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The past year has witnessed an historic consensus across the death penalty divide — that there might be something wrong with the way capital punishment is meted out in America. Now the hard part: how to fix it. On June 13, the Senate Judiciary Committee held its first hearing on the Innocence Protection Act, a bill thought to be dead on arrival when Senator Patrick J. Leahy, D-Vt., first introduced it on Feb. 10. But the drumbeat of exonerations, tales of incompetent defense lawyers and a new study finding that two out of three capital convictions are thrown out on appeal has breathed new life into the bill. It also didn’t hurt that Texas Governor George W. Bush made the topic a campaign issue when, on June 1, he granted a temporary reprieve to death row inmate Ricky N. McGinn, now represented by Barry C. Scheck, who joined Texas lawmakers on June 8 in proposing a DNA testing law similar to those in New York and Illinois. “More than 90 percent of Americans [agree] that DNA testing should be made available to defendants and inmates in all cases in which it has the potential to establish guilt or innocence,” says Sen. Leahy in support of his bill. New York Attorney General Eliot Spitzer buttressed Leahy’s point when he testified that post-conviction testing in New York state has led to seven exonerations there. The Leahy bill would allow testing for federal inmates who show that DNA could be relevant to their claim of innocence or wrongful sentencing. It would also condition law enforcement funds for states on whether they do the same. But Republicans note that the bill also bases federal grants on whether a state maintains an “effective system for providing competent legal services to indigents.” Judiciary Committee chairman Sen. Orrin G. Hatch, R-Utah, who supported the defunding of death penalty resource centers and limits on federal habeas corpus, balked at this provision, warning that it would “federally empower” lawyers such as Scheck, whom he calls “artisans of manufactured delay.” As expected, Hatch announced a competing bill that would be limited to DNA testing, and then only if guilt or innocence is clearly at issue. His Criminal Justice Integrity and Law Enforcement Assistance Act would allow DNA testing only if an inmate can make a prima facie showing of possible exoneration. But death penalty experts say that inmate access to DNA testing won’t address most wrongful capital convictions because DNA is determinative in only a small number of cases. Of the 87 death row inmates exonerated since the death penalty was reinstated in 1976, only eight benefited from DNA testing, says Richard C. Dieter, executive director of the Death Penalty Information Center. “DNA has only identified that there is a problem. DNA doesn’t tell us how to fix the problem,” says Asst. U.S. Attorney Christopher Asplen, executive director of the National Commission on the Future of DNA Evidence. WHEAT FROM CHAFF Although aides to Hatch and Leahy say that a compromise bill is possible, and the House is preparing to take up a parallel bill this week, at least one state prosecutor warns that implementing post-conviction DNA testing might not be as easy as Congress thinks. Stuart Van Meveren, president of the National District Attorneys Association, says that state prosecutors could be forced to evaluate a flood of frivolous DNA requests, draining crucial manpower from “already strapped” agencies. But Asplen, whose commission issued a report last year titled “Post-conviction DNA Testing: Recommendations for Handling Requests,” says that, although he agrees prosecutors will spend significant time evaluating requests, such flood warnings are premature. “Those states that have post-conviction legislation have not experienced an avalanche,” he says, pointing out that most defense lawyers can be expected to dissuade their clients from filing frivolous DNA requests that could further cement their guilt. And besides, he adds, in many cases, physical evidence has long since been destroyed or lost. Scheck, a member of the national DNA commission, testified that in 75 percent of the cases in which he has determined that an inmate could benefit from DNA testing, the evidence could not be found. In Illinois, a bill aimed at preserving such physical evidence for testing is on Governor George H. Ryan’s desk, although an aide says he has not yet decided whether to sign it. Ryan, a Republican, approved the state’s current law allowing post-conviction DNA testing. He also declared a moratorium on executions in his state last year after a spate of death row exonerations there, a move that focused national attention on the issue of wrongful capital convictions. Since then, several states have considered, though not yet passed, similar moratoriums. Asplen’s commission recommended that prosecutors evaluate DNA requests based on whether a positive result would actually exonerate, or would merely be cumulative, and also whether the physical evidence to be tested still exists. At the June 13 hearing, California Deputy Attorney General Enid A. Camps criticized the Leahy bill’s lower threshold for test requests, telling the Committee that California’s backlog of 115,000 DNA test requests from investigations, prosecutions and for DNA databank entry would be significantly worsened by a bill that invites “large-scale and costly fishing expeditions.” The Justice Department reported this year that, as of late 1997, 69 percent of state DNA labs were backlogged with nearly 300,000 testing requests. But Brooklyn Law School professor and DNA expert Margaret Berger, also a commission member, says post-conviction DNA testing will be necessary for only “five or 10 years,” until all old cases that were not subject to such testing have been addressed. “In the future, we’ll catch up and automatically do DNA testing,” she says. “After a while, this will disappear.”

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