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National Public Radio Talk of the Nation - Transcript

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National Public Radio (NPR)

SHOW: Talk of the Nation 3:00 AM EST NPR

HEADLINE: DNA testing and the Innocence Protection Act



This is TALK OF THE NATION. I'm Neal Conan in Washington.

Earlier this week, the Senate Judiciary Committee approved a bill that's intended to help police departments around the country clear backlogs of untested DNA samples and provide better training and equipment for examiners, a widely popular proposal. But one part of the bill, called the Innocence Protection Act, is causing some controversy. This proposal would make funding contingent on preservation of biological evidence for post-conviction testing. It would give inmates on death row greater access to DNA tests, and it would improve legal counsel in capital cases. Advocates argue that post-conviction DNA tests have already cleared already over 100 people who, it turned out, were wrongly convicted. Critics say the measure would encourage unnecessary appeals and undermine the death penalty.

Later in the program, new evidence in the death of the Red Baron, the famous First World War fighter ace. And on the theory of "To Catch a Thief," an IT company wants to hire the creator of an Internet worm.

But first, DNA testing. If you have questions about this proposed legislation-how it would be funded, what changes it would bring-give us a call. If you're in forensics or in law enforcement, how will this bill affect you? Join the conversation. Our number here in Washington is (800) 989-8255; that's (800) 989-TALK. And the e-mail address is

Joining us now to explain some of this legislation is Senator Patrick Leahy, Democrat from Vermont, the ranking member on the Senate Judiciary Committee and author of the Innocence Protection Act. He's with us by phone from his office.

Good to speak with you, Senator.

Senator PATRICK LEAHY (Democrat, Vermont): Good to be with you.

CONAN: Explain to us, what does this legislation do and what would it change?

Sen. LEAHY: Well, I think the most important thing is it would give both prosecutors and defense counsel a tool that might make our justice system far more honest, far more credible, far more fair. At the outset, you should understand, just like the majority of criminal cases don't have fingerprints, the majority of criminal cases don't have DNA. But where it is, DNA is the miracle forensic tool of our lifetimes. It can convict the guilty; it can exonerate the innocent. As it's become more and more available, it shows also the flaws in the death penalty process.

But our crime labs-our courts haven't caught up with this. Rape kits have bee piling up. Labs can't keep up with the racing technology. The legal system hasn't fully recognized it. What this does-it puts this powerful tool into greater use both for our police departments, in our courtrooms. It makes some modest reforms. And one of the worst flaws in the death penalty system, the lack of adequate legal counsel in death row cases, I think-and I'm a former prosecutor-I think it's going to make the criminal justice system better.

CONAN: In terms of the DNA tests, is this designed to provide money to look at the DNA of people already convicted, people who are on death row or in prison now?

Sen. LEAHY: That would be one aspect. As we know, something like 100 people have been on death row recently-they've been exonerated. One of the people-during this whole debate, one of the people who was in the Senate Judiciary room all the time was Kirk Bloodsworth. Kirk was convicted of a heinous crime, murdering a little girl; he was put on death row. He was-they were planning to execute him. He got another appeal, they changed it to life imprisonment without parole. Everybody said what a terrible murderer he is until somebody came up with DNA. And first off, it showed Kirk Bloodsworth was not the person. He'd been locked up for year after year after year facing a death penalty-they had an innocent man. After he was released, they used the DNA for further testing and they found the man who did commit the murder. Perhaps not amazingly, he actually looked like Kirk Bloodsworth, but then they had the right person and finally, after years of that, exonerated him.

But his case is not untypical. What we want to do is make sure you don't put an innocent person on death row. But we also want to make sure that you find the person who is guilty. You know, sometimes if you lock up the innocent person, you say, 'Fine. We got the serial rapist. We got the serial murderer. Everybody can now feel safe.' Well, you've locked up the wrong person. That means the murderer or the rapist is still out there.

CONAN: Mm-hmm.

Sen. LEAHY: This should help both prosecution and defense. Most importantly, it will make our criminal justice system more fair, more reliable and, thus, give it more credibility.

CONAN: But-we're going to have Mr. Bloodsworth later in the program. But-well, a judge ordered DNA testing in his case. There's that remedy already available. Why do we need this additional legislation?

Sen. LEAHY: It's not-in his case, only after a whole lot of people worked very, very hard did they get that court order. What we want to do is make sure it's always available. A lot of states, that would not have happened. We also know that we have this backlog of half a million criminal cases with biological evidence that can't get DNA testing. That's, I believe, something like 50 to a thousand homicide cases. We've got 170,000 rape cases. And we can go back for that.

Now in the Bloodsworth case, this was something where the prosecutor, who's probably having second thoughts about this, agreed to it, but then his defense lawyer paid for it out of his own pocket. That's a sort of an alignment of the stars that you don't find very often. And we want to make sure that that's the norm, not the extraordinary exception to the norm.

CONAN: Mm-hmm. Our number, if you'd like to join the conversation, is (800) 989-8255. You can also send us e-mail:

Christine is with us from South Euclid, Ohio.

CHRISTINE (Caller): Good afternoon. I enjoy your program.

CONAN: Thank you.

CHRISTINE: I'd like to ask a personal question. Twenty-three years ago, my two-and-a-half-year-old son was murdered. What are the differences in the testing now from back in 1982 for an investigation on a young child being murdered?

CONAN: Mm-hmm. First of all, Christine, I'm terribly sorry at your loss. It doesn't go away even after all that time.

CHRISTINE: No, it doesn't. Thank you.

Sen. LEAHY: No. And when I became a prosecutor, I think the first murder case I had was a two-and-a-half-year-old child. And that was 35 years ago, and I've never forgotten it. And I can only imagine your pain as a mother is so much worse.

For one thing, all of it depends upon the investigating body to begin with. As you know, some police departments do a very good case, some do not do a very good case. This would have-and any state that wanted to be part of this program would help improve it. There is-the ability to test for DNA is much greater today, and there are new technological breakthroughs all the time. Now having said that, understand that in some cases, there will be no DNA, just as there'll be no fingerprints. But in the case where it is there, it can be an extraordinary tool, not just to exonerate the innocent, but of course, to find the find guilty party, and hopefully to find them before they're able to commit the crime again.

CHRISTINE: How would an everyday citizen like myself find out what kind of evidence there is?

Sen. LEAHY: I would that the-especially if you were a victim, I would hope that the prosecutor in the case would be willing to sit down and go over what was there. I mean, that was what I required in my prosecutor's office. I would hope that yours would. And if they would be unwilling to, I think one person you may want to talk with is your own senator, Mike DeWine, who is a co-sponsor of this legislation.

CHRISTINE: I'm glad to hear that. That was going to be my next question.

Sen. LEAHY: Yeah. Senator DeWine and I have worked very closely on this. We were both prosecutors. I mean, he's a Republican, I'm a Democrat. We try to point out this is not a partisan issue; this is something where Republicans and Democrats can and should work together. He's been very, very good on this. And I'm sure if you have a situation there, knowing him, I'm sure he'd be willing to listen to you and help you.

CONAN: Christine, thank...

CHRISTINE: Thank you...

CONAN: Thank you very much for the call. We appreciate it.

CHRISTINE: Thank you.

CONAN: OK. Bye-bye.

Senator Leahy, before we let you go, the bill would also preserve-order preservation of biological evidence, I guess, for that exact reason that Christine called.

Sen. LEAHY: Yes, and it should be. You know, this is the thing. You have some of these cases and all of a sudden you find, 'Whoops! We thought we were safe. Now that we've locked up the wrong person, how do we get the evidence to find the right person?'

And I can't emphasize this enough. This works both ways. You don't want an innocent person to be on death row; that protects nobody. But you also want to make sure you've got the evidence so if somebody has committed a crime, you can find them, especially in a heinous crime, before they commit the crime again. And oftentimes these people do.

CONAN: And quickly-response to the criticism this would clog the courts with unnecessary appeals and, well, undermine the death penalty.

Sen. LEAHY: No, I think that the-I mean, you look at the co-sponsors, look at the people who voted for it, I would guess the majority of them support the death penalty. And they wouldn't be supporting this bill if they thought it was going to undermine the death penalty. Whether you're for the death penalty or against it, you want to make sure the criminal justice system works. If people lose confidence in the criminal justice system, I can guarantee you we will see it clogged. It's when you have confidence in it, it's far easier for the criminal justice system to work effectively and efficiently.

CONAN: Senator Leahy, thanks very much.

Sen. LEAHY: Good to be with you. Thank you for covering this story. It's an extraordinarily important one.

CONAN: Thank you. Senator Patrick Leahy, Democrat from Vermont, ranking member of the Senate Judiciary Committee, author of the Innocence Protection Act. He joined us by phone from his office here in Washington.

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