There are now at least on-hundred and thirty-two Americans who have been exonerated by post-conviction DNA testing. Twelve of the exonerated were at one time on death row. Almost all of them had exhausted their appeals and post-conviction remedies. But for the serendipitous rescue by DNA, there is little doubt they would have been executed. Over forty of the exonerated were convicted of murder and many of them would have almost certainly faced execution if the death penalty had been applicable in the jurisdictions where they were tried.

Collectively, these on-hundred and thirty-two individuals have server 1,397 years in prison. With every wrongful conviction, not only does an innocent person suffer unconscionably in prison or on death row but the real perpetrator remains free to commit serious crimes. In thirty-four of the post-conviction DNA exonerations in the United States, the actual perpetrator was identified through that same DNA, preventing more crime and protecting potential victims.

The pace of post-conviction DNA exonerations has accelerated because states have begun to pass statutes that permit those claiming innocence a chance to gain their freedom through access to post-conviction DNA testing. In 1993 there were three DNA exonerations. Last year there were twenty; to date this year, eleven innocent individuals, previously convicted by juries, have been exonerated by DNA.

In 1993, our nation had one innocence project manned by a staff of two; today more than forty law schools, journalism schools and independent entities comprise the beginning of an "innocence project network." Most "projects" survive on shoe-string budgets struggling as best they can to prevent these DNA statutes from remaining unfunded mandates. But only half of the states have post-conviction DNA access laws, far fewer require the preservation of biological evidence, and many of the existing statutes are problematic and do not offer all the relief they should.

Approximately thirty states have laws providing convicted persons with some access to DNA testing to support their claims of innocence. These testing laws, however, vary widely in scope in substance. Some are comprehensive, state-funded testing programs open to all convicted persons with reasonable claims of innocence. Yet in others, the right to DNA testing is sharply limited by, for example, leaving decisions about testing to the sole discretion of prosecutors, or allowing testing only in a limited class of cases or under strict time limits. The states with sunset provisions provide such a narrow window of time in which to prepare and file DNA testing petitions that few convicted persons will be able to take advantage of them. Indeed, five of the post-conviction DNA access laws have already expired, within a year or two after their enactment, with no more than a handful of petitions filed in each state.

The current crisis in Florida is illustrative. In 2001, after the DNA exoneration of a death-row inmate who had died before his execution, Florida passed a law giving inmates the right to apply for post-conviction DNA testing if they could show that the test results were likely to exonerate them. The right was available only to those who had not pleaded guilty -- and only to those who could make their case within two years. The right to DNA testing in Florida expires October 1, 2003. The approaching deadline has left the Innocence Project overwhelmed with more than 1,000 potentially eligible Florida inmates and too few lawyers who can carefully evaluate each case.

In states without sunset provisions, inmate requests trickle in -- perhaps no more than a dozen or two petitions a year actually filed with the courts. But faced with sunset provision deadlines such as Florida's, now just a few months away, we cannot wait for innocent inmates to contact us. We must identify them. The people we represent are the lost and forgotten. The no longer have post-conviction counsel and many have mental health disabilities caused by their imprisonment for crimes they did not commit.

For a few volunteer lawyers and staff, it's a daunting task: combing through old transcripts and police and laboratory reports, assessing appropriateness, locating critical evidence and drafting compelling petitions to secure testing. During the ten years our project has been in existence, it took, on average, four years to complete the steps from initial client intake to testing. The Florida statute mandates compliance in a time frame that simply cannot be met.

Although Florida leads the country in the number of wrongfully convicted persons released from death row, there have been only two DNA exonerations. Illinois, by comparison, has twenty-one cases of DNA exoneration; New York has fourteen; Texas thirteen. Massachusetts has had seven.

On reason for this disparity is that before the new law was passed Florida courts set very high hurdles for granting post-conviction DNA testing. But the new law will not be on the books long enough to ensure that all actually innocent inmates whose cases have existing biological evidence will be freed.

There can be no doubt that the number of wrongfully convicted innocents freed by DNA testing will dramatically increase if the post-conviction DNA legislation is passed by this Congress. The number of exonerations could at least double within five years. Likewise, the apprehension of real perpetrators through DNA databank hits will also increase. DNA testing is a win-win proposition for all Americans who believe in the ideals of justice and fairness. As Attorney General Ashcroft has said, forensic DNA operates as a truth machine with the power to convict the guilty and protect the innocent in a way that will improve dramatically the efficacy of the criminal justice system. It not only enhances the ability of law enforcement to apprehend and punish the guilty and free the innocent, who languish in America's prisons, it also insulates innocent suspects from prosecution, protects potential crime victims and brings a measure of certainty and finality to crime victims and loved ones. In this way, DNA testing injects a measure of truth into the criminal justice system's search for true justice.

Greater access to DNA testing is vital, but it is not a panacea for what ails the administration of the death penalty and the rest of criminal justice in America. DNA testing's ability to right wrongs is limited to the relatively few individual cases for which biological evidence is available, can be tested, and is relevant to the crime. Law enforcement experts estimate that DNA testing is useful in fewer that one in five violent crimes. Nevertheless, innocent people have been, can, and will continue to be wrongly accused or wrongfully convicted in cases in which there is no biological evidence to get to the truth.

That is why we must apply the lessons we've learned from DNA exonerations to the majority of cases that lack DNA evidence. The DNA exonerations have provided a window into this aspect of the justice system, through which we can all see what went wrong. In case after case, we find the same flaws that have lead to wrongful convictions: witness misidentification, false confessions, misuse of forensic science disciplines not as valid or reliable as DNA technology, police and prosecutorial misconduct, and last but hardly least, poor defense lawyers.

Some of the causes of wrongful conviction can be mitigated through institutional reforms such as sequential double-blind lineups which reduce mistaken eyewitness identifications; video recording of entire custodial interrogation which prevent false confessions, and independent external audits of state and local crime laboratories to remedy the misapplication of forensic science.

But aside from these systemic reforms, on any individual case there is simply no better way to prevent wrongful convictions than to provide competent defense counsel. It is the obligation of every defense lawyer to scrutinize the prosecution's case, consult with the client, conduct a thorough and independent investigation, consult with experts, and take all other steps to determine the truth.¹ Competent counsel can uncover police practices responsible for mis-identifications, coerced or false confessions, and fraudulent forensic science.

Wealthy defendants expect and receive this kind of representation. But 90 percent of those accused of crimes are poor.

Had Jimmy Ray Bromgard competent counsel with access to funds for investigators and experts, he would not have spent fifteen years in a Montana prison before being cleared by DNA testing. In the early morning hours of March 20, 1987, a stranger snuck into a family home in Billings, Montana and raped an eight-year-old girl in her bed. The police recovered her semen-stained underpants and, from the bedding, a head hair and pubic hair that did not belong to the young victim.

Unfortunately, given the state of conventional serology in 1987, the serologist could not determine a blood type from the semen stains. Fifteen years later, DNA testing on those semen stains provided dispositive evidence of Mr. Bromgard's innocence. In the absence of serology, the only scientific evidence offered at trial was the testimony of Arnold Melnikoff, the manager of the Montana state crime laboratory.

Melnikoff testified that he had compared the head hair and pubic hair recovered from the child's bedding with reference head and pubic hairs taken from Mr. Bromgard. He stated that the hairs from the crime scene were microscopically indistinguishable from Bromgard's. He further testified that there was less than a one-in-10,000 chance that the pubic and head hair found at the crime scene did not belong to Jimmy Bromgard.

When I read this testimony, I was stunned: I knew that Melnikoff's statistical conclusions were false, without any basis in science. In 2002, a peer review committee comprised of the nations top forensic hair examiners confirmed that Melnikoff's statistics were a fraud; a microscopic re-examination of the hairs by the FBI revealed that Bromgard was excluded.

But back in 1987, the unfortunate Mr. Bromgard was assigned an attorney from a county contract system. The lawyer was a drunk and met with his client only once before trial. He hired no investigator; he retained no expert to challenge or re-examine the patently false "scientific" evidence; and he failed to conduct any investigation. He filed no pre-trial motions, even though had he filed a motion in limine on the hair statistical evidence, he most likely would have prevailed.

A few states such as Colorado and New York not only have robust public defenders but also maintain specialized capital defender offices. From time to time, an outstanding private attorney will step forward and take on a financially and emotionally draining capital case. But the defense norm for the rest of the country is substantially less excellent. On average, the poor find themselves represented by defense attorneys who lack the skill, resources and inclination to defend a case adequately. At worst, poor defendants find themselves with court-appointed attorneys who are drunk at trial, asleep during critical moments in the courtroom and who refer to their clients in terms laced with racial slurs. Unfortunately, several of the states that implement the death penalty most often - Texas, Mississippi, and Alabama - rely almost entirely upon a court-appointed attorney system to defend clients who are literally fighting for their lives.

When it comes to court-appointed attorneys, some paid as little as $1,000 per capital case (and this fee includes pre-trial and trial), clients get what they pay for. Common threads of incompetence run through the credentials of court-appointed attorneys: in Kentucky, one third of those sentenced to death had been represented by lawyers who were later disbarred, suspended or convicted of crimes; in Illinois, in thirty-three of the last one-hundred thirty-one people executed were represented by attorneys who were later disbarred, suspended or otherwise sanctioned. If this is what passes for adequate representation, then we have some serious explaining to do to all Americans who believe that our system is based on equal justice before the law, especially when we are going to sentence someone to die.

There is no greater sign that the court-appointed attorney system is not working than the post-conviction exonerations -- objective evidence that we are convicting the innocent and, in some cases, sentencing them to death. We should be able to depend on a working adversary system to sort the guilty from the innocent. But the post-conviction death row exonerees were not saved by the system. They were saved despite it -- long after prosecutors, juries and courts had declared them guilty.

In life, we might call the circumstances of such exonerations serendipitous. Imbedded within the context of our administration of the death penalty, they represent nothing less than a devastating breakdown in the meaning of justice.

The case of Earl Washington illustrates these points. In June of 1982, Rebecca Lynn Williams, a nineteen-year-old mother, was raped and murdered in her Culpeper, Virginia apartment. Almost a year later, Earl Washington, a twenty-two year old black man with an I.Q. in the range of 69, was arrested in neighboring Fauquier County for an alleged burglary and assault with a chair. From that moment on, Washington remained in police custody. After two days of interrogating him, police claimed Washington had "confessed" to a total of five different crimes, including the murder of Rebecca Lynn Williams.

Of the five "confessions," the first four were dismissed by the Commonwealth, in part because of the inconsistencies of the testimony and the fact that the victims declined to identify Washington. But the fifth victim was no longer alive to prove his confession false. Although Washington reportedly "confessed" that he raped and killed Rebecca Lynn Williams, subsequent questioning revealed that Washington did not know the race of his victim, the address of the apartment where she was killed or that he had sexually assaulted her. Washington described Ms. Williams as short when, in fact, she was 5'8", that he had stabbed her two or three times although the stab wounds on the victim's body numbered thirty-eight, and that there was no one else in the apartment when it was known that Ms. Williams' young children were in the apartment with her on the day of the crime. Only on the fourth attempt at a rehearsed confession did authorities accept Washington's statement and have it recorded in writing with Washington's signature.

Washington was able to pick out the scene of the crime only after being taken there three times in one afternoon by the police who, in the end, had to help him pick out Williams' apartment. The confession proved to be the prosecution's only evidence to link Washington to the crime.

Long after the conviction, psychological analysis of Washington described how, to compensate for his disability, Washington would politely defer to any authority figure with whom he came into contact.

At the guilt phase of the trial, the prosecution's case hinged on Washington's statements as well as his identification of a shirt found at the crime scene. Defense counsel failed to obtain or offer available evidence which would have seriously undermined the prosecutor's case, including: the Commonwealth's own serology report of the seminal fluid found on the blood-stained blanket where the victim was raped and stabbed, which excluded both Washington and the victim's husband; hairs found in the pocket of the shirt purportedly worn by Washington but had these hairs been compared to Washington's, would not have matched; inconsistencies between the details of the confession and the details of the crime; and Washington's substantial mental disability.

Instead, defense counsel put Mr. Washington, unprepared and perhaps unprepable, on the stand to testify that although he did sign the confession, its contents were false. Confused and without any guidance from counsel, Mr. Washington, who cannot name the colors of the American flag or the function of a thermometer, instead testified that he had never made the confession.

At the penalty phase of the trial, the defense failed to offer testimony or any argument in opposition to the death sentence. On January 20, 1984, the jury returned their verdict: death. Mr. Washington's direct appeal failed. In August 1985, with a September execution date imminent, another death row inmate, Joseph Giarrantano, alerted a prison volunteer and a lawyer visiting the prison on another matter of Earl Washington's story. The lawyer brought Mr. Washington's case to her New York law firm, where it was picked up pro bono. These attorneys files a state habeas corpus petition and secured a stay of execution for Mr. Washington nine days before he was scheduled to die.

In 1993, the United States Court of Appeals for the Fourth Circuit ruled that, although Washington had been denied his constitutional right to effective assistance of counsel at trial because of the defense's failure to introduce exculpatory biological evidence, this failure was "harmless" in light of the other evidence, namely the "confession." At this desperate point, the parties involved in the case agreed to conduct DNA testing on the biological evidence.

In October 1993, the test results revealed that Washington was excluded as a contributor of the seminal stain. Even with this conclusive proof of innocence, Washington was time-barred by Virginia Law from introducing new evidence (the law then had a time limit of 21 days after the original conviction but in response to Washington's exoneration, recent changes in Virginia law carve out an exception to the 21-day rule for DNA testing). Instead, on January 14, 1994, then-Governor Wilder commuted Washington's sentence to life imprisonment.

Washington remained in prison for six more years before his counsel persuaded the newly elected Governor Gilmore to seek additional DNA testing. On October 2, 2000, Governor Gilmore announced the exonerating results of the STR-based DNA test and granted Earl Washington an absolute pardon for the capital murder conviction.

Earl Washington's case is a perfect example of the very real consequences of not adopting the provisions of the Innocence Protection Act. For the vast majority of those sentenced to death, there are no volunteer lawyers or advocates who dedicate the necessary vast amounts of time to their pro bono cases. If Mr. Washington had been left without any post-conviction representation or denied post-conviction DNA testing, he would be dead.

We cannot rely on luck to discover the innocent. We do not know how many innocent people like Earl Washington have been sentenced to death. But we do know that innocent people will continue to be convicted and sentenced to death so long as the accused receive inadequate representation at trial and equally inadequate representation during post-conviction review. Unless Congress takes action and passes the Innocence Protection Act, hundreds of other factually innocent people, currently languishing in prison or awaiting execution, will never get the chance to prove their innocence, nor will the state have the chance to identify the real perpetrators. A system that ultimately depends upon the advocacy of a fellow inmate and a visiting lawyer to uncover actual innocence is not a working system, much less a system of justice. We are gravely naive if we perpetuate the belief that our system serves the ideals of justice. But we are fatalistically cynical if we believe that we do not have the power to make it better. The Innocence Protection Act brings us many steps closer to ensuring that we harness that power to ensure that all Americans receive the justice we deserve.