[Back to Document View]

                            LexisNexisª Academic

       Copyright (c) 2001 New York Law School Journal of Human Rights
                New York Law School Journal of Human Rights

                                    2001

                      18 N.Y.L. Sch. J. Hum. Rts. 101

LENGTH: 15459 words

NOTES & COMMENTS: The Innocence Protection Act: Why Federal Measures
Requiring Post-Conviction DNA Testing and Preservation of Evidence are
Needed in Order to Reduce the Risk of Wrongful Executions

Rochelle L. Haller


SUMMARY:
... Since the death penalty was reinstated in 1976, 731 men and women have
been executed in the United States , including forty-eight prisoners put to
death from January through August of 2001 alone. ... Prisoners who are
forced to litigate in order to obtain DNA testing face an average delay of
4.5 years, increasing the likelihood that biological evidence will be lost
or destroyed. ... The ABA's motion was supported by twenty former ABA
presidents - many of whom considered themselves death penalty supporters.
... Governor Ryan, a death penalty proponent, announced his decision after
thirteen men were exonerated and freed from death row in Illinois. These
thirteen men represented more than half of all death penalty sentences in
Illinois since the state reinstated capital punishment in 1977. ... However,
Congress under the 1996 Anti Terrorism and Death Penalty Reform Act
extinguished this hope. ... Also, the requirement under the Act which would
preserve all biological evidence for the length of a prisoner's sentence
would ensure that a prisoner would be able to prove his or her claim of
innocence through DNA testing without the concern that the state could
destroy the evidence at any time. ... In cases involving a death sentence,
all biological evidence must be retained until the judgment is executed. ...
Questioning his guilt, several anti-death penalty groups continued to push
for DNA testing even after O'Dell's death. ...


"I believe there are cases where the death penalty is appropriate. But we've
got to make sure we have the right person. Every governor who holds this
power has the same fear I do." n1

TEXT:
 [*101]

Part I: Introduction

Since the death penalty was reinstated in 1976, 731 men and women have been
executed in the United States n2, including forty-eight prisoners put to
death from January through August of 2001 alone. n3 During this time,
ninety-six people n4 - more than one out of every 100 people sentenced to
death in the United States n5 - have been exonerated after spending years in
prison or on death row for crimes they did not commit. n6 Of these
exonerations, eighty-  [*102]  two people, including ten on death row, were
proven innocent by post-conviction deoxyribonucleic acid testing
(hereinafter referred to as "DNA testing"). n7 In at least seventeen of the
exonerations, DNA testing not only proved the innocence of convicted men and
women, but also led to the identification of the real perpetrators. n8

While these figures may indicate that our judicial system may be on the
right track in utilizing DNA technology in criminal cases, the truth is that
many convicted men and women request DNA testing every year to prove their
innocence, but their requests are denied due to post-conviction evidentiary
time restrictions. n9 In almost half of the post-conviction exonerations
based on DNA evidence, state prosecutors refused to release evidence for DNA
testing until litigation was threatened or initiated. n10 Prisoners who are
forced to litigate in order to obtain DNA testing face an average delay of
4.5 years, increasing the likelihood that biological evidence will be lost
or destroyed. n11

 [*103]  In order to stop this injustice, a bi-partisan bill called the
Innocence Protection Act of 2001 (hereinafter referred to as "The Act") has
been introduced to the Senate and to the House of Representatives. n12 The
Act is a collection of measures aimed at reducing the imprisonment and
execution of innocent people. n13 The Act would apply to all federal inmates
and would require all states to either adopt the provisions set forth in the
Act or create similar legislation of their own. n14 States refusing to
comply would do so at the risk of losing grants for DNA programs. n15

 [*104]  A significant portion of the Act deals with DNA testing, notably
providing post-conviction DNA testing to inmates and ensuring the
preservation of biological evidence for the term of an inmate's sentence.
n16 This Note will focus on the proposed legislation regarding these issues.
Part II discusses the history and background of the Act. Part III
illustrates the effect the Act will have on current federal law. Part IV
describes the effect the Act will have on current state law. Part V explains
why it is necessary and proper for federal legislation to be enacted to
ensure that the federal government and the states will take the appropriate
steps in allowing post-conviction DNA testing and the preservation of
biological materials. Part VI examines the effect of similar legislation
currently enacted in states such as New York, Illinois and California. Part
VI also explores recent legislation passed in Texas and Virginia - two
states that have staunchly maintained the strictest post-conviction laws in
the country.

 [*105]  While the Act's requirement for state compliance may be considered
a broad act of federalism, n17 its measures are necessary in order to
protect innocent people from wrongful convictions and executions. n18
Although several states have adopted measures similar to those proposed in
the Act, n19 the flat-out refusal by some states n20 to recognize or create
similar legislation makes it clear that federal intervention is needed to
reduce the risk of incarcerating or executing innocent people. n21

Part II: History and Background of the Innocence Protection Act

In 1997, the House of Delegates of the American Bar Association adopted a
report from the ABA Section of Individual Rights and Responsibilities and
called for a nationwide moratorium on the death penalty. n22 Furthermore,
the ABA urged the federal government and the thirty-eight states with the
death penalty to temporarily  [*106]  halt executions until they could
ensure fairness in capital cases and reduce the risk of executing the
innocent. n23 The ABA's motion was supported by twenty former ABA presidents
- many of whom considered themselves death penalty supporters. n24

On January 31, 2000, Illinois Governor George Ryan, citing Illinois'
"shameful record of convicting innocent people and putting them on death
row," n25 imposed the nation's first moratorium on executions. n26 Governor
Ryan, a death penalty proponent, n27 announced his decision after thirteen
men were exonerated and freed from death row in Illinois. n28 These thirteen
men represented more than half of all death penalty sentences in Illinois
since the state reinstated capital punishment in 1977. n29 Explaining his
decision to issue the moratorium, Governor Ryan stated that he was no longer
able to "support a system which, in its administration, has proven so
fraught with error, and has come so close to the ultimate nightmare." n30

 [*107]  The day after Governor Ryan issued the moratorium, Senator Patrick
Leahy (D-VT) announced that he would introduce "the first federal
legislation to address denials of fundamental fairness in the administration
of capital punishment." n31 Ten days later in the Senate, on February 10,
2000, Senator Leahy introduced S. 2073, The Innocence Protection Act of
2000. n32 On April 4, 2000, Congressmen William Delahunt (D-MA) and Ray
LaHood (R-IL) introduced H.R. 4167 - also called The Innocence Protection
Act - to the House of Representatives. n33 By the end of the 106[su'th']
Congress, the Act had not been submitted to a vote in either the Senate or
House. The Act was reintroduced to the 107[su'th'] Congress as S. 486 and
H.R. 4167 on March 7, 2001. n34

The legislation proposed by the Act "arose out of a growing national
awareness that the machinery by which capital cases [are tried] in this
country has gone seriously awry." n35 In the Act, the drafters made several
findings that proved that there were serious problems with the current
federal and state systems of criminal justice. n36 Notably, the Act points
out that in most states, a motion for  [*108]  a new trial based on newly
discovered evidence of innocence must be filed within three years or less of
conviction. n37

The strict evidentiary laws imposed by the states are correlated to the
growing pressure on the judicial system to reduce frivolous appeals and
speed up executions. n38 Over the past decade, the Supreme Court, Congress,
and several states have moved to expedite executions by making appeals more
difficult if not impossible. n39 For example, before Virginia abolished its
time limit during which a prisoner may introduce post-conviction DNA
evidence, a prisoner wishing to present such evidence had do so within 21
days of his or her conviction. n40 After this date, the prisoner was forever
barred from appeals based on new evidence, no matter how exculpatory the
evidence was. n41 After the 21-day period, a judge lost jurisdiction over a
case even if he or she "[felt] there [had] been a gross miscarriage of
justice." n42

In addition to reducing the number of appeals and obtaining finality in
criminal cases, another purpose of post-conviction evidentiary laws is to
prevent the use of evidence that has become less reliable over time. n43
However, the result of restricting all newly found evidence precludes the
use of DNA evidence, which remains highly reliable for decades after a
trial. n44

The drafters of the Act found that DNA testing has emerged as the "most
reliable forensic technique for identifying criminals when  [*109]
biological material is left at a crime scene." n45 While DNA testing is
commonplace in criminal investigations and trials today, it was not
available to most cases tried before 1994. n46 Furthermore, new technology
now allows for conclusive testing from minute samples, which could not have
previously been tested. n47 As a result, some convicted men and women have
been exonerated by new DNA tests after earlier testing had proven
inconclusive. n48

The significance of the preclusion of such DNA evidence is that while DNA
testing could, in many cases, conclusively establish guilt or innocence, it
is out of the reach for many convicted people n49 notably those who were
convicted before DNA testing technology was available. n50 As a result, most
prisoners with evidence of their innocence can only hope for an executive
clemency or pardon. n51

Prior to 1996, state prisoners had an additional hope for justice - an
appeal to the federal courts. n52 However, Congress under the 1996 Anti
Terrorism and Death Penalty Reform Act extinguished this hope. n53 "In its
zeal to achieve finality in death penalty litigation, Congress eviscerated
the great writ of federal habeas corpus, the mechanism used for almost two
hundred years by state prisoners who wanted a federal court to review the
justice of their state  [*110]  decisions." n54 Under the 1996 law,
condemned prisoners only have six months after their state appeals to
request federal intervention, and one year for other matters. n55

The purposes of Title I of the Act are to reduce the risk of wrongful
convictions and executions by ensuring the availability of DNA testing in
appropriate cases, n56 to "prevent the imposition of unconstitutional
punishments through the exercise of power granted by Clause 1 of Section 8
and Clause 2 of Section 9 of Article I of the Constitution of the United
States and Section 5 of the 14[su'th'] Amendment to the Constitution of the
United States", n57 and to ensure that persons who are wrongfully convicted
have an opportunity to prove their innocence through DNA testing by
requiring the preservation of DNA evidence for a limited period. n58

 [*111]

Part III: Effect of the Act on Current Federal Law

To ensure the availability of post-conviction DNA testing, the Act would
amend Part VI of Title 28 of the United States Code by inserting Chapter
156-DNA Testing. n59 Within Chapter 156 is proposed Section 2291, DNA
Testing. n60 Section 2291 would allow a person convicted of a Federal crime
to apply to the appropriate Federal court for DNA testing to support the
person's claim that he or she did not commit the Federal crime for which he
or she was convicted n61 or any other offense that a sentencing authority
relied upon when it imposed a sentence of death or an enhanced term of
imprisonment for a career offender or armed career offender. n62

Once an application for DNA testing is made to the court, the court must
notify the government, who has an opportunity to respond. n63 When notice of
a convicted person's request is received, the government shall take the
appropriate steps to ensure that all evidence secured in connection with the
case that could be subject to DNA testing is preserved pending the
completion of the proceedings. n64 If any evidence is destroyed after an
order is issued, the court may impose sanctions such as criminal contempt.
n65

The court shall order DNA testing pursuant to a prisoner's application if it
determines that the evidence still exists and in such condition that testing
is possible; n66 the evidence was not previously subjected to the type of
DNA testing currently requested and that may resolve an issue which was not
resolved by earlier testing; n67 the DNA testing proposed utilizes a valid,
scientific technique; n68 and if the DNA testing proposed can provide new
and noncumulative evidence relevant to the prisoner's claim that he or she
did not commit the Federal crime for which he or she was convicted n69 or
any other offense that a sentencing authority relied upon when it imposed a
 [*112]  sentence of death or an enhanced term of imprisonment for a career
offender or armed career offender. n70 The court shall not issue an order
for DNA testing if the government proves by a preponderance of the evidence
that the application was raised in order to delay an execution or
administration of justice rather than to support a claim of innocence. n71

The court may order, in the interests of justice, that the cost incurred by
the DNA testing be paid by either the government or the prisoner. n72 No
prisoner will be denied DNA testing due to his or her inability to pay for
it. n73

If the result of the DNA testing is inconclusive, the court may either order
further testing n74 or dismiss the applicant's application. n75 If the DNA
testing is not in the applicant's favor, the court shall dismiss the
application; n76 assess the applicant for the testing costs; n77 and make
any further orders as it deems appropriate. n78 If the result of the DNA
testing is in the applicant's favor, the court shall order a hearing and
thereafter make additional orders appropriate under applicable
post-conviction proceedings. n79

To ensure that biological evidence would be available for post-conviction
DNA testing, the Act would amend Part IV of Title 28 of the United States
Code by inserting within proposed Chapter 156, Section 2292, Preservation of
Biological Material. n80 Section 2292 would require the government to
"preserve all evidence that was secured in relation to the investigation or
prosecution of a Federal crime ... and that could be subjected to DNA
testing, for not less than the period of time that any person remains
subject to incarceration in connection with the investigation or
prosecution." n81 The government may only destroy such evidence before the
expiration of the proscribed time if there is no statute, regulation, court
order  [*113]  or any other provision of law that requires the preservation
of the evidence; n82 the government notifies the incarcerated person and his
or her attorney of its intention to destroy the evidence n83 and of the
prisoner's right to DNA testing under the provisions of Chapter 156 to make
an application for DNA testing within 180 days; n84 the evidence must be
returned to its rightful owner or is unable to be retained by the government
in a practical manner; n85 and the government takes reasonable measures to
remove and preserve portions of the material to allow future DNA testing.
n86

Part IV: Effects of the Act on State Law

Section 103 of the Act proposes to require that if a state requests funds
from the DNA analysis backlog elimination grants, n87 Paul Coverdell
national forensic sciences improvement grants, n88 DNA identification
grants, n89 drug control system improvement grants, n90 and public safety
and community policing grants n91 to develop or improve DNA laboratories or
testing, the state must first certify that it will make post-conviction DNA
testing available to prisoner's convicted of a state crime in a consistent
manner as set forth in 2291 of Title 28 of the United States Code; n92 and
that it will preserve all evidence obtained in connection with the
investigation or prosecution of the prisoner that could be subjected to DNA
testing for no less than the time period set forth under 2292 of Title 28 of
the United States Code. n93

Under Section 104 of the Act (Prohibition Pursuant to Section 5 of the
14[su'th'] Amendment), a state may not deny a request for DNA testing made
by a person in state custody who has been sentenced  [*114]  to death n94 if
the proposed DNA testing has the ability to produce new and noncumulative
evidence material to the prisoner's claim of innocence n95 regarding the
crime for which he or she was sentenced to death n96 or any other offense
that was relied upon during his or her sentencing. n97

The Act also provides that no state shall enforce a time limit or procedural
default rule to deny a state prisoner under a death sentence the ability to
present in state court any new, noncumulative evidence obtained through DNA
testing that establish a "reasonable probability" the he or she did not
commit the crime. n98

Opponents of post-conviction DNA testing argue that the requirements set
forth in the Act would impose significant burdens on the states, namely
substantial costs and flooded courtrooms. n99 However, states that have
enacted legislation similar to the Act have found these concerns to be
unfounded. While providing DNA testing for indigent prisoners would result
in costs to the state, the relatively modest costs will decline as pre-trial
testing becomes more routine. n100 Additionally, as DNA testing would be
provided only to prisoners who meet certain standards - for example, the
evidence was not tested during trial and that such testing would likely
provide probative results - the number of frivolous requests would be
limited. n101

 [*115]

Part V: Constitutional Necessity for Federal Legislation

Article I of the 14[su'th'] Amendment of the United States Constitution
provides that "no state shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process
of law." n102 The 8[su'th'] Amendment further protects citizens of the
United States from "cruel and unusual punishments." n103 Considering these
two provisions, a state's refusal to review newly found, exculpatory
post-conviction evidence because of post-conviction evidentiary time
restrictions would violate a prisoner's constitutional rights, especially in
capital cases. n104

However, in Herrera v. Collins, the Supreme Court of the United States held
that Texas's refusal to review an inmate's newly discovered evidence n105
did not "transgress a principle of fundamental fairness 'rooted in the
traditions and conscience of the people', so as to violate the Fourteenth
Amendment." n106 Chief Justice William  [*116]  Rehnquist, writing for the
majority, further held that "a claim of 'actual innocence' is not itself a
constitutional claim," n107 and that "claims of innocence based on newly
discovered evidence have never been held to state a ground for federal
habeas relief absent an independent constitutional violation occurring in
the underlying state criminal proceeding." n108 A majority of the Court did
concede, however, that it would be unconstitutional for a state to impose a
punishment when there was "a truly persuasive demonstration of actual
innocence" made after a trial. n109

Reflecting on the Court's decision in Herrera, it is clear that federal
legislation is necessary and proper to ensure that federal and state
governments will take the appropriate steps in allowing post-conviction DNA
testing and preservation of biological evidence. n110 Unless a state revokes
its statute of limitations for post-  [*117]  conviction DNA evidence, many
prisoners claiming their innocence with DNA evidence will be caught between
state law and the rationale proclaimed in Herrera, and therefore left
without further recourse. If fact, many prisoners may find themselves in an
impossible scenario. He or she may know that a DNA test would prove their
innocence, but they are not able to get a hold of the evidence to be tested
- either because state officials refuse to release the evidence or because
the evidence has been destroyed. Even if the evidence was obtained and a DNA
test result is found to be in the prisoner's favor, the state may still
refuse to consider it because of post-conviction evidentiary time
restrictions. n111

Unless a prisoner can get past the state's restrictions, they have no hope
of constitutional relief from the Supreme Court, because as the Court stated
in Herrera, a "claim of innocence is not a constitutional right." n112
Because the Court will not interfere with a state law denying the review of
evidence found past the statutory time period, n113 the only way the Supreme
Court is willing to help a prisoner with a claim of innocence is if the
prisoner already has the newly found evidence and it is so clearly
exculpatory that a state's keeping of the inmate in prison would be a clear
violation of the Constitution. n114

The result is that the prisoner is trapped between a state law that won't
allow the testing of DNA evidence and the Supreme  [*118]  Court decision in
Herrera stating that the Court will not review the case because he or she
does not have an exculpatory "colorful showing of actual innocence." n115 In
this case, it is the DNA test itself that could provide the evidence of
innocence, and without it, the prisoner has no chance of federal habeas
relief. n116

A prime example of the problems a prisoner with a claim of innocence faces
can be seen in the case of Kenneth Charron, a Missouri man who has spent
almost 14 years in prison for a conviction of rape and robbery. n117 Charron
claims that his innocence could be proven by submitting evidence to DNA
testing, a technology that was not available to him at the time of his
trial. n118 The problem Charron faces, however, is that the evidence is in
the custody of the Circuit Attorney, who refuses to turn the evidence over
for testing. n119 Because Missouri law requires that new evidence be
submitted within 15 days of conviction, n120 Charron attempted to appeal to
the federal courts. n121

Since Charron failed to raise the issue of DNA testing in a state court and
because of the time limits set by the Federal Anti-Terrorism and Effective
Death Penalty Act of 1996, which helps states shorten the appeals process
and allows them to limit a prisoner's habeas corpus appeals, the federal
courts refused to hear his appeal. n122

The Supreme Court claims that when a state prisoner finds himself or herself
with evidence of his or her innocence but is nonetheless precluded by
procedural bars from proving it, he or she is  [*119]  not completely left
without recourse. n123 As a last resort, a prisoner may request an executive
clemency or pardon. n124 For a prisoner with a claim of innocence based on
DNA evidence, he or she would first have to request the governor or pardon
board to grant approval for the DNA test, and if the results were in the
prisoner's favor, then he or she must request either a full pardon or new
trial. n125

The idea of putting a claim of innocence - especially a claim that could be
so conclusively proven with DNA - into the hands of political appointees
defiles the entire purpose of the Constitution. n126 As defined by the U.S.
Supreme Court, a pardon is an "act  [*120]  of grace, proceeding from the
power entrusted with the execution of laws, which exempts the individual, on
whom it is bestowed, from the punishment the law inflicts for a crime he has
committed." n127 As the dissent in Herrera stated, we no longer live under a
government of laws once the exercise of legal rights turns on acts of grace.
n128 "The very purpose of the Bill of Rights was to withdraw certain
subjects from the vicissitudes of political controversy, to place them
beyond the reach of majorities and officials and to establish them as legal
principles to be applied by the courts." n129

One must also question whether a governor or a pardon board is able to make
as equal and fair of a determination of one's guilt or innocence as a judge
or jury. n130 One area of concern is whether a governor has the necessary
time available to make a decision as  [*121]  important as whether someone
should be executed or not. n131 For example, from the time he took office in
1995 through August 2000, George W. Bush, as the former governor of Texas,
approved 135 executions, n132 approximately one death penalty case every two
weeks. n133 By his account, he found time to review every case while he was
governing Texas and campaigning for the presidency. n134

In making his decision on whether to grant clemency for a prisoner, former
Governor Bush had the help of the eighteen-member Texas Board of Pardons and
Parole. n135 Made up of the Governor's appointees, the Board votes on all
clemency applications and sends its decisions to the Governor. n136 In a
1998 lawsuit against the Board, n137 testimony revealed that the board
members heard over 5,000 pardon and parole requests a year. n138 While the
number of prison inmates more than doubled in the last six years, no similar
increase has been made to the board's staff. n139

If the Act is passed, a prisoner with exculpatory evidence of his or her
innocence will no longer be trapped between restrictive state evidentiary
laws and the lack of federal recourse. n140 Instead, the changes made to
state post-conviction evidentiary laws would ensure that a prisoner has the
right to test evidence in the hands of the government, conditional only on
the probability of its exculpatory nature, and not on strict timing
requirements. n141 Also, the requirement  [*122]  under the Act which would
preserve all biological evidence for the length of a prisoner's sentence
n142 would ensure that a prisoner would be able to prove his or her claim of
innocence through DNA testing without the concern that the state could
destroy the evidence at any time. n143

The Act would also move the determination of guilt or innocence back into
the proper hands of the judicial system. n144 The provisions of the Act
would give a prisoner the right to prove his or her innocence in court n145
rather then plead their case to governors, who are often preoccupied with
official state business, or clemency boards with case loads beyond their
means. n146

Part VI: Similar State Legislation

If passed, the Act would require the states to adopt legislation equal to
the changes made to the federal law. n147 Many states, realizing the
important role DNA testing plays in the pursuit of justice, have passed
statutes to guide the courts on DNA requests made by inmates. n148 For
example, arguments in favor of giving inmates more access to DNA testing
were successful in Arizona, Oklahoma and Tennessee, but only for those
prisoners receiving a sentence of death or life imprisonment. n149 Similar
legislation was passed in Washington, but only applies to those sentenced to
death. n150

At the end of 2000, only three states - New York, Illinois and California -
had laws giving inmates the right to post-conviction DNA testing equal in
breadth to what the Act would provide. n151 During the first half of 2001,
several states have adopted similar legislation. n152 The most notable
states to adopt the legislation are  [*123]  Texas and Virginia, who have
fought long and hard to keep strict statutes of limitations regarding
post-conviction evidence.

Pioneering States

A. New York

In 1994, the New York State Legislature amended New York Criminal Procedure
Law 440.30 to authorize post-conviction DNA testing in certain
circumstances. n153 The statute requires a court to grant a prisoner's
request for post-conviction DNA testing if the court makes two
determinations. n154 First, the court must find that "the specified evidence
containing DNA was secured in connection with the trial resulting in the
judgment." n155 Second, if a DNA test had been conducted on such evidence
and the results had been admitted in the trial resulting in the judgment,
the court must determine that "there exists a reasonable probability that
the verdict would have been more favorable to the defendant." n156

New York has found that "a statutory right to post-conviction DNA testing,
coupled with an appropriate standard, can produce results both just and
practical." n157 In fact, since the enactment of the statute, more than
seven people were exonerated by post-conviction DNA testing. n158

Not only has NYCPL 440.30 been found to be effective, it has also proven to
critics of post-conviction DNA testing legislation that a statutory right to
the testing will not cause an avalanche of appeals and delays. n159 By
restricting post-conviction DNA testing to cases where the results would be
clearly exculpatory, New York has managed to keep the number of appeals
based on the testing to a workable number. n160 As stated above, under the
New York law, requests for post-conviction DNA testing will only be granted
if  [*124]  there is "reasonable probability" that the verdict would have
been more favorable to the defendant had the results been admitted at trial.
n161 A court would reject a request for testing when it had determined that
"there was not a reasonable probability that the verdict would have been
more favorable to the defendant even with the results of a DNA test." n162

New York's law enforcement community has also been supportive of the value
of DNA testing. n163 Referencing post-conviction DNA testing, former New
York Police Commissioner Howard Safir stated that he has "seen the immense
value of DNA evidence as both an inculpatory and exculpatory tool for law
enforcement," n164 and that the "existence of a statutory requirement [for
post-conviction DNA testing] makes a significant difference in the pursuit
of justice." n165

B. Illinois

Like New York, Illinois has a statute allowing inmates to request
post-conviction DNA testing. n166 So far, under its law, fourteen Illinois
prisoners have been exonerated. n167 Enacted in 1997, Illinois Code of
Criminal Procedure 116-3 is drawn narrowly. n168 Similar to the New York
law, prisoners must meet a certain criteria for the law to apply. n169 An
inmate's conviction must have occurred before DNA technology was used in
criminal investigations - meaning that the statute would only be useful for
crimes committed more than 10 years ago. n170 Furthermore, the conviction
has to be  [*125]  based solely on witness identification. n171 Finally, the
evidence to be tested must have been in the custody of law enforcement from
the time of trial. n172

Also similar to the New York law, the Illinois law will not allow
post-conviction DNA testing if there is "substantial corroborating evidence
of guilt." n173 For example, if a convict was identified as a rapist by the
victim and then confessed to the crime or claimed that the sex was
consensual, the convict would not be entitled to have his case reopened
under the DNA testing statute. n174

The Illinois law also contains safeguarding provisions to reduce the number
of frivolous requests filed by otherwise qualifying prisoners. n175 For
example, a prisoner found to have made an unjustified motion under 116-3
could jeopardize his or her credit for time served. n176

C. California

On September 28, 2000, Governor Gray Davis of California signed legislation
allowing post-conviction DNA testing. n177 Like the New York and Illinois
statutes, California Penal Code 1405 allows convicted felons to seek DNA
testing in order to establish a claim of innocence and demonstrate that
genetic evidence could have affected the outcome of his or her trial. n178
Although passed too recently to examine the effects of the new law, it is
inevitable that many cases will be overturned based on post-conviction DNA
evidence. n179

 [*126]  Under the California law, a prisoner serving a term of imprisonment
may make a motion requesting DNA testing before the trial court that entered
his or her conviction. n180 The motion, verified under oath by the prisoner,
must explain why the identity of the perpetrator should have been a
significant issue in his or her trial. n181 Additionally, the prisoner's
motion must explain how the requested DNA testing would raise a "reasonable
probability" that he or she would have had more favorable results at trial.
n182 Finally, the prisoner must make a reasonable attempt to identify the
evidence to be tested and the type of DNA testing sought. n183

Based upon the success of the post evidentiary laws passed in New York and
Illinois - and the potential success of the California law - it is clear
that the provisions of the Act would help other states in reducing the risk
of imprisoning or executing an innocent man or woman. n184 Since New York
and Illinois enacted laws allowing post conviction DNA testing, 21
wrongfully convicted prisoners have been released from their prisons. n185
If the rest of the states adopt the provisions of the Act, it is evident
that this number would dramatically rise.

Welcomed Additions

Several states have been adamant in keeping a short and strict statute of
limitations regarding post-conviction evidence, making post-conviction DNA
testing nearly impossible. n186 As a result, several prisoners claiming
their innocence have come close to being executed while ultimately
exonerated because of DNA evidence. n187 Recently, two states with the
strictest post-conviction evidentiary  [*127]  laws have passed laws similar
to the provisions of the Act - Texas and Virginia.

A. Texas

Nowhere was the need for legislation similar to the Act greater than in
Texas, which leads all other states in executions. n188 On April 5, 2001,
Texas Governor Rick Perry signed legislation that removes post-conviction
DNA testing from the state's 30-day post-conviction evidentiary statute of
limitations. n189 Under the new legislation, Texas must insure the
preservation of biological evidence that was in the possession of the state
during the prosecution of the case n190 that might establish the identity of
the person who committed the offence or any element of the offense for which
the prisoner was convicted. n191 In capital cases, the evidence must be
preserved until the inmate is executed, dies, or released on parole. n192 In
non-capital cases, the evidence must be preserved until the prisoner dies,
completes his or her sentence, or is released. n193

If a convicted prisoner wants to access evidence for DNA testing, under the
new Texas law, the prisoner may submit a motion to the court if the evidence
was secured in relation to the conviction being challenged n194 and is in
the possession of the state during the trial. n195 Additionally, the
evidence must not have been previously subjected to DNA testing because DNA
testing was not available n196 or, if the evidence was previously tested, it
may be re-tested subject to new techniques that provide a "reasonable
likelihood" of more accurate results. n197

Before the adoption of the new legislation, Texas law required that in order
to obtain a new trial based on newly discovered evidence, a prisoner had to
file a motion within 30 days of his or her  [*128]  sentencing. n198 Because
of this strict evidentiary rule, prisoners found it nearly impossible to
obtain post-conviction DNA testing and could only hope for clemency or a
pardon. n199

An example of the power of post-conviction DNA testing can be seen in the
case of A.B. Butler, Jr. who was pardoned by former Texas Governor George W.
Bush in May of 2000 after spending 17 years in prison for a crime he did not
commit. n200 Serving a 99-year sentence for rape and kidnapping, Butler
learned in 1990 of the FBI's use of DNA testing. n201 He then unsuccessfully
attempted to obtain a DNA test for seven years but was continually barred by
Texas' post-evidentiary laws. n202 Only after obtaining the help of
Centurion Ministries, a New Jersey based group that helps free the
wrongfully convicted, n203 did Texas officials consent to the testing. n204
While Butler was ultimately exonerated, the amount of time he spent in jail
would have been drastically reduced had Texas allowed exculpatory
post-conviction evidence to be entered beyond its 30-day limit. Under the
provisions Texas' new legislation, Butler would have received DNA testing
shortly after learning of its availability - not 10 years later.

B. Virginia

In February of 1999, the General Assembly of Virginia rejected legislation
that would extend Virginia's "21-day rule" for hearing new evidence after
sentencing. n205 However, a reintroduced bill was passed by the House and
Senate and ultimately signed into law by Governor James Gilmore on May 5,
2001. n206 Under the new legislation, all biological evidence collected or
obtained during the prosecution of a prisoner who was convicted of a felony
but not  [*129]  sentenced to death must be preserved for fifteen years.
n207 The court, in its discretion, may order that the evidence be retained
for a longer period. n208 In cases involving a death sentence, all
biological evidence must be retained until the judgment is executed. n209

The new legislation also allows a convicted prisoner to apply for a new
scientific investigation of any biological evidence related to his or her
conviction if: the evidence was not known or available at the time of
conviction n210 or the evidence was not tested because the technology was
not available at the time of conviction; n211 the evidence is subject to "a
chain of custody sufficient to establish that the evidence has not been
altered, tampered with, or substituted"; n212 the testing is "materially
relevant, noncumulative, and necessary" in proving the prisoner's innocence;
n213 the testing involves a method employed by the Division of Forensic
Science; n214 and the prisoner has not reasonably delayed the filing of the
petition for testing. n215

While the new law will be welcomed by Virginia prisoners who claim they can
prove their innocence through DNA testing, it is too late to help Joseph
Roger O'Dell, who was executed in July of 1997. n216 O'Dell was arrested in
1985 for murder, rape and sodomy. n217 He was convicted of these crimes
based mainly on blood evidence and testimony of a jailhouse "snitch." n218
After his conviction and sentence of death, O'Dell made unsuccessful appeals
to the Virginia Supreme Court, Virginia Federal District Court, and the U.S.
Supreme Court. n219 During the U.S. Supreme Court appeal, Justice Harry
Blackmun dissented by stating that there were "serious questions as to
whether O'Dell committed the crime" and warned of "the gross injustice that
would result if an innocent man were sentenced to death." n220

 [*130]  After his conviction, O'Dell learned of the availability of DNA
testing and began petitioning the Virginia Circuit Court for the release of
evidence for testing. n221 O'Dell's requests were denied, and he was
executed in 1997. n222 Questioning his guilt, several anti-death penalty
groups continued to push for DNA testing even after O'Dell's death. n223 The
courts denied their requests and "suggested that the evidence be disposed of
as required by law." n224 In March of 2000, without ever being submitted for
DNA testing, the evidence that could have settled all of the questions
regarding O'Dell's guilt or innocence was destroyed. n225

Not all Virginia inmates who were denied post-conviction DNA testing were as
unlucky as O'Dell. Earl Washington, Jr., a mentally retarded farmhand, was
pardoned in September of 2000 after spending 17 years in prison for a murder
he did not commit. n226 During most of those 17 years, Washington's lawyers
struggled to prove his innocence through DNA evidence. n227 Washington was
within nine days of his execution in 1994 when his death sentence was
commuted to life by Governor L. Douglas Wilder. n228 The Governor commuted
the sentence when an initial DNA test raised doubts about Washington's
guilt. n229 Washington was pardoned because state officials insisted that
the test was not fully conclusive. n230 After pushing for six years for
additional DNA testing, a new test proved that it was a known convicted
rapist that had actually committed the crime. n231

This was where Washington's luck ran out. Wilder refused to also recommend
parole for a separate assault conviction Washington received which carried a
30-year sentence. n232 State officials are recalculating his remaining
sentence to see whether he may now be eligible for parole. n233 Washington's
lawyers contend that had he not been wrongfully convicted on the murder
charge, he would  [*131]  have been released from jail on the assault charge
due to good behavior several years ago. n234

Part VI: Conclusion

It is clear that without federal legislation requiring the availability of
post-conviction DNA testing and the preservation of evidence, the integrity
of our current system of justice will continue to suffer. The presumption of
innocence is a fundamental premise of the American criminal justice system.
n235 If we do not take all appropriate measures necessary to fairly,
efficiently and justly determine one's guilt or innocence, this premise is
severely undermined. Without the safeguards provided for in the Act, more
prisoners claiming their innocence will be left with executive clemency or
pardon as their only hope for justice.

If the Act is passed, a prisoner with exculpatory evidence of his innocence
will be able to present that evidence to a court of law. n236 Not only would
a prisoner with proof of his or her innocence be exonerated of the crimes
for which he or she was convicted, but it is possible that such testing
would lead to the determination of the person who actually committed the
crime.

While critics are quick to raise the possibility of flooded courtrooms and
high costs of DNA testing, their claims are quickly refuted by looking to
the states which have adopted measures similar to those provided for in the
Act. n237 However, even if the courts would be busy hearing cases previously
settled years ago and states would be forced to pay for DNA testing for
indigents, these problems should not be more troubling than the risk of
executing an innocent man or woman. n238

It is highly doubtful that the Framers of the Constitution would have
considered overburdened courts and potential costs involving evidentiary
testing to outweigh a person's due process rights. n239  [*132]  The United
States has taken much pride on the fairness and accuracy of its Constitution
and criminal justice system. Although the United States is one of the last
modern countries still endorsing the death penalty, n240 by adopting the
Act, the U.S. can continue to enforce its laws and punishments, but in a
more fair and accurate manner. n241

FOOTNOTES:
n1. Statement by George Ryan, Republican Governor of Illinois, who, in
January of 2000 imposed a moratorium on capital punishment after 13 men were
released from death row after proving they were wrongly convicted. Jonathan
Adler, Newsweek, The Death Penalty on Trial, June 4, 2000 at 3, 7, available
at http://www.msnbc.com/news/418243.asp (last visited Sept. 9, 2000).

n2. See Death Penalty Information Center, at
http://www.deathpenaltyinfo.org/dpicexec.html (last visited Sept. 9, 2001).

n3. See Brooke A. Masters, Executions Decrease for the 2[su'nd'] Year; Va.,
Texas Show Sharp Drops Amid a National Trend, Wash. Post, Sept. 6, 2001, at
A01.

n4. See Hearing on Protecting the Innocent: Ensuring Competent Counsel in
Death Penalty Cases, 107[su'th'] Cong. (1[su'st'] Sess. 2001) (statement of
Patrick Leahy, Senator, Vermont). See also Raymond Bonner, Death Row Inmate
is Freed After DNA Test Clears Him, N.Y. Times, Aug. 24, 2001, at A11.

n5. See The Innocence Protection Act of 2000: Hearings on H.R. 4167 Before
the House Judiciary Committee on Crime, 106[su'th'] Cong. (2[su'nd'] Sess.
2000) [hereinafter Hearings] (statement of Honorable William D. Delahunt,
Representative, Massachusetts). See also Rhonda McMillion, Pulling the Plug
on Executions: ABA's Call for Death Penalty Moratorium Sparks Debate in
Congress, A.B.A. J., Nov. 2000, at 99.

n6. See Hearings, supra note 5 (statement of Hon. William D. Delahunt). See
also Alan Berlow, The Wrong Man, at
http://www.theatlantic.com/issues/9nov/9911wrongman.htm (last visited Feb.
9, 2001) (explaining that "the reasons for these miscarriages of justice
range from simple police and prosecutorial error to the most outrageous
misconduct, such as the framing of innocent people, and everything in
between: perjured testimony, erroneous eyewitness testimony, false
confessions (including the confessions of innocent defendants), racial bias,
incompetent defense counsel, and overzealous police officers and prosecutors
who may or may not genuinely believe that they have the perpetrator of a
heinous crime").

n7. See Mark Hansen, The Great Detective, A.B.A. J., Apr. 2001, at 37,
42-44. See also Kay Lazar, Tiny Evidence Changing the Face of the Criminal
Justice System, Boston Herald, Sept. 24, 2000, at 8 (explaining that
Deoxyribonucleic Acid (DNA) is a cellular acid that carries a person's
genetic code). See also Andrew Olivastro, DNA Testing Creates Second
Chances, at http://www.policy.com/news/dbrief/dbriefarc695.asp (last visited
Sept. 5, 2000) (stating that if a person's DNA does not match the DNA left
in biological evidence left at a crime scene, he or she may be exonerated).

n8. See Hearing Before the House Committee on Government Reform Subcommittee
on Government Efficiency, Financial Management and Intergovernmental
Relations: DNA Technologies, 107[su'th'] Cong. (1[su'st'] Sess. 2001)
(statement of Barry C. Scheck, Professor of Law, Benjamin N. Cardozo School
of Law).

n9. See The Innocence Protection Act of 2000: Hearings on S. 2073 Before the
Senate Judiciary Committee, 106[su'th'] Cong. (2[su'nd'] Sess. 2000)
(statement of Bryan Stephenson, Executive Director, Equal Justice Initiative
of Alabama). See also Jim Dwyer, Peter Neufeld, & Barry Scheck, Actual
Innocence: Five Days to Execution and Other Dispatches From the Wrongfully
Convicted 218 (2000) (stating that "In thirty-three states, any claim of
innocence based on new evidence must be brought to court within six months
of the final appeal. Only seven states permit the motion at any time" ).

n10. See Dwyer et al., supra note 9, at xvi.

n11. See The Innocence Protection Act of 2000: Hearings on S. 2073 Before
the Senate Judiciary Committee, 106[su'th'] Cong. (2[su'nd'] Sess. 2000)
(statement of Peter Neufeld, Co-Director, Innocence Project, Benjamin N.
Cardozo School of Law; Commissioner, New York State Forensic Science
Commission; co-author, Actual Innocence).

n12. S. 486, 107[su'th'] Cong. (1[su'st'] Sess. 2001) introduced to the
Senate on March 7, 2001 (S. 486 was originally introduced to the Senate
during the 106[su'th'] Cong. (2[su'nd'] Sess. 2000) as S. 2073, by Senator
Patrick Leahy, D-VT on February 10, 2000), and H.R. 912, 107[su'th'] Cong.
(1[su'st'] Sess. 2001) introduced to the House on March 7, 2001 (H.R. 912
was originally introduced to the House during 106[su'th'] Cong. (2[su'nd']
Sess. 2000) by Congressman William D. Delahunt, D-MA on April 4, 2000).

n13. See Amy Worden, Crime Bill Pushed in Last Month of Congress; APB
Online, Inc., available at www.apbonline.com (last visited Sept. 8, 2000)
(stating "the Innocence Protection Act ... [is] a package of reforms aimed
at reducing the risk of wrongful execution. It would allow convicted
offenders to prove their innocence through DNA testing, help states provide
competent legal services and enable those who prove their innocence to
receive compensation for their incarceration").

n14. See David E. Rovella, Fixing the Penalty: Democrats Push DNA Testing
Bill to Prevent Wrongful Executions, but GOP is Wary; Nat'l L.J., Vol. 22,
No. 44, June 26, 2000, at A1. Under Article 1, Section 8, Clause 18 of the
U.S. Constitution, Congress has the power to enact laws in order to enforce
its constitutionally vested powers. U.S. Const. Art. I, 8, cl. 18. If
Congress is seeking an objective that is within the specifically enumerated
powers, then Congress can use any means that is (1) rationally related to
the objective Congress is trying to achieve; and (2) it must not violate any
specific constitutional provision. See also McCulloch v. Maryland, 17 U.S.
316 (1819) (explaining that Congress may not enact legislation in order to
regulate a general police power). See e.g., U.S. v. Lopez, 514 U.S. 549
(1995) (stating that Congress may use its taxing and spending powers to
"provide for the defense and general welfare of the United States... .").
U.S. Const. Art. I, 8, cl. 1. The Supreme Court has held that Congressional
conditions placed upon the distribution of federal funds to the states is
usually justified under the Necessary and Proper clause. See e.g., South
Dakota v. Dole, 483 U.S. 203 (1987) (holding that the withholding of federal
highway funds from states that allow individuals under the age of twenty-one
to purchase or possess alcoholic beverages is a permissible use of Congress'
spending power).

n15. See A Real Crime Bill, Wash. Post, July 3, 2001, at A18. See also Bruce
Alpert, Congress May Mandate Use of DNA Tests in Some Criminal Cases,
Newhouse News Service, Feb. 29, 2000 (stating that under "Leahy's bill,
states could lose federal grants if they either deny reasonable requests for
DNA testing that could produce evidence of guilt or innocence or if they
don't adopt adequate procedures for preserving DNA material"). Because of
the increasing use of DNA testing in crime solving, the availability of
federal funds is paramount. As of June, 2001, all fifty states have enacted
statutes that require the collection of DNA from persons convicted of sex
crimes; thirty-four states require the collection of DNA from persons
convicted of serious crimes, in addition to sex crimes; twenty-six states
have laws requiring DNA to be collected from juvenile offenders; eighteen
states have access to the FBI's DNA index; and last year, at least nine
states changed their DNA collection statues to include most crimes. Hearing
Before the House Committee on Government Reform, Subcommittee on Government
Efficiency, Financial Management and Intergovernmental Relations: DNA
Technologies, 107[su'th'] Cong. (1[su'st'] Sess. 2001) (statement of Mike
Lawlor, Representative, Chair of Judiciary). Due to increased testing, many
states have turned to the federal government for help. For example, last
year, California, Florida, Minnesota, New York, Pennsylvania, Texas and
Washington were the recipients of more that $ 7 million from the U.S.
Department of Justice for DNA sample analysis.). Id.

n16. H.R. 912, tit. I; S. 486, tit. I. See also Joe Volk, Executive
Secretary of The Friends Committee on National Legislation; Letter to Sens.
Feinstein and Schumer: Support the Innocence Protection Act, Sept. 15, 2000,
available at http://www.fcnl.org/issues/cri/sup/death feinstein.htm (last
visited Oct. 25, 2000) (stating that "... the Innocence Protection Act's
broader language with regard to DNA evidence would provide more protection
for the innocent. Defendant's would be able to request DNA evidence that
'may produce noncumulative, exculpatory evidence relevant to the claim of
the applicant that the applicant was wrongfully convicted or sentenced' ...
[and] calls for the preservation of 'any biological material secured in
connection with a criminal case for such period of time as any person
remains incarcerated in connection with that case'.").

n17. See e.g., 30 Attorneys General Sign Letter Expressing DNA Testing Bill
Concerns; National Association of Attorneys General Home Page, at
http://www.naag.org/legislation/june/dna.html (last visited Oct. 25, 2000).

n18. The Innocence Protection Act of 2000: Hearings on H.R. 4167 Before the
House Judiciary Committee on Crime, 106[su'th'] Cong. 2[su'nd'] Sess. (2000)
(statement of Eliot Spitzer, New York State Attorney General), 2000 WL
19304895 (stating that "while I appreciate and respect the federalism
concerns raised by my colleagues in state government, DNA testing is too
important to allow some states to offer no remedy to those incarcerated who
may be innocent of the crimes for which they were convicted"). It should
also be noted that, according to a Newsweek poll, almost 90% of Americans
support the idea of federal guarantees of DNA testing. Adler, supra note 1.

n19. See, e.g., Hearings, supra note 18 (statement of Eliot Spitzer),
(describing New York Criminal Procedure Law 440.30 as authorizing New York
trial courts to order post-conviction DNA testing when it determines that:
1) the evidence containing DNA was secured in connection with the trial
resulting in the judgment; and 2) that if a DNA test had been concluded on
such evidence that the results had been admitted in the trial resulting in
the judgment, "there exists a reasonable probability that the verdict would
have been more favorable to the defendant").

n20. See Daniel B. Wood, DNA Testing: No Longer Just for Prosecutors,
Christian Sci. Monitor, Sept. 18, 2000, available at
http://www.csmonitor.com/durable/2000/09/18/p3s1.htm, (last visited Oct. 25,
2000). Seven states, including Delaware, Florida, Louisiana, Maryland,
Missouri, New Jersey and South Dakota have rejected legislation guaranteeing
inmate access to DNA testing. Robert Tanner, States are Slow to Grant DNA
Testing to People Seeking to Prove Innocence, St. Louis Post-Dispatch, June
22, 2000, at A10.

n21. See generally, Hearings, supra note 9 (statement of Bryan Stephenson).

n22. Michael L. Radelet & Hugo Adam Bedau, ABA's Proposed Moratorium: The
Execution of the Innocent; 61 Law & Contemp. Probs. 105 (1998). See also
Mark Hansen, More for Moratorium: ABA Conference Bolsters Momentum to Halt
Executions, A.B.A. J., Dec. 2000, at 92.

n23. See Sara Rimer, Support for a Moratorium In Executions Gets Stronger:
Growing Number of Cities Express Unease, N.Y. Times, Oct. 31, 2000, at A-18.
See also McMillion, supra note 5.

n24. Radelet & Bedau, supra note 22, at 105.

n25. Morton Mintz, #15 Mort Wants to Know: Death Penalty Madness - Shouldn't
the Press Be Asking Hard Questions About Death Row In-Justice?, at
http://www.tompaine.com/news/2000/03/17/ (last visited Oct. 25, 2000).

n26. Id.

n27. Adina Yoffie, Fatal Error: The State of the US Death-Penalty System, at
http://www.princeton.edu/progrev/99-00/n7 ay.html (visited Oct. 5, 2000)

n28. Mintz, supra note 25. In addition to the release of thirteen prisoners
from death row, Ryan was also concerned with the findings of an
investigation of the Chicago Tribune. The investigation found that
thirty-three death row inmates in Illinois had been represented at trial by
an attorney who had been disbarred; thirty-five African-American death row
inmates had been convicted by all white juries; and that jailhouse
informants were used to convict or condemn forty-six death row inmates. See
The Innocence Protection Act of 2000: Hearings on H.R. 4167 Before the House
Judiciary Committee on Crime, 106[su'th'] Cong. (2[su'nd'] Sess. 2000)
(statement of Governor George H. Ryan, State of Illinois). Interestingly,
five of the men released from death row were not set free because of a
properly working judicial system. Instead, their freedom was due to a group
of Northwestern University journalism students who, while working with an
investigator, found evidence of the men's innocence. See Berlow, supra note
6.

n29. See Mintz, supra note 25.

n30. Id. Unfortunately, the "ultimate nightmare" has occurred in the United
States - possibly several times. One study has shown that 23 innocent people
have been executed in the United States during the 20[su'th'] century,
including one in 1984. See Bedau & Radelet, Miscarriages of Justice in
Potentially Capital Cases, 40 Stan. L. Rev., 21, 36, 173-179 (1987) and M.
Radelet, H. Bedau & C. Putnam, In Spite of Innocence, 282-356 (1992). See
also Herrera v. Collins, 506 U.S. 390, 431 (1993) (Blackmun, J.,
dissenting). Not all people see the execution of an innocent person as the
ultimate nightmare. See Edward Pratt, DNA Testing is a Good Move, State
Times/Morning Advocate , May 27, 2000, at 7-B (stating that "there are
people such as U.S. Rep. Bill McCollum, a Florida Republican, who say a tiny
percentage of those who are executed might be innocent, but that is a price
worth paying for an effective death penalty").

n31. Mintz, supra note 25.

n32. Id.

n33. Yoffie, supra note 27.

n34. S. 486, 107 Cong. (1[su'st'] Sess. 2001); H.R. 912, 107 Cong.
(1[su'st'] Sess. 2001). Note that as S. 486 and H.R. 912 will be referred to
collectively as "The Act".

n35. Hearings, supra note 5 (statement of Hon. William D. Delahunt ). See
also James Leibman, A Broken System: Error Rates in Capital Cases 1973-1995,
at http://www.law.columbia.edu/instructionservices/liebman/ (last visited
Nov. 4, 2000) (finding that the courts found reversible error in 68% of all
capital cases tried in the United States. When these individuals were
retried, 82% were found not to deserve the death penalty and 7% were found
innocent of the capital crime altogether. "Our 23 years worth of results
reveal a death penalty system collapsing under the weight of its mistakes.
They reveal a system in which lives and public order are at stake, yet for
decades has made more mistakes then we would tolerate in far less important
activities. They reveal a system that is wasteful and broken and needs to be
addressed.").

n36. S. 486, tit. I, 101; H.R. 912, tit. I, 101.

n37. S. 486, tit. I, 101(a)(8); H.R. 912, tit. I, 101(a)(8).

n38. See generally, Berlow, supra note 6. The importance of bring finality
to appeals is understood. However, while deadlines are incorporated in order
to keep the judicial system manageable and to prevent prisoners from
appealing indefinitely, they can also hinder prisoners who make legitimate
albeit untimely appeals. See Steve Mills, Questions of Innocence: Legal
Roadblocks Thwart New Evidence on Appeal, Chic. Trib., Dec. 18, 2000, at 1.
These circumstances make it even more difficult for prisoner's trying to
prove they were wrongly convicted. Id.

n39. See Berlow, supra note 6.

n40. Id. See also Francis X. Clines, Pardoned Inmate's Lawyers Attack
Virginia Evidence Law, N.Y. Times, Oct. 4, 2000, at A22. The change in
Virginia's statute of limitations regarding post-conviction DNA testing is
further discussed in Part IV of this Note.

n41. Clines, supra note 40.

n42. Id.

n43. S. 486, tit. I 101(a)(8), 107 Cong. 1[su'st'] Sess. (2001); H.R. 912,
tit. I, 101(a)(8), 107 Cong. (1[su'st'] Sess. 2001).

n44. Id. See also S. 486 101(a)(4); H.R. 912 101 (a)(4) (stating "uniquely,
DNA evidence showing innocence, produced decades after a conviction,
provides a more reliable basis for establishing a correct verdict than any
evidence proffered at the original trial.").

n45. S. 486, 101(a)(1); H.R. 912 101(a)(1).

n46. S. 486, 101(a)(3); H.R. 912 101(a)(3).

n47. Id.

n48. Id.

n49. S. 486 101(a)(8); H.R. 912 101(a)(8).

n50. See Hearings, supra note 9 (statement of Bryan Stevenson). See also S.
486 101(a)(8) and H.R. 912 101(a)(8) (stating that "because DNA testing was
not readily utilized in many jurisdictions until 1994-1995, there are many
people who have been wrongly convicted of crimes in the 1970's and 1980's
who are still in prison. Some of these wrongly convicted prisoners could be
exonerated by DNA testing if a procedural mechanism were available to assist
both in facilitating a test and in providing the necessary relief if the
test revealed that the imprisoned applicant was not guilty. While dozens of
imprisoned people have already won their release after DNA testing
established their innocence, many others have been blocked from DNA testing
because postconviction remedies are no longer available to them").

n51. See Dwyer et al., supra note 9, at 218. Requests for clemency, however,
often do not lead to justice. One study showed that many persons believed to
be innocent (by the authors of the study) were refused clemency. See Bedau &
Radelet, supra note 30, at 91, and Radelet, et. al., supra note 30, at 5-10.
See also Herrera v. Collins, 506 U.S. 390, 431 (1993) (Blackmun, J.,
dissenting).

n52. See Dwyer et al., supra note 9, at 218.

n53. See Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, 110 Stat. 1214 (1996). See also Dwyer et al., supra note 9, at
218-219.

n54. See Dwyer et al., supra note 9, at 218-219. See also Barron's Law
Dictionary 214 (3[su'rd'] ed. 1996) (explaining that "the writ of federal
habeas corpus is used to test the unconstitutionality of a state criminal
conviction. It pierces through the formalities of a state conviction to
determine whether the conviction is consonant with due process of law"). See
also Berlow, supra note 6 (stating that "the radical revision of habeas law
was sold to the House of Representatives by Henry Hyde, the chairman of the
Judiciary Committee, as the 'Holy Grail" of criminal justice reform, a
long-sought change that would address what he called 'the absurdity, the
obscenity' of 'endless appeals' in death-penalty cases"). Interestingly, at
the time of the 1996's enactment, only 1% of all habeas petitions were from
death row prisoners. Id. A full analysis of habeas corpus is beyond the
scope of this Note. For further information, see generally James S. Liebman
& Randy Hertz, Federal Habeas Corpus Practice and Procedure (3d ed. 1998);
Donald E. Wilkes, Jr., Federal Post Conviction Remedies and Relief (1996).

n55. See Dwyer et al., supra note 9, at 219. A prisoner's hope for federal
relief has been restricted further by the Supreme Court's decision in
Herrerra, 506 U.S. 390, which is discussed in Part IV.

n56. S. 486 101(b)(1); H.R. 912 101(b)(1).

n57. S. 486 101(b)(2); H.R. 912 101(b)(2). See also U.S. Const. Art. I, 8,
cl. 1, (explaining "the Congress shall have Power to lay and collect Taxes,
Duties, Imposts and Excises, to pay the Debts and provide for the Common
Defence and general Welfare of the United States; but all Duties, Imposts
and Excises shall be uniform throughout the United States"); U.S. Const.
art. I, 9, cl. 3, (stating "the privilege of the writ of habeas corpus shall
not be suspended, unless when in cases of rebellion or invasion the public
safety may require it"); U.S. Const. amend. XIV, 5, (explaining "the
Congress shall have power to enforce, by appropriate legislation, the
provisions of this article").

n58. S. 486 101(b)(3); H.R. 912 101(b)(3).

n59. S. 486 102(a); H.R. 912 102(a).

n60. Id.

n61. S. 486 102(a) 2291 (a)(1); H.R. 912 102(a), 2291(a)(1).

n62. S. 486 102(a), 2291 (a)(2); H.R. 912 102(a), 2291(a)(2).

n63. S. 486 102(a), 2291 (b); H.R. 912 102(a), 2291(b).

n64. S. 486 tit. I, 102(a), chpt. 156, 2291 (c); H.R. 912, tit. I, 102(a),
chpt. 156, 2291(c).

n65. Id.

n66. S. 486 102(a),2291 (d)(1)(A); H.R. 912, tit. I, 102(a), 2291(d)(1)(A).

n67. S. 486 102(a), 2291 (d)(1)(B); H.R. 912 102(a), 2291(d)(1)(B).

n68. S. 486 102(a), 2291 (d)(1)(C); H.R. 912 102(a), 2291(d)(1)(C).

n69. S. 486 102(a), 2291 (d)(1)(D)(i); H.R. 912 102(a), 2291(d)(1)(D)(i).

n70. S. 486 102(a), 2291 (d)(1)(D)(ii); H.R. 912 102(a), 2291(d)(1)(D)(ii).

n71. S. 486 102(a), 2291 (d)(1)(D)(ii)(2); H.R. 912 102(a),
2291(d)(1)(D)(ii)(2).

n72. S. 486 102(a), 2291 (e); H.R. 912 102(a), 2291(e).

n73. Id.

n74. S. 486 102(a), 2291 (g)(1); H.R. 912 102(a), 2291(g)(1).

n75. Id.

n76. S. 486 102(a), 2291 (g)(2)(A); H.R. 912 102(a), 2291(g)(2)(A).

n77. S. 486 102(a), 2291 (g)(2)(B); H.R. 912 102(a), 2291(g)(2)(B).

n78. S. 486 102(a), 2291 (g)(2)(C); H.R. 912 102(a), 2291(g)(2)(C).

n79. S. 486 102(a), 2291(g)(3); H.R. 912 102(a), 2291(g)(3).

n80. S. 486 102(a), 2292; H.R. 912 102(a), 2292.

n81. S. 486 102(a), 2292(a); H.R. 912 102(a), 2292(a).

n82. S. 486 102(a), 2292(b)(1); H.R. 912 102(a), 2292(b)(1).

n83. S. 486 102(a), 2292(b)(2)(A)(i); H.R. 912 102(a), 2292(b)(2)(A)(1).

n84. Id.

n85. S. 486 102(a), 2292(b)(2)(B)(i); H.R. 912 102(a) , 2292(b)(2)(B)(i).

n86. S. 486 102(a), 2292(b)(2)(B)(ii); H.R. 912 102(a), 2292(b)(2)(B)(ii).

n87. See DNA Analysis Backlog Elimination Act of 2000, Pub. L. No. 106-546,
2.

n88. See Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No.
106-561, tit. I, BB.

n89. See Omnibus Crime Control and Safe Streets Act of 1968 tit I X
(codified as 42 U.S.C. 3796 kk et seq. (2000)).

n90. See Omnibus Crime Control and Safe Streets Act of 1968 (codified as 42
U.S.C. 3796 dd et seq. (2001)).

n91. See Id.

n92. S. 486 103(a)(1); H.R. 912 103(a)(1).

n93. S. 486 103(a)(2); H.R. 912 103(a)(2).

n94. S. 486 104(a); H.R. 912 104(a).

n95. Id.

n96. S. 486 104(a)(2); H.R. 912 104(a)(2).

n97. S. 486 104(a)(3); H.R. 912 104(a)(3).

n98. S. 486 104(b); H.R. 912 104(b).

n99. See Hearings, supra note 5 (statement of Hon. William D. Delahunt).

n100. Id. See also Barry Scheck; Director Innocence Project, Cardozo School
of Law, San Diego Union-Tribune, Aug. 13, 2000, at G-5 (stating that the
Justice Department claims that for a typical case, it costs between $ 2,000
- $ 5,000 to complete DNA testing). See also Alpert, supra note 15 (quoting
Scheck as stating that "[DNA testing] is a lot cheaper than keeping an
innocent person in prison. Costs for many state prisons average anywhere
from $ 20,000 to $ 25,000 a year per inmate").

n101. For example, since enacting legislation allowing post-conviction DNA
testing four years ago, Illinois has conducted fewer that 100 tests. See
Jennifer Warren, Bill Gives Inmates Right to DNA Tests Ok'd; Justice:
Legislators Send Measure to Davis on Unanimous Vote; Aim is to Prevent False
Imprisonment, L.A. Times, Aug. 31, 2000, at A1.

n102. U.S. Const. amend. XIV, art. 1.

n103. U.S. Const. amend. VIII.

n104. See generally Herrera v. Collins, 506 U.S. 390 (1993) (Blackmun, J.,
dissenting). See also id. at 431 (stating that "we are being asked to decide
whether the Constitution forbids the execution of a person who has been
validly convicted and sentenced but who, nonetheless, can prove his
innocence with newly discovered evidence. Despite the State of Texas'
astonishing protestation to the contrary ... I do not see how the answer can
be anything but 'yes'").

n105. Before Texas amended its law, in order for a prisoner to obtain a new
trial based on newly discovered evidence, he or she must have filed a motion
within 30 days after sentencing. See Tex. Rule App. Proc. 31(a)(1) (1992).
The amended Texas law, which excludes post-conviction DNA testing from the
30-day time period, is further discussed in Part IV of this Note.

n106. Herrera, 506 U.S. at 407, (quoting the standard set in Patterson v.
New York, 432 U.S. 197 (1977)). Leonel Torres Herrera was convicted of the
capital murder of a police officer and was sentenced to death. He later pled
guilty to the murder of another police officer. After conviction, in a plea
for direct review, Herrera argued that identifications made by one of the
police officer's partner had been improperly admitted. The conviction was
upheld. Herrera then unsuccessfully petitioned for state and federal habeas
corpus relief. Following the federal habeas denial, Herrera filed a second
petition for state habeas corpus relief. In this petition, Herrera claimed
that his deceased brother had confessed to murdering the police officer.
This claim was backed up by affidavits of two other people - including the
brother's son who claimed to have witnessed the murder. After this petition
was rejected - and ten years after his conviction - Herrera filed another
federal habeas corpus petition claiming his "actual innocence" of the police
officer's murder. Herrera contented that his execution would violate the
Federal Constitution under (1) the Eighth Amendment's cruel and unusual
punishment clause and (2) the Fourteenth Amendment's due process clause. The
district court granted Herrera a stay of execution so that his claim of
actual innocence and the two affidavits offered in the state petition could
be reviewed in court. On appeal, the appellate court vacated the stay and
expressed the view that newly discovered evidence relevant to the guilt of a
state prisoner was not a ground for federal habeas relief. The Supreme Court
affirmed on certiorari. Herrera was executed in 1993. See America's
Death-Penalty Lottery, The Economist, June 10, 2000.

n107. Herrera, 506 U.S. at 404.

n108. Id. at 401. The Court refers to Chief Justice Warren's decision in
Townsend v. Sain, 372 U.S. 293, stating that "where newly discovered
evidence is alleged in a habeas application, evidence which could not
reasonably have been presented to the state trier of facts, the federal
court must grant an evidentiary hearing. Of course, such evidence must bear
upon the constitutionality of the applicant's detention; the existence
merely of newly discovered evidence relevant to the guilt of a state
prisoner is not a ground for relief on federal habeas corpus." 372 U.S. 293
at 317. (Emphasis added).

n109. Herrera, 506 U.S. at 404. Note that the Court is stating that it is
the punishment that would be unconstitutional, not the lack of ability to
prove one's innocence. For a further analysis of Herrera v. Collins and its
effect on actual innocence claims, see generally, Michael J. Muskat,
Substantive Justice and State Interest in the Aftermath of Herrera v.
Collins: Finding an Adequate Process for the Resolution of Bare Innocence
Claims Through State Postconviction Remedies, 75 Tex. L. Rev. 131 (1996).

n110. S. 486 101(a)(16) and H.R. 912 101(a)(16). In Title I, Section 101 of
the Act, the drafters found that "given the irremediable constitutional harm
that would result from the execution of an innocent person and the failure
of many States to ensure that innocent persons are not sentenced to death, a
Federal statute assuring the availability of DNA testing and a chance to
present the results of testing in court is a congruent and proportional
prophylactic measure to prevent constitutional injuries from occurring."

n111. See Dwyer et al., supra note 9, at 63-73 (discussing the case of
Walter Snyder, a man in Virginia wrongly accused of rape. After spending
seven years in prison, a DNA test proved his innocence. However, because of
Virginia's 21-day evidentiary rule - which, at the time, did not have an
exception for DNA evidence - Snyder's only recourse was executive clemency).

n112. Herrera, 506 U.S. at 404.

n113. For example, see id. at 392 (stating "because state legislative
judgments are entitled to substantial deference in the criminal procedure
area, criminal process will be found lacking only where it offends some
principle of justice so rooted in tradition and conscience as to be ranked
as fundamental. It cannot be said that the refusal of Texas - which requires
a new trial motion based on newly discovered evidence to be made within 30
days of imposition or suspension of sentence - to entertain Herrera's new
evidence eight years after his conviction transgresses a principle of
fundamental fairness, in light of the Constitution's silence on the subject
of new trials, the historical availability of new on newly discovered
evidence, this Court's amendments to Federal Rule of Criminal Procedure 33
to impose a time limit for filing new trial motions based on newly
discovered evidence, and the contemporary practice in the States, only nine
of which have no time limits for the filing of such motions").

n114. Id. at 401.

n115. Id. at 404.

n116. Id.

n117. Bill Bryan, Inmate Claims DNA Test Would Set Him Free; But Appeals Law
Blocks His Efforts to Prove It, St. Louis Post-Dispatch, Jan. 27, 1999 at
B1.

n118. Id.

n119. Id.

n120. Science and the Hangman, St. Louis Post-Dispatch, June 4, 2000, at B2.

n121. Bryan, supra note 117.

n122. Id. The irony of the Missouri law allowing the Circuit Attorney to
withhold the evidence is exacerbated by the fact that Missouri has a state
program that collects blood samples from certain convicts and places the
samples into a DNA database. The Combined DNA Index System (CODIS) compares
inmate's DNA with DNA found at unsolved crime scenes. Charron has asked that
his blood be taken, but was refused by state officials who stated "if he
wants his DNA tested, he has to pay for that himself and arrange for that
himself." However, the officials did not elaborate how this was to be done
with the evidence in the hands of state officials. Id.

n123. Herrera, 506 U.S at 411.

n124. Id. It should be noted that while the Constitution grants the
President a pardon power (Art. II, 2, cl. 1), it does not require the States
to enact their own clemency systems. Id. at 414. See also id., (stating
"executive clemency has provided the 'fail safe' in our criminal justice
system"). An in-depth analysis of the constitutionality, sufficiency and
fairness of clemency as the only resort for claims of innocence is beyond
the scope of this Note. For further analysis of this issue, see generally,
Victoria J. Palacios, Faith in Fantasy: The Supreme Court's Reliance on
Commutation to Ensure Justice in Death Penalty Cases, 49 Vand. L. Rev. 311
(1996) and Vivian Berger, Herrera v. Collins: The Gateway to Innocence for
Death-Sentenced Prisoners Leads Nowhere, 35 Wm. & Mary L. Rev. 943 (1994).

n125. Dwyer Et. Al., supra note 9, at 218-219. For a further description of
state commutation practices, see Palacios, supra note 124, at 344-347.

n126. Herrera, 506 U.S. at 441 (Blackmun, J., dissenting). See also id.,
(stating that "whatever procedures a State might adopt to hear
actual-innocence claims, one thing is certain: The possibility of executive
clemency is not sufficient to satisfy the requirements of the Eighth and
Fourteenth Amendments. The vindication of rights guaranteed by the
Constitution has never been made to turn on the unreviewable discretion of
an executive official or administrative tribunal"). See also Palacios, supra
note 124, at 350 (stating that governors are often unwilling to grant
clemency for fear of political repercussions). By 1994, it was clear that
Justice Blackmun had had enough of the death penalty. See Callins v.
Collins, 510 U.S. 1141 (1994) (Blackmun, J., dissenting) (stating that "from
this day forward, I no longer shall tinker with the machinery of death. For
more than twenty years, I have endeavored - indeed, I have struggled - with
a majority of this Court, to develop procedural and substantive rules that
would lend more than the mere appearance of fairness to the death penalty
endeavor. Rather than continue to coddle the Court's delusion that the
desired level of fairness has been achieved and the need for regulation
eviscerated, I feel morally and intellectually obligated simply to concede
that the death penalty experiment has failed. It is virtually self evident
to me now that no combination of procedural rules or substantive regulations
ever can save the death penalty from its inherent constitutional
deficiencies. The basic question - does the system accurately and
consistently determine which defendant's "deserve" to die? - cannot be
answered in the affirmative. It is not simply that this Court has allowed
vague aggravating circumstances to be employed <elip> and vital judicial
review to be blocked. The problem is that the inevitability of factual,
legal and moral error gives us a system that we know must wrongly kill some
defendants, a system that fails to deliver fair, consistent, and reliable
sentences of death required by the Constitution.").

n127. Herrera, 506 U.S. at 413, quoting Chief Justice Marshall's holding in
United States v. Wilson, 7 Pet. 150, 160-161 (1833).

n128. Id. at 441. See also, id. (quoting Marbury v. Madison, 5 U.S. 137
(1803). "The government of the United States has been emphatically termed a
government of laws, and not of men. It will certainly cease to deserve this
high appellation, if the laws furnish no remedy for the violation of a
vested right."

n129. Herrera at 441, (quoting West Virginia Board of Education v. Barnette,
319 U.S. 624, 638 (1943)).

n130. See Erika Casriel, Bush & The Texas Death Machine, Rolling Stone, Aug.
3, 2000, at 34 (stating that "testimony revealed that the [Texas Board of
Pardons and Parole] board members handle more than 5,000 parole and pardon
requests a year, since the number of prison inmates grew from 70,000 in 1994
to 150,000 in 1999, with no concurrent increase in parole board staff"). See
also Stephen E. Silverman, Note, There is Nothing Certain Like Death in
Texas: State Executive Clemency Boards Turn a Deaf Ear to Death Row Inmates'
Last Appeals, 37 Ariz. L. Rev. 375, 389-98 (1995) (claiming that the Texas
pardon boards may not have the experience or impartiality to render
justice); The Innocence Protection Act of 2000: Hearings on H.R. 4167 Before
the House Judiciary Committee on Crime, 106[su'th'] Cong. 2[su'nd'] Sess.
(2000) (statement of Congressman Robert C. Scott, Virginia) (stating that
"the notion that the flaws in the system can be addressed through a
governor's clemency process is clearly an inadequate response to a serious
problem. Our criminal justice principles are designed to ensure a fair trial
for all accused persons. Ultimate questions of life, death or freedom should
not depend upon the politics of the moment or the popularity of the
defendant or whether the governor is in an election campaign, or any such
vagary. Furthermore, the governor's office is an inappropriate forum to
decide such cases. The governor has no subpoena power, no right or
opportunity to cross examine key witnesses or to observe witnesses subject
to cross examination by advocates familiar with the case. Nor does the
governor have other investigatory power necessary to ensure fairness. The
forum for testing the reliability of evidence is the trial, not the
political forum of the governor's office").

n131. See Casriel, supra note 130, at 34.

n132. Id. at 29.

n133. Id.

n134. See Mintz, supra note 25. In an interview with Tim Russert of NBC's
Meet the Press, Governor Bush was asked if he would "join with Governor Ryan
in invoking a moratorium on any execution of people on death row until the
system can be analyzed and through with all the introduction of DNA evidence
so you don't make a mistake?" The Governor's responded "No, I won't. Because
I'm confident that every person that has been put to death in Texas, under
my watch, has been guilty of the crime charged and has [had] full access to
the courts ... I've reviewed every case that has come across my desk - I'm
confident of the guilt of the person who committed the crime." Id.

n135. See Casriel, supra note 130, at 34.

n136. Id.

n137. The suit claimed that as Texas is the only state which does not hold
public hearings for capital case clemency cases, it thereby violated due
process and open meeting laws. Id.

n138. Id.

n139. Id.

n140. S. 486 101 and H.R. 912 101.

n141. See Hearings, supra note 9 (statement of Bryan Stevenson).

n142. S. 486 102, 2292 and H.R. 102, 2292.

n143. See Hearings, supra note 9 (statement of Bryan Stevenson).

n144. See Dwyer Et. Al., supra note 9, at 219. See also generally Herrera v.
Collins, 506 U.S. 390, 430-446 (1993) (Blackmun, J., dissenting).

n145. See generally Herrera, 506 U.S. at 430-446 (Blackmun, J., dissenting).

n146. See Casriel, supra note 130.

n147. See Rovella, supra note 14. See also notes 59-86 and accompanying
text.

n148. See Lazar, supra note 7.

n149. See supra note 20.

n150. Id.

n151. N.Y. Crim. Proc. Law 440.30 (1994), Ill. Code Crim. Pro. 116-3 (1997),
and Cal. Pen. Code 1405 (2001). See also Erin Hallissy, Charlie Goodyear,
Davis Signs Bill to Allow DNA Testing for Inmates, S.F. Chron., Sept. 29,
2000 at A1.

n152. See generally Hansen, supra note 7.

n153. N.Y. Crim. Proc. Law 440.30. See also Hearings (statement of Eliot
Spitzer), supra note 18.

n154. N.Y. Crim. Proc. Law 440.30.

n155. N.Y. Crim. Proc. Law 440.30. The New York law, in fact, is the model
for the Act. See Christi Daugherty, Freedom in a Genetic Fingerprint: DNA
Testing Can Overturn Convictions, but There are Serious Iniquities in the
Law, The Financial Times, July 22, 2000 at 22.

n156. N.Y. Crim. Proc. Law 440.30.

n157. Id.

n158. Id. See also Dwyer Et. Al., supra note 9.

n159. See Hearings (statement of Honorable William D. Delahunt), supra note
5.

n160. See Hearings (statement of Eliot Spitzer), supra note 18.

n161. Id. As an example of the selectivity of the statute, Spitzer discussed
Matter of Washpon, 164 Misc.2d 991 (Kings County 1995). In Washpon, a rape
case, the court ordered post-conviction DNA testing because the victim had
testified that she had not had sex with anyone but the rapist on the night
of the crime. Id.

n162. Id. As an example of the selectivity of the statute, Spitzer discussed
People v. Kellar, 218 A.D.2d 406 (3d Dept 1996). In Kellar, a rape case, the
court rejected a request for post-conviction DNA testing where the defendant
had conceded that he had sex with the victim, but that it had been
consensual. In this case, the results of the DNA test would not have changed
the verdict. Id.

n163. Id.

n164. Id.

n165. Id.

n166. See Ill. Code Crim. Pro. 116-3.

n167. See Mintz, supra note 25.

n168. See A Test for Innocence, The Times-Picayune, Dec. 27, 1999, at 6B.

n169. Id.

n170. Ill. Code Crim. Pro. 116-3.

n171. Ill. Code Crim. Pro. 116-3. For further discussion of the validity of
witness identification, see generally Jennifer L. Devenport, Steven D.
Penrod & Brian L. Cutler, Eyewitness Identification Evidence: Evaluating
Commonsense Evaluations, 3 Psych. Pub. Pol. & L. 338 (1997) and Dwyer et.
al., supra note 9, at 41-77.

n172. Ill. Code Crim. Pro. 116-3.

n173. Id.

n174. Id.

n175. David Heckelman, Edgar OK's Measure for DNA, Other Tests, Chicago
Daily Bulletin, Jul. 23, 1997, at 1.

n176. Ill. Code Crim. Pro. 116-3.

n177. See Cal. Pen. Code 1405 (2001). See also Hallissy et. al., supra note
151.

n178. See Howard Mintz, New Law Could Affect Hundreds of Inmates, The San
Jose Mercury News, Nov. 29, 2000.

n179. Id. (stating "because DNA technology generally was not introduced into
the state's criminal justice system until about 1993, there are possibly
hundreds of defendants in California prisons who now will have a specific
mechanism for putting their claims of innocence to the scientific test").

n180. See Cal. Pen. Code 1405(a) (2001).

n181. See Cal. Pen. Code 1405(a)(1).

n182. See Cal. Pen. Code 1405(a)(2).

n183. See Cal. Pen. Code 1405(a)(3).

n184. See generally Hearings (statement of Eliot Spitzer, New York State
Attorney General), supra note 18. See also generally The Innocence
Protection Act of 2000: Hearings on H.R. 4167 Before the House Judiciary
Committee on Crime, 106[su'th'] Cong. (2[su'nd'] Sess. 2000) (statement of
George H. Ryan, Governor of Illinois).

n185. See Hearings (statement of Eliot Spitzer) supra note 18. See also
Mintz, supra note 25.

n186. See Science and the Hangman, supra note 120.

n187. See id.

n188. As of August 31, 2001, 731 men and women have been executed in the
United States since the reinstatement of the death penalty in 1976. Death
Penalty Information Center, supra note 2. As of June 1, 2001, Texas had
executed 246 people - more that a third of the national total. Jim Yardley,
Texas Set to Shift in Wake of Furor on Death Penalty, N. Y. Times, June 1,
2001, at A1.

n189. Tex. Rule Crim . P. ch. 38, art. 38.39 (2001).

n190. Tex. Rule Crim .P. ch. 38, art. 38.39 (B)(1) (2001).

n191. Tex. Rule Crim .P. ch. 38, art. 38.39 (B)(2) (2001).

n192. Tex. Rule Crim .P. ch. 38, art. 38.39 (C)(1) (2001).

N193. Tex. Rule Crim .P. ch. 38, art. 38.39 (C)(2) (2001).

n194. Tex. Rule Crim .P. tit. 1, ch. 64, art. 64.01 (B) (2001).

n195. Id.

n196. Tex. Rule Crim .P. tit. 1, ch. 64, art. 64.01 (B)(1) (2001).

n197. Tex. Rule Crim .P. tit. 1, ch. 64, art. 64.01 (B)(2) (2001).

n198. Tex. Rule App. Proc. 31(a)(1) (1992).

n199. See Science and the Hangman, supra note 120.

n200. See Hearings, supra note 11 (statement of Peter Neufeld).

n201. See Sharon Cohen and Paul Shepard, Law, Science at Odds over DNA
Evidence, The Sunday Gazette Mail, Oct. 8. 2000, at 4A.

n202. See Hearings, supra note 11 (statement of Peter Neufeld).

n203. See Cohen and Shepard, supra note 201.

n204. See Hearings, supra note 11 (statement of Peter Neufeld).

n205. See The Case for Innocence: Four Cases, Frontline,
http://www.pbs.org/wgbh/pages/frontline/shows/case/cases/, (visited Oct. 25,
2000). At 21 days, Virginia's evidence limit was the strictest in the
nation. See also Clines, supra note 40.

n206. See generally Michael Sluss and Laurence Hammack, Gilmore Ends DNA
Time Limit; 'People Who are Wrongly Convicted Must Have a Fair Opportunity
to Prove Their Innocence', Roanoke Times & World News, May 3, 2001, at A1.

n207. Va. Code Ann. 19.2-270.4:1(A) (2001).

n208. Id.

n209. Va. Code Ann. 19.2-270.4:1(B).

n210. Va. Code Ann. 19.2-327.1(A)(I).

n211. Id.

n212. Va. Code Ann. 19.2-327.1(A)(II).

n213. Va. Code Ann. 19.2-327.1(A)(III).

n214. Va. Code Ann. 19.2-327.1(A)(IV).

n215. Va. Code Ann. 19.2-327.1(A)(V).

n216. See Four Cases, supra note 205.

n217. Id.

n218. Id.

n219. Id.

n220. Id.

n221. See Four Cases, supra note 205.

n222. Id.

n223. Id.

n224. Id.

n225. Id.

n226. See Clines, supra note 40.

n227. Id.

n228. Id.

n229. Id.

n230. Id.

n231. See Clines, supra note 40.

n232. Id.

n233. Id.

n234. Id.

n235. See Hearings, supra note 18 (statement of Eliot Spitzer).

n236. See generally Dwyer Et. Al., supra note 9, at 218-219.

n237. See Hearings, supra note 5 (statement of Honorable William D.
Delahunt).

n238. See Hearings, supra note 18 (statement of Eliot Spitzer) (stating "the
United States always has demonstrated its basic commitment of fairness to
the accused, and therefore any marginal burdens are far outweighed by the
ability to prevent the punishment of the innocent").

n239. See, e.g., Herrera, 506 U.S. 390 (Blackmun, J., dissenting).

n240. See, e.g., Yoffie, supra note 27 (stating that "the United States is
the only Western democracy that still carries out executions. Since 1976, 41
other countries have abolished the death penalty").

n241. See, e.g., New Survey Shows Overwhelming Majority Supports Changes to
Death Penalty: Democratic and Republican Lawmakers Release Poll Showing 80%
Support Reform to Capital Punishment System (visited Oct. 25, 2000)
http://justice.policy.net/proactive/newsroom/release.vtml, (visited Oct. 25,
2000) (quoting Senator Gordon Smith (R-OR) as stating "the Innocence
Protection Act will achieve [the ideal of equal justice for all] by
employing out most advanced scientific knowledge and by requiring competent
legal counsel in capital cases. Most importantly, the Innocence Protection
Act accomplishes this without weakening law enforcement's ability to
capture, try, and, if necessary, execute those who are truly guilty.").