By Jerry Markon
Washington Post Staff Writer
Wednesday, November 17, 2010; 7:56 PM
Attorney General Eric H. Holder Jr. is reversing a controversial Bush administration policy under which numerous defendants have waived their right to DNA testing even though that right is guaranteed under federal law, Justice Department officials said Wednesday.
Holder will issue a memo on Thursday to the nation's 93 U.S. attorneys, which overturns the practice of seeking "DNA waivers,'' said the officials, who spoke on condition of anonymity because the policy shift had not been publicly announced.
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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Holder's memo, according to sources who have seen it, says the DNA waiver policy is rigid and inconsistently applied. 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.
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"It never made any sense to force people, as a condition of a plea, to give up their right to future DNA testing, particularly since we know that factually innocent people plead guilty,'' said Peter Neufeld, co-founder of the Innocence Project. While few federal prisoners have sought post-conviction DNA testing, in part because of the waiver policy, Neufeld expects that number to rise.
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