a defendant lives or dies.

The Innocence Protection Act would encourage states to develop minimum standards for capital representation, as some states have already done. And it would provide the states with resources to help ensure that indigent defendants have access to a lawyer who can meet those standards.

If we are successful, the impact of these measures will be felt far beyond the confines of death penalty cases. By raising standards we can help restore public confidence, not just in the fairness and reliability of capital trials, but in the integrity of the American justice system as a whole.

The American people have a right to expect that the truth will be relentlessly pursued. That every needed resource--and every possible safeguard--will be brought to bear. Yet if this does not happen in death penalty cases how can they have confidence that the justice system is any less fraught with error in non-capital cases?

Some have suggested that our society cannot afford to pay for qualified counsel in every capital case. The truth, Mr. Chairman, is that we cannot afford to do otherwise, if that cherished system of justice is to survive.