FBI Laboratory Division Assistant Director Christian Hassell told members of a House panel Thursday that the bureau is reviewing ways to improve the efficiency of the national DNA database.

Christian Hassell (photo by Andrew Ramonas / Main Justice)

Hassell said his division is meeting with state, local and tribal law enforcement agencies to get input on how to decrease the backlog in the FBI’s National DNA Index System, which contains DNA profiles that are used by laboratories to help solve crimes.

“The FBI considers this review to be a regular, healthy activity resulting from improvements in technology and lessons learned from almost 12 years of experience in the operation of NDIS,” Hassell said in a prepared statement before the House Judiciary subcommittee on crime, terrorism, and Homeland Security hearing. “As the administrator of this national database, the FBI has an obligation to perform this procedural review to ensure that law enforcement agencies are not hindered by procedural limitations, thus limiting the number of samples added to NDIS and decreasing the efficacy of NDIS in solving crime.”

There are tens of thousands of untested “rape kits,” which are used to collect evidence after a rape. The data from the kits are then put into the NDIS. Rape victim advocates have pushed for legislation that would address the backlog.

Panel members expressed frustration with the untested kits.

“Compounding the terrible crime of rape itself is the fact that tens of thousands of rape kits, which hold the key to justice, are not being analyzed in a timely manner,” said Rep. Jerrold Nadler (D-N.Y.)  “That there is any rape kit backlog at all is simply wrong and intolerable.”

A former Assistant U.S. Attorney expressed remorse for his role in a murder conviction that was overturned because of DNA evidence, The Washington Post reported Saturday.

J. Brooks Harrington (First United Methodist Church)

J. Brooks Harrington, a one-time Deputy Director of the D.C. Superior Court felony trial division in the U.S. Attorney’s office, told the newspaper that he was devastated by news last December that DNA evidence proved that Donald E. Gates, the man he successfully prosecuted, wasn’t guilty of the 1981 rape and murder of a Georgetown University student.

“I can’t express how sick this has made me feel,” Harrington told The Post. “I was always trying to be about protecting people. To find out that I had the wrong guy is beyond description.”

The former prosecutor said he relied heavily on hair taken from Gates, which was discovered on Catherine Schilling, the 21-year-old college student who was discovered naked in Washington’s Rock Creek Park in 1981 with several bullet wounds to her head, according to the Post. Harrington also used a paid informant, whom Gates said he never met, according to The Post. Gates maintained his innocence throughout the trial, the newspaper said.

The exonerated man said in a letter to Gates that he forgave the former prosecutor and considers Harrington his friend, according to The Post.

“It’s one thing to say I ought to forgive and not have bitterness, but he really seems not to have any,” Harrington told the newspaper. “He was more than kind to me. He’s an amazing man.” Harrington is now a co-pastor at the First United Methodist Church in Fort Worth.

It was the first murder conviction overturned by DNA evidence in the history of the U.S. attorney’s office in the District, but Harrington told The Post that are still more people who will be exonerated by DNA evidence.

“Not only can this happen again, but it will,” Harrington told the newspaper. “Nobody has any interest in convicting somebody who didn’t commit a crime. You do your best with the evidence you have. I was just flatly wrong about it. I did my best, and it wasn’t good enough.”

The former prosecutor left the U.S. Attorney’s office in 1982 after he successfully prosecuted Archie Alston, who was later found innocent of shooting another man in Washington, according to The Post. Alston received a new trial after D.C. Superior Court judge criticized the defendant’s lawyer for “gross incompetence,” the newspaper said. Harrington dropped all the charges against Alston before the second trial was set to start.

The Justice Department is taking a second look at Bush-era guidelines that force some defendants to give up guaranteed rights to DNA testing, The Washington Post reported yesterday.

The DNA waivers have been used since 2004 to deny post-conviction testing to defendants who have given guilty pleas, The Post said. The waivers emerged after the Innocence Protection Act of 2004, which permitted federal prisoners to request DNA tests after their convictions to show their innocence, the paper reported. DNA tests have cleared more than 240 federal inmates of crimes they did not commit, according to The Post.

“The Attorney General believes that DNA testing is a crucial law enforcement tool both in solving crimes and exonerating the innocent,” DOJ spokesperson Matthew Miller told The Post, adding that “prosecutors have an obligation to act” if new evidence is discovered after a conviction.

The Bush Justice Department lobbied against the legislation. DNA testing for convicted defendants who submitted guilty pleas would be “an unjustified attack on the integrity of guilty pleas which . . . are the means by which most cases are resolved,” according to a Bush DOJ letter to the Senate Judiciary Committee. which was obtained by The Post. Language allowing the waivers was inserted into the bill at the request of Republican senators, according to the paper.

The Justice Department in 2004 issued a secret memo to all the U.S. Attorneys advising them to use the waivers, The Post reported.

At least 24 of the 94 U.S. Attorney offices do not use the waivers, according to The Post. Waivers are issued by 19 U.S. Attorney offices including prosecutors in the District of Columbia, the Southern District of New York and Eastern District of New York, the paper reported.

“It saves us a lot of spurious litigation down the pike,” acting U.S. attorney for the Middle District of Georgia G.F. Peterman III told The Post. “All they have to do is say I’m not guilty, go to trial and they’ve waived nothing. It’s their decision.”

Peter Neufeld, co-director of the New York-based Innocence Project, told the paper that the waivers were a “mean-spirited policy.” He added that the waiver were essentially “gutting the impact” of the 2004 legislation since almost all federal convictions come from guilty pleas.

“Truth, ascertained by science, should trump the finality of a conviction,” Neufeld told The Post.

So, last week the Supreme Court ruled that criminal defendants have no constitutional right to access DNA evidence after they are convicted — a position defended by the Justice Department.

The department’s decision not to disavow the Bush-era stance, to the utter disappointment of innocence advocates, underscored ”the tension between the eagerness of interest groups for a new administration to change direction, and the institutional reluctance in the solicitor general’s office to shift gears too suddenly, for fear of losing credibility with the high court,” The National Law Journal’s Tony Mauro wrote in this February piece.

Last week, we reported that Attorney General Eric Holder seemed to address that tension, distinguishing between “what is constitutional” and “good policy.”

In his speech at the at the American Council of Chief Defenders Conference in Georgetown, Holder once again explained the department’s stance on the issue:

The Department’s commitment to ensuring that justice is done is why, for example, I think defendants should have access to DNA evidence in a range of circumstances. DNA testing has an unparalleled ability to exonerate the wrongfully convicted as well as to identify the guilty. As you know, the Supreme Court held last week that there is no substantive due process right to access DNA evidence in post-conviction proceedings. But the Department distinguishes what is constitutional from what is good policy. And we have maintained that in a full and fair justice system, it is good policy to permit such access. Federal law already guarantees access to DNA evidence held by the federal government under specific conditions, and I hope that all states will follow the federal government’s lead on this issue.

Forty-seven states already have, and Alaska, where District Attorney’s Office for the Third Judicial District v. Osborne originated, is considering an access law. Massachusetts and Oklahoma are the only states without laws on the books.

The Department of Justice will support the Bush administration’s position in District Attorney’s Office for the Third Judicial District v. Osborne, turning down a request from the Innocence Project to reverse the previous administration’s position, reports BLT: The Blog of Legal Times.  The case involves prisoners’ access to DNA evidence in postconviction proceedings in the state of Alaska.  Alaska’s view is that prisoners do not have the constitutional right to obtain DNA evidence to help them prove their innocence, even if the prisoners pay all of the expenses.

President Obama’s decision in this matter has caught some by surprise, given the success of DNA evidence in exonerating prisoners, as well as the president’s support for access to DNA evidence when he was a state senator in Illinois.

The specifics: In 1993, William Osbourne was convicted of sexual assault and kidnapping in the death of a prostitute.  During the trial, Osbourne’s lawyer did not request a DNA test of semen in a condom found at the scene of the crime.  When Osbourne appealed his conviction, Alaska courts said he was not entitled to DNA evidence for testing.  That ruling was reversed by the U.S. Court of Appeals for the Ninth Circuit, and now Alaska has brought the case before the Supreme Court.

Deputy solicitor general Neal Katyal will be representing the government, while Peter Neufeld, co-founder of the Innocence Project, will represent Osbourne.