By E.E. "Bo" Edwards
President, National Association of Criminal Defense Lawyers

The National Association of Criminal Defense Lawyers (NACDL) commends the sponsors of the Innocence Protection Act of 2003 for their commitment to ensuring greater accuracy and fairness in our criminal justice system. After years of negotiations, a compromise version of this legislation was introduced a week ago as part of a larger DNA-related legislative package and has already cleared its first hurdle by gaining approval from the House Judiciary Committee. The Act sets reasonable standards for access to DNA evidence by wrongly convicted prisoners and seeks to encourage states to improve the quality of representation in death penalty cases.

These overdue reform measures recognize that DNA testing is a valuable forensic tool that must be used to free the innocent just as it is used to convict the guilty. Although DNA testing is only available in a narrow class of cases, it has proven to be a useful lens through which system-wide problems can be examined. The Innocence Protection Act takes a small, first step toward correcting one of the most serious problems facing our justice system: inadequate representation of citizens without money to hire counsel. Forty years after the Supreme Court announced the fundamental right to appointed counsel in Gideon v. Wainwright, many states are failing miserably in their constitutional obligation to provide competent defense counsel to poor defendants. The problem is particularly acute in death penalty cases, where political pressure and emotional considerations often impair the proper functioning of our justice system.

We regret that the Act does not go further to redress the gross imbalance that exists between resources available to prosecutors as compared to resources available to defense counsel. Although Congress already gives hundreds of millions of dollars to state and local prosecutors, the Act requires that the newly authorized funds be allocated equally between capital defense and capital prosecution improvement purposes. Earlier versions of the Act did not include this highly questionable sop for state prosecutors, but this was one of many concessions deemed necessary to garner support from congressional leaders.

Additionally, while competent counsel is the principle bulwark against wrongful convictions, there are many other steps that must be taken to reduce the risk of imprisoning or executing an innocent person. The eyewitness identification procedures used in most jurisdictions are prone to error and, despite many troubling cases of false confessions, most jurisdictions do not require that police interrogations be videotaped. NACDL urges policy-makers to more fully address the systemic problems that underlie wrongful convictions.

We are troubled by a provision in the larger DNA-related bill that would eliminate the statute of limitations in certain cases. Statutes of limitations ensure that individuals do not face the impossible task of mounting a defense to decades-old accusations, when evidence of innocence may no longer be available. To override this protection, the bill only requires that DNA testing “implicates an identified person,” regardless whether the DNA was recovered within the statute of limitations. This provision is at odds with the Innocence Protection Act=s purpose of preventing wrongful convictions and should be removed. A much better approach -- used in Wisconsin, New York, and elsewhere -- is to obtain from a magistrate a “John Doe” arrest warrant containing a DNA profile as a description of the suspect. At least this approach ensures that the biological evidence is collected and tested within the limitations period.

Previous versions of the Innocence Protection Act were much stronger, and it’s a shame some Members of Congress stood in the way. Whether this compromise version achieves its purpose will depend on a variety of factors – such as the availability of federal funds and state participation in federal grant programs -- but mere passage would represent acknowledgment that our justice system is broken. This is a significant achievement for which the champions of the legislation, Senator Patrick Leahy (D-MA) and Congressmen William Delahunt (D-MA) and Ray LaHood (R-IL), deserve praise. We hope they will continue their important efforts to promote fairness and accuracy in our criminal justice system.

E.E. "Bo" Edwards, a criminal defense attorney from Nashville, became the 45th president of the National Association of Criminal Defense Attorneys in August 2003.