Justice Department Stops Policy On DNA Waivers

Robert Siegel talks to Washington Post reporter Jerry Markon about Attorney General Eric Holder's plan to end the practice of getting federal defendants to waive their right to use DNA evidence to re-open a case after a conviction.

ROBERT SIEGEL, host:

In recent years, DNA testing has measured the fallibility of the criminal justice system. The Innocence Project counts 261 people who've been exonerated after the physical evidence that was used to convict them of a crime was tested for DNA. In some cases, that's despite a confession by the innocent defendant.

We mentioned this because of a story that reporter Jerry Markon of The Washington Post dug up about a little known policy of the Justice Department. It evidently began in the Bush administration and has just been rescinded. Jerry Markon, why don't you explain this practice? What does it mean to seek a DNA waver in the course of a plea bargain agreement?

Mr. JERRY MARKON (Reporter, The Washington Post): A DNA waiver is a condition of a plea agreement in which the defendant in a federal case agrees to permanently sign away the right to ever have post-conviction DNA testing to prove their innocence. And these waivers are struck in plea negotiations and many Justice Department prosecutors had been essentially forcing defendants to sign them if they want the benefits of a plea agreement. For example, if they want the Justice Department to go into court and suggest a lighter sentence.

SIEGEL: This practice began during the Bush administration. Why did they start asking for these DNA waivers?

Mr. MARKON: It began in direct response to a law passed in 2004 called the Innocence Protection Act. That law established the right of federal prisoners to request post-conviction DNA testing for the first time. The Bush Justice Department vehemently opposed the law and lobbied against it and came up with the idea of these DNA waivers as a counterweight, I guess, to the provisions of the law. So the Justice Department put out a memo instructing prosecutors all over the country to seek these DNA waivers whenever possible.

SIEGEL: Now, what has Attorney General Holder done to alter this policy of trying to get DNA waivers in all the plea bargain agreements?

Mr. MARKON: He's reversed it. He put out a memo today saying that the 2004 DOJ memo, which established this as a policy and that memo had said that prosecutors should seek DNA waivers, you know, whenever possible and it ordered them to do that. Holder's memo basically said that's no longer operative. Holder pointed out that the policy was inconsistently applied, which my own reporting shows. I mean, some federal judicial districts use the waivers, many of the most prominent districts do, some don't.

And the Holder memo said that as a matter of general policy, prosecutors should not seek these waivers and only in exceptional circumstances should they be sought. They cannot be something that's just sort of done as a standard plea agreement, which is a significant change.

SIEGEL: Jerry, as I understand it, the number of federal felony cases that are brought in which there might be some physical evidence is still small compared to state courts, which handle the great (unintelligible) of armed robberies and homicides and the like.

Mr. MARKON: Yeah.

SIEGEL: Do you know if states actually put this commonly into plea bargain agreements? You can't get a future DNA test or do you know?

Mr. MARKON: No, they do not. Not only state officials told me they knew of no such policy at the state level, but the State Prosecutor Association, the National District Attorneys Association, what I told them about this federal policy, they opposed it. So, no, it was a federal court phenomenon that started in the Bush administration.

SIEGEL: Jerry Markon, thanks a lot for talking with us.

Mr. MARKON: Oh, you're very welcome.

SIEGEL: That's Jerry Markon, Justice Department reporter for The Washington Post.

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