November 18, 2002 CONGRESSIONAL RECORD — SENATE S11247 EXECUTIVE SESSION me give an example: Anthony Porter. DNA testing is an extraordinary tool f Anthony Porter was 2 days from execu- for uncovering the truth, whatever the tion in 1998 when he was exonerated truth may be. It is the fingerprint of NOMINATION OF DENNIS W. and released from prison. Why? Not be- the 21st Century. Prosecutors across SHEDD, OF SOUTH CAROLINA, TO cause the criminal justice system the country rightly use it to prove BE U.S. CIRCUIT JUDGE FOR THE worked. He was exonerated and re- guilt. By the same token, it should also FOURTH CIRCUIT leased because a class of journalism be used to do what it is equally sci- The PRESIDING OFFICER. Under students, who had taken on an inves- entifically reliable to do: to establish the previous order, the Senate will now tigation of his case, found that did he innocence. go into executive session to proceed to not commit the crime. They also found Just like fingerprints, in many the consideration of Executive Order the real killer. A group of students crimes there are no fingerprints; in No. 1178, which the clerk will report. from a journalism class did what many crimes there is no DNA evidence. The legislative clerk read the nomi- should have been done by the criminal Where there is DNA evidence, it can nation of Dennis W. Shedd, of South justice system in the first place. show us conclusively, even years after Carolina, to be United States Circuit Ray Krone spent 10 years in prison. a conviction, where mistakes have been Judge for the Fourth Circuit. Three of those ten years were on death made. And there is no good reason not The PRESIDING OFFICER. The Sen- row waiting for the news that he was to use it. ator from Vermont. about to be executed. Then, earlier this Allowing testing does not deprive the Mr. LEAHY. Mr. President, how year, through DNA testing, he was ex- State of its ability to present its case, much time is under the control of the culpated and the real killer was identi- and under a reasonable scheme for the Senator from Vermont? The PRESIDING OFFICER. Three fied. These are two of the many trage- preservation and testing of DNA evi- hours. dies we learn about each year. dence, it should be possible to preserve Mr. LEAHY. Mr. President, I have These situations result not only in the evidence. discussed this with the distinguished the tragedy of putting an innocent per- The Innocence Protection Act would senior Senator from Utah. I am going son on death row, but they also leave therefore provide improved access to to speak on another matter prior to the person who committed the crime DNA testing for people who claim that going to the Shedd nomination, al- free. Everything fails. We have the they have been wrongfully convicted. though I have no objection to the time wrong person in prison. But we have Just last week, prosecutors in St. coming out of the 3 hours. not protected society or the criminal Paul, MN, vacated a 1985 rape convic- justice system because the real crimi- tion after a review of old cases led to f nal is still out running free. Often DNA testing that showed they had the INNOCENCE PROTECTION ACT times, the actual perpetrator is a serial wrong man—and also identified the ac- Mr. LEAHY. Mr. President, for more criminal. tual rapist. Think how much better so- than 2 years, I have been working hard Today, Federal judges are voicing ciety would have been had they caught with Members on both sides of the concerns about the death penalty. Jus- the real rapist 17 years ago. The dis- aisle, in both Houses of Congress, to tice Sandra Day O’Connor has warned trict attorney wanted to conduct DNA address the horrendous problem of in- that ‘‘the system may well be allowing testing in two other cases, but the evi- nocent people being condemned to some innocent defendants to be exe- dence in those cases had already been death within our judicial system. This cuted.’’ Justice Ginsburg has supported destroyed. She has called on law en- is not a question of whether you are for a State moratorium on the death pen- forcement agencies to adopt policies or against the death penalty. Many of alty. Another respected jurist, Sixth requiring retention of such evidence, the House Members and Senate Mem- Circuit Judge Gilbert Merritt, referred and that is what our bill would call for. bers who have joined this effort are in to the capital punishment system as Many cases have no DNA evidence to favor of the death penalty. I suspect ‘‘broken,’’ and two district court be tested, just as in most cases there the majority of them are in favor of it. judges have found constitutional prob- are no fingerprints. In the vast major- It goes to the question of what happens lems with the Federal death penalty. ity of death row exonerations, no DNA if you have an innocent person who is We can agree there is a grave prob- testing has or could have been in- condemned to death. lem. The good news is that there is also volved. Our bill, the Innocence Protection a broad consensus on one important So the broad and growing consensus Act, proposes a number of basic com- step we have to take—we must pass the on death penalty reform has another monsense reforms to our criminal jus- Innocence Protection Act. top priority. All the statistics and evi- tice system; reforms that are aimed at That is why I wanted to let my col- dence show that the single most fre- reducing the risk that innocent people leagues know what is happening. As quent cause of wrongful convictions is will be put to death. the 107th Congress draws to a close, the inadequate defense representation at We have come a long way since I first IPA is cosponsored by a substantial bi- trial. The biggest thing we can do is to introduced the IPA in February 2000. partisan majority of the House and by guarantee at least minimum com- At that time, we had four Democratic 32 Senators from both sides of the petency for the defense in a capital cosponsors. Now there is a broad con- aisle, including, most recently, Senator case. sensus across the country among BOB SMITH of New Hampshire. A This bill offers States extra money Democrats and Republicans, supporters version of the bill has been reported by for quality and accountability. and opponents of the death penalty, a bipartisan majority of the Senate Ju- They can decline the money but then liberals, conservatives, and moderates, diciary Committee. And the bill enjoys the money will be spent on one or more that our death penalty machinery is the support of ordinary Americans organizations that provide capital rep- broken. We know that putting an inno- across the political spectrum. resentation in that State. One way or cent person on death row is not just a What would the Innocence Protection another, the system is improved. nightmare, it is not just a dream, it is Act do? As reported by the committee, More money is good for the states. a frequently recurring reality. the bill proposes two minimum steps More openness and accountability is Since the 1970s, more than 100 people that we need to take—not to make the good for everyone. And better who were sentenced to death have been system perfect, but simply to reduce lawyering makes the trial process far released, not because of some techni- what is currently an unacceptably high less prone to error. cality, but because they were innocent, risk of error. First, we need to make When I was a State’s Attorney in because they had been sentenced to good on the promise of modern tech- Vermont, I wanted those I prosecuted death by mistake. One wonders how nology in the form of DNA testing. to have competent defense counsel. I many others were not discovered and Second, we need to make good on the wanted to reach the right result in my how many innocent people were exe- constitutional promise of competent trails, whatever that was, and I wanted cuted. counsel. a clean record, not a record riddled These are not just numbers, these are DNA testing comes first because it is with error. Any prosecutor worth his or real people. Their lives are ruined. Let proven and effective. We all know that her salt will tell you the same; any VerDate 0ct 31 2002 01:31 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00017 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.033 S18PT1 S11248 CONGRESSIONAL RECORD — SENATE November 18, 2002 prosecutor who is afraid of trying his I have heard four arguments against working in a well-functioning adver- cases against competent defense coun- the bill. One wonders, with all these sarial system with effective represen- sel ought to try a new line of work, be- people from the right to the left, all tation on the other side. That is the cause the whole system works better if these editorial writers and Members of way it is supposed to work. both prosecutor and defense counsel Congress from both parties supporting When I hear a prosecutor say that are competent. That is what I wanted the IPA, what that tells us. the IPA reforms—enabling DNA testing when I was prosecuting cases because I First, critics claim that the bill is an and securing adequate defense rep- wanted to make sure justice was done.