U.S. Attorney General Eric Holder has changed DOJ policy to bar U.S. Attorneys from requiring defendants to forever waive their right to DNA testing in standard federal plea agreements, as the EDCA U.S. Attorney's Office and many others currently do. As reported in today's Washington Post, 11/18/10,
The waivers have been in widespread use in federal cases for about five years and run counter to the national movement toward allowing prisoners to seek post-conviction DNA testing to prove their innocence. More than 260 wrongly convicted people have been exonerated by such tests, though virtually all have been state prisoners.
The waivers are filed only in guilty pleas and bar defendants from ever requesting DNA testing, even if evidence emerges that could exonerate them. Statistics show that innocent people sometimes plead guilty, often for a reduced sentence. One quarter of the 261 people who have been exonerated by DNA testing had falsely confessed to crimes they didn't commit, and 19 of them pleaded guilty, according to the New York-based Innocence Project.
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The waivers have been part of the standard plea agreement filed by some of the nation's most prominent U.S. attorneys, including those in the District, Alexandria and Manhattan. Defense lawyers say their clients are essentially forced to sign the waivers or lose the benefits of a plea agreement, such as a lighter sentence.
Holder's memo said the DNA waiver policy is inconsistently applied and is "too rigid to accommodate the facts presented by individual cases.'' As of last year, at least 19 U.S. attorneys' offices used the waivers for some or all plea agreements, while 24 U.S. attorneys did not use them. It could not be determined how many inmates have been affected by the policy, because the remaining U.S. attorneys' offices did not respond to inquiries or declined to comment.
Now, Holder's memo says prosecutors can only seek the waivers in "exceptional circumstances" and with a supervisor's approval.