DNA Legislation and the “Innocence Protection Act”
In the May/June 2003 issue of The Prosecutor the president’s initiative to “Advance Justice Through DNA Technology” was highlighted. Since then several actions have occurred with good and bad consequences for prosecutors.
In the House, the appropriations for the next fiscal year (FY04) include at least $174 million of the $232.6 million requested by the president to support his proposal. The Senate version of the appropriations bill is not available at this time but it can be assumed that it will include an amount close to the president’s request. That’s the good news.
Both the Senate and House, along with DOJ, have been crafting legislation to support the DNA initiative. The bad consequences for prosecutors may be from this legislation.
During the last two congresses the Innocence Protection Act (IPA) has been offered to establish national standards for post-conviction DNA testing and for competency of counsel in capital cases (see the Jan/Feb 2002 issue of The Prosecutor for more on the IPA). The House Crime, Terrorism and Homeland Security Subcommittee held hearings on July 17, on the president’s initiative with the chair, Congressman Howard Coble; Sarah Hart, director of the National Institute of Justice; and Peter Neufeld, Esq., co-founder and director of the the Innocence Project, testifying. (It should be noted that Ms. Hart is a former prosecutor from Philadelphia.) Chairman Coble was a cosponsor of the IPA during the last congress and made his support for the provisions of that legislation known in his statement (his statement can be found at http://www.house.gov/judiciary/coble071703.htm).
The hearing provisions of the IPA have now been added to the draft legislation supporting the president’s initiative. NDAA has steadfastly opposed the IPA and the addition of these provisions to a program that the association otherwise supports will be difficult to resolve, particularly if student loan forgiveness is added to the mix as was done in the last congress by the Senate Judiciary Committee.
The House draft of the legislation uses the title of the legislation that NDAA has been opposing for several years—“the Innocence Protection Act.” In the House draft, state eligibility for funding of DNA testing proposed in the president’s DNA initiative would be conditioned on the states’ adoption of federally established post conviction DNA testing provisions. The House IPA requires only that the DNA request be predicated upon “new, noncumulative evidence material to the claim.” NDAA has maintained the position that the basis for any post conviction testing must provide evidence of “actual” innocence.
One of the major provisions of the “original” IPA was the inclusion of a grant program to fund the defense in capital cases with the mandate that they adhere to federally adopted standards, and this has been included in the current bill. DOJ had proposed a balanced program that would provide equal funding for both the prosecution and defense in capital cases with most of the funding committed to enhancing prosecution and defense representation at the trial stage of capital cases. The IPA program now included in the draft provides $240 million over a four-year period for the defense in capital cases. These funds could be used for defense-related purposes at all stages of state court litigation in capital cases.
NDAA has not adopted a position on competency of counsel in capital cases.
It is unlikely that this can pass both houses of congress before the end of the first session, but the overwhelming support for the IPA in the House during the last congress makes passage almost a certainty if it comes for a floor vote.
Patient Safety and Quality Improvement Act
The bill, S. 720, introduced by Senator Jeffords (I-VT) is designed to allow medical facilities to contract for oversight and review activities to enhance their treatment practices. To permit the oversight organization to make full assessments of the activities of the medical facility and report issues and problems to management, the bill makes privileged this type of “audit” information. By amending the Public Health Service Act it makes patient safety data privileged and confidential by protecting it from subpoena, discovery, disclosure under the Freedom of Information Act (FOIA), evidentiary use or any credentialing or licensing situation.
There are exceptions. Criminal behavior reported to a patient safety organization (PSO) would no longer be privileged if a court finds there was an “intentional act that directly harms a patient.” That is the only exception for negligence or “reckless disregard.” This means that evidence concerning what management knew or should have known about criminal practices would be privileged if stemming from a patient safety organization.
The issues here are very similar to those encountered and opposed by NDAA with regard to environmental audit privilege. At that time the association position was built on the premise that a privilege under criminal law was to be narrowly limited to issues of great public concern and that business practices, as envisioned under both concepts, did not rise to this level of protection.
The bill will be going to the Senate floor for a vote in early fall. There is no comparable bill in the House at this time.
Attacks on the Patriot Act
The Patriot Act was passed in October 2001 to correct deficiencies in U.S. laws that were identified as vulnerabilities in countering terrorist activities. NDAA supported this bill and NDAA representatives were present when the president signed it into law.
One part of the Patriot Act ensured that law enforcement could use delayed notification warrants—a long-existing, crime-fighting tool upheld by courts nationwide for decades in crime and drug cases—to prevent tipping off terrorists in the war on terror and to unify the standards under which this tool was used.
This July, Congressman Otter (R-ID) offered an amendment to the DOJ Appropriations bill that would prohibit the use of funds if a court were to delay notice of a search warrant. This was adopted 309-118 by the House.
Delayed notice warrants can only be used with a court order and only in extremely narrow circumstances. Courts can delay notice only when immediate notification may result in death or physical harm to an individual, flight from prosecution, evidence tampering, witness intimidation or serious jeopardy to an investigation. Even with such a warrant, law enforcement must still give notice that property has been searched or seized. It simply allows agents, with court approval, to temporarily delay when the required notification is given. It is a violation of the act to fail to provide notice.
These delayed-notice warrants have been valuable tools both in countering terrorist activities as well as organized crime efforts. In United States v. Odeh, for example, a recent narco-terrorism case, a federal court issued a section 213 warrant in connection with the search of an envelope that had been mailed to a target of an investigation. The search confirmed that the target was operating a money exchange that was used to funnel money to the Middle East, including an individual with ties to the Islamic Jihad in Israel. The delayed-notice provision allowed investigators to conduct the search without fear of compromising an ongoing wiretap on the target and several of the confederates. The target was later charged and notified of the search warrant.
In another case while investigating a domestic terrorist group, federal agents followed one member to a “safe house.” After confirming the location was indeed a safe house location, court authority was obtained to plant hidden microphones and cameras. As a result, the investigators learned that weapons and ammunition were being stored in the safe house. A delayed-notice warrant was issued to allow agents to search the safe house and seize the ammunition and weapons and to eliminate the public-safety danger posed by these weapons without prematurely exposing the investigation. Several cell members were convicted of seditious conspiracy and other offenses.
DOJ hopes, with the support of law enforcement organizations such as NDAA, to have this provision removed from the final appropriations bill.
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